News in brief 3rd February 2015

Mediation in the sun

The ACL has announced two week-long costs mediation courses; one taking place in London from 15-19 June and the other in Malaga from 21-25 September.

The training will be delivered on the behalf of ACL by the London School of Mediation’s Faculty, led by barrister Jonathan Dingle FRSA. It costs £1,200+VAT. In London, the price includes lunch and refreshments each day and dinner on Thursday evening. In Malaga, it includes four nights’ accommodation in a 4* hotel, refreshments and dinner on Monday and Thursday evening.

There will be a programme of networking and social events during the week and, after the course is finished, participants will be issued with an open-book examination (which they will have to complete within 14 days).

Following the course, which provides 25 hours of CPD, delegates will have individual feedback and coaching sessions by the faculty. There will also be a consolidation and fluency day offered in London or Manchester later in the year to build on the skills. These are included within the delegate price.

For more details and to book, see the ACL website.

Neuberger: Give costs management time

Costs management is not perfect and will still take some time to bed down – but it is worth the effort, the president of the Supreme Court has said.

In a speech in Manchester, Lord Neuberger said costs management was “well justified” for two reasons. “First, it enables the court (or the parties) to indulge in effective and targeted case management: it concentrates minds on specific management issues early on in the procedure, which means much more effective case management.

“Secondly, elementary logic suggests that, in order to decide whether to fight or to settle a case, in order to decide how much time and effort to devote to a case, it’s not enough to know the chances of success and the extent of the potential damages or other relief: a litigant also has to factor in the cost of winning or losing.”

Lord Neuberger conceded that the “ironic downside” was the front-loading of costs. “I know that there are those who say that costs management will fade away, and it would be arrogant to suggest that they are definitely wrong. But I hope and believe that they are wrong, although I accept that it will take some time for costs management to bed down fully into the system.”

He also said he was “more than disappointed” that Lord Justice Jackson’s call for fixed fees across the fast-track had not yet been heeded, even though he made the recommendation more than four years ago.

“Although they represent significantly rougher justice than the costs management route, they have the advantage of consistency across the system and no extra costs and time in preparing and considering costs budgets… Indeed, I would hope that fixed costs might be extended to the smaller multi-track cases.”

Supreme Court denies ATE recovery

A claimant who won his appeal in the Supreme Court against the Scottish Legal Aid Board could not recover the after-the-event insurance premium he took out to protect himself, the court ruled last week.

The court can make an award in relation to “the whole or any part of any expenses incurred by [a legally unassisted party] so far as attributable to any part of the proceedings in connection with which another party was a legally assisted person”.

The relevant provisions of the Supreme Court Rules and Practice Direction 13, and the Rules of the Court of Session allow expenses which are reasonably incurred. The Supreme Court ruled that the ATE premium was reasonably incurred but that, in the absence of any express provision permitting it, an ATE premium would not be recoverable as it is simply not part of the costs of the appeal as a matter of ordinary language.

This position was confirmed by both English and Scottish authority. Supreme Court President Lord Neuberger said: “In the absence of agreement or a specific statutory sanction (either expressly or through valid delegated legislation) to the contrary, a successful party to litigation cannot recover an ATE premium, however reasonable it was to have incurred it, as part of his costs or expenses of legal proceedings.”

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11 Mar 2015

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