News in brief 9 February 2017

Council update – new vacancy, new VP

Jessica Swannell has stood down from the ACL Council, less than a year after being elected. She said: “Despite my short time on the ACL Council, I have gained significant knowledge and worked with some fantastic people who really do care about our future profession. Unfortunately, due to work commitments, I am unable to dedicate as much time to being a member of the ACL Council and therefore I have unfortunately stepped down.”

Members should this week receive a separate email seeking nominations to fill this vacancy and then one caused by Stephen Averill standing down late last year.

Finally, the Council has appointed Francis Kendall (pictured), a partner at Masters Legal Costs Services and recently re-elected for his second term, as the ACL’s vice-chairman.


Conference swap

The ACL Council has decided to swap the conference timetable this year so that the one-day Manchester conference will be on 22 May and the two-day Annual Conference on 20-21 October.

The Council made this decision on the basis that, with a very large number of students qualifying on the new course this year, it wanted to have an awards ceremony soon after. Therefore, there will be a presentation of certificates late on the Friday afternoon at the conference in October.


Currency conversion confusion

Mr Justice Coulson has rejected an application to recover further sums by way of currency fluctuations on costs, contradicting the ruling late last year of Mr Justice Arnold.

Arnold J awarded a successful German claimant an extra £20,000 to compensate for its exchange rate loss on payments to its solicitors, particularly in light of the significant fall in the value of sterling against the euro since the EU referendum result.

That decision was cited to Coulson J in MacInnes v Gross [2017] EWHC 127 (QB), but he said the circumstances here were different: Arnold J was dealing with a summary assessment where he had particular figures to consider, and evidence as to how those figures had arisen.

“I have neither: there is simply a claim that, to the extent that the first defendant has suffered such a loss, he is entitled to be compensated. I am instinctively reluctant to make such an open-ended order.”

He said he was also “uncomfortable” with the idea that an award of costs should be treated as an order for compensation, as if it were a claim for damages.

Coulson J continued: “I consider that there are inherent differences between the two regimes, and that orders for costs have never been regarded as compensating the payee for the actual costs that he has paid out. On the contrary, unless the payee has an order in his favour for indemnity costs, he will never recover the actual costs that he has incurred.”

Finally, he did not see the close analogy between ordering interest on costs, which was commonplace, and ordering exchange rate losses due to the particular time that the costs were paid, which was not.

“The paying party can work out in advance the additional risk created by the potential liability to pay interest on costs, but any potential liability to pay currency fluctuations is uncertain and wholly outside his control.

“Furthermore, it might be argued that the generous rate of interest on costs at 4% over base is designed to provide at least some protection to the payee against such events.”

In the same decision, the judge also stated that when calculating an interim payment on account of costs, the court’s starting point “will almost always be the payee’s approved costs budget”.

This post was posted in ACL e-Bulletin

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ACL News, Costs News
Published date
10 Feb 2017

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