News in brief – 16.11.2017

Costs Lawyer joins the Bar

Costs Lawyer James Miller (pictured) has cross-qualified as a barrister, joining national chambers Clerksroom from defendant insurance law firm Keoghs to specialise in costs, personal injury and clinical negligence.

Mr Miller was able to cross-qualify because he is also a solicitor, although the Bar Standards Board requires him to give up his Costs Lawyer practising certificate. He remains an affiliate member of the ACL.

He has spent nearly a decade on the defendant side, although he said he has handled some claimant work too. He qualified as a solicitor at Manchester firm Horwich Farrelly, before joining Irvings Law in Liverpool to specialise in costs, followed by costs firm Acumension and then Keoghs.

Mr Miller said he moved to the Bar because he was already doing a lot of advocacy in his previous role and wanted to diversify his practice. Aside from now being self-employed and working from home – in line with the Clerksroom model – he said there was not much difference with his life as a Costs Lawyer.

He is also a registered mediator with the Civil Mediation Council and accredited to accept public access work. Mr Miller said his client care work as a solicitor gave him the confidence to accept instructions directly from members of the public.


Costs cap floated for property tribunal cases

The Tribunal Procedure Committee (TPC) has issued a consultation on whether to reintroduce the costs cap when unreasonable behaviour is sanctioned in leasehold and residential property cases before the First-tier and Upper Tribunals.

There is no costs shifting in property chamber tribunals, but they can award wasted costs or costs arising from unreasonable behaviour. The cap on the latter was removed in 2013.

However, the TPC said there were concerns that the regime in rule 13(1)(b) of the Property Chamber Rules was open to abuse. “Litigants may threaten a costs award in the hope that a claim might not be initiated, or if initiated be withdrawn, or the claim be settled on terms reflecting the threat having been made,” it said.

The TPC said the absence of a cap “may impede access to justice on the part of a litigant (or prospective litigant)”, while the sums claimed, and indeed awarded, for costs “may far exceed the value of the claim itself and may amount to tens of thousands of pounds”. Tribunal judges reported more applications being made than before 2013.

The ruling in Willow Court Management Company (1985) Limited v Alexander [2016] UKUT 290 (LC) emphasised the role of proportionality and the overriding objective, in exercise of the judicial discretion, the TPC said.

“That said, if the ‘uncapped’ jurisdiction continues to exist, then even a low chance of it being exercised in excess of the sums in issue may be thought worth the application being made. Again, that necessarily obliges the other party to expend its own cost on resisting the application, and unless such application is itself ‘unreasonable’, then that cost will be irrecoverable.


Court orders indemnity costs on discontinuance

The High Court has unusually issued indemnity costs after a claimant discontinued its case, finding that “the claim was properly to be characterised as speculative and weak, both in fact and in law”.

Ms Sara Cockerill QC, sitting as a High Court judge in Two Right Feet Ltd v National Westminster Bank PLC and Ors [2017] EWHC 1745 (Ch), said that “the factual inaccuracies, and, indeed, the extremely contrived and insubstantial nature of the claim brought, are particularly to be deprecated given that the claim was not brought by an inexperienced non-professional, but by an experienced professional liquidator”.

She identified a host of failings on the part of the claimant, including commencing the proceedings without investigation or engaging in a pre-action protocol, and general conduct of the case, most notably around disclosure. The judge said: “The approach to disclosure goes beyond being extraordinarily casual; it seems to have been thoroughly misconceived and wrongly gone about and, certainly, not compliant with CPR obligations and not helpful.”

She concluded: “It seems to me that this is one of the unusual cases, where one can ask oneself: does something in the way that this case has been advanced or conducted carry the case out of the norm, and answer that, yes, this is such a case.”



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Costs News
Published date
15 Nov 2017

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