News in brief – 29.03.2018

Call to register interest in Costs Lawyer course
ACL Training is asking anyone considering the Costs Lawyer qualification to register their interest. The three-year course is currently under review and ACLT is seeking revalidation of the course with a view to welcoming an intake this September. ACLT are therefore asking potential students to express their interest by emailing before 1 June 2018.


Costs judge applies Budana

What may well be the first application of the Court of Appeal’s ruling in Budana, over the assignment of conditional fee agreements (CFAs), has taken place in the SCCO in a case involving well-known boxing promoter Frank Warren.

His solicitor left her then firm, PSB Law, on 14 September 2013. On 30 September, PSB ceased to practise as a firm of solicitors but remained open to conclude administrative matters. On 25 November, PSB entered into an ‘agreement to assign’ the two CFAs under scrutiny with Hill Dickinson. The assignment date was stated as 1 October 2013.

Mr Warren challenged the validity of this. Budana was handed down after the hearing, meaning both parties provided supplemental written submissions to address its implications.

In his ruling, Master Leonard said there was no “material distinction” between the facts of this case and of Budana. “It seems to me that it cannot be correct to say that the [CFAs] were terminated on PSB’s ceasing to practise on 30 September 2013.

“First, that proposition relies upon [Mr Warren’s counsel Andrew Nicol’s] attempt to distinguish between (in Budana) Baker Rees being unable or unwilling to continue representing its client, and (here) PSB’s ceasing to practise as a firm of solicitors.

“To my mind, there cannot be any material distinction. The effect, as regards performance of the relevant contract, would be precisely the same.


QOCS partially disapplied in ‘mixed claim’

A High Court judge has followed last year’s decision by Mr Justice Morris to partially disapply qualified one-way costs shifting (QOCS) in so-called ‘mixed claims’.

Making an order that will cost Faiz Siddiqui up to £75,000, Mr Justice Foskett found that, while much of his failed claim over the negative impact on his career of a course he undertook at Oxford University was for psychiatric injury (PI), there was also a claim for pure economic loss that was exempt from the impact of QOCS.

There was an argument over whether an overlap between the evidential basis for a PI claim and a non-PI claim precluded the operation of the rule, but Foskett J agreed with Morris J’s ruling last year in another mixed claim, Jeffreys v The Commissioner of the Police of the Metropolis, that it did not.

He said “the essential question” was whether the claims advanced were for different forms of loss, one attributable to PI and the other not. “That being so, I consider that the circumstances of the present case do fall within the exception provided by CPR 44.16(2)(b).”

Foskett J that his initial view was that an order for one-third of the costs would be appropriate, “but to ensure that the legitimate QOCS protection is not lost, I have reduced that proportion to 25%”.


Law Society urges legal aid means test change

People on incomes 10% to 30% below a minimum living standard are being excluded from legal aid due to the means test, the Law Society has said, as it called on the government to restore the means test to its 2010 real-terms level.

There also needed to be a review to consider what further changes are required to address the problems exposed by the report the society commissioned from Professor Donald Hirsch of Loughborough University.

The society pointed out that, last summer, the Supreme Court declared that employment tribunal fees were unlawful because households on low incomes were expected to sacrifice an acceptable living standard to afford legal costs.

“The same effect is being meted out by an excessively restrictive formula that determines whether someone is entitled to civil legal aid,” Law Society president Joe Egan said. “No-one in modern society should have to choose between accessing the justice system and a minimum living standard.” Until 2010, the means test levels were uprated every year in line with inflation.

The report said further hardship was caused by the fact that, even for people on the lowest incomes who rely on means-tested benefits, there is a capital means test that treats the equity in their homes as funds available towards legal costs.

Joe Egan added: “We are calling on the Ministry of Justice to review the means testing regime in accordance with their obligations under the Legal Aid, Sentencing and Punishment of Offenders Act 2012. We are also asking that they exempt those on means-tested benefits from capital assessment.”

Professor Hirsch added: “The assumption that someone could sell their home to cover a legal bill is out of line with other forms of state means-testing – such as help with care costs, where the value of your home is ignored if you or your partner still live in it.”


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Costs News
Published date
28 Mar 2018

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