News in brief – 30.07.2020

Kain named as new CADR chief

Renowned Costs Lawyer Michael Kain has been appointed as chief executive of Costs Alternative Dispute Resolution (CADR). The service – whose panel includes seven Costs Lawyers and many leading members of the costs Bar – was launched in 2016 and is one of two providers of costs ADR services to NHS Resolution.

Mr Kain said: “The future of costs assessment must be in mediation. Even before lockdown, the court system was already under pressure and backlogged.”


Counsel’s fees not recoverable in portal case that settled before trial

Counsel’s fees for preparing for an RTA protocol case that exited the portal and settled on the eve of trial were not recoverable, the Senior Courts Costs Office has ruled.

Coleman v Townsend was an appeal from an oral review of a provisional assessment in a case where the costs were governed by section IIIA of part 45.

The defendant made a part 36 offer just over 21 days before trial. There was an order for skeleton arguments to be exchanged two clear days before trial, so the relevant period of the offer included the due date for the skeleton arguments. The claimant accepted the defendant’s offer the day before trial and sought their costs of the ordered skeleton argument and abated brief fee.

At first instance, Costs Officer Martin disallowed counsel’s fee for drafting the particulars of claim, but allowed the fee for the skeleton argument and abated brief fee. The defendant appealed; the hearing was adjourned part-heard pending the decision in Aldred v Cham.

On resumption, Master Haworth allowed the appeal, finding that the costs of preparing for trial included preparing the skeleton argument and that stage had simply not been reached.

He said: “The costs in Table 6B set out the recoverable costs for each stage of the claim which no longer continues under the RTA protocol and include all the work which could reasonably be expected to be carried out for each stage. In relation to Table C, that specifically includes the trial advocacy fee and implicitly the costs of preparing for the trial which self-evidently would include a skeleton argument.

“That stage was not reached in this case. The day of the trial was not yet at hand. It follows that both the claim for the preparation of the skeleton argument and an abated brief fee fall within Table B, which includes all work ‘on or after the day of listing, but prior to the date of trial’.

“I am not persuaded by the respondent’s arguments that Aldred has no application in this case and that these disbursements fall squarely within CPR45.29I(2)(h) where the court can allow any other disbursement incurred due to the particular feature of the dispute, in other words some particular characteristic of the claim rather than the claimant.

“I do not accept the respondent’s argument that these disbursements by way of counsel’s fees were either properly or reasonably incurred. It follows that the appeal succeeds. Both counsel’s abated brief fee and the fee for the preparation of the skeleton argument are disallowed.”

Sarah Robson (instructed by Weightmans) for the appellant, with Benjamin Williams QC (instructed by Bond Turner) for the respondent.


Capped costs pilot ends with just one use

The capped-costs pilot has ended with just one case run through it and the model will not be taken forward, the Civil Procedure Rule Committee has decided.

The similar insolvency express pilot has also been ditched after attracting no cases at all over four years.

The opt-in capped costs pilot began on 14 January 2019 and was available for all cases in London, Manchester and Leeds worth up to £250,000 where the trial was expected to require no more than two days. Costs were capped at £80,000.

The only case run under it was Faiz v Burnley Borough Council [2020] EWHC 407 (Ch), in which His Honour Judge Halliwell, sitting in Manchester as a High Court judge, commended the parties for their “significant degree of collaboration” to make it work.

The insolvency express trials pilot was launched on 1 April 2016 and involved cases where the costs of each party would not exceed £75,000.

A paper before the committee said the aims of both pilots “remain laudable” as efforts to increase the accessibility of the Business and Property Courts to businesses with “medium-value” claims.

It went on: “It is important, though, to be realistic and accept that they have not been a success, and have failed to capture the imagination of courts users in the same way as the [Intellectual Property Enterprise Court scheme on which they were modelled].

“This could be for a number of reasons – lack of promotion and the success of costs budgeting for medium-value claims among them. They should not, in any event, be extended any further.”

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Costs News
Published date
30 Jul 2020

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