Page 13 - PIC-Magazine-Issue23-Autumn-Winter-24

A 25% reduction to the costs of the costs management hearing is perhaps not too frightening a prospect, but a note published more recently by Master Brown in March this year, already referred to by Masters in the KBD, highlights the case and the Court’s discretion as to costs, in order to assist parties in advance of cost management hearings in the King’s Bench Division involving high value personal injury claims. It highlights various issues, and provides some guidance on particular points that might be expected to keep parties apart in their views of budgets, significantly as follows:
Where parties are permitted opposing experts, the Court makes
a general assumption that there will be a dispute between them up to and including trial and will budget accordingly, whereas if there is no material dispute between experts following service of reports or joint statements, this will in general constitute good reason for departing from a budget. Parties can agree budgets on the basis of an assumption of the number of days attendance by experts, recorded in the Order, and the allowance can be adjusted later by use of the
good reason test.
The Court doesn’t
set rates but may have to consider their reasonableness; they can’t be reserved to assessment per Yirenkyi v Ministry of Defence [2018] EWHC 3102 (QB).
It is not for the Court to
decide whether there should
be leading counsel/junior counsel/ two counsel, but experienced juniors are commonly instructed in claims of substantial value. If two counsel are instructed, it may impact on senior solicitor time, and work will likely be shared between counsel so instruction of a junior would be expected
to reduce leading counsel’s involvement.
The Court may consider what work should be delegated, e.g. the note expresses the view that grade D fee earners will typically obtain medical records, and substantial involvement of higher grade fee earners may be unreasonable (though reviewing such records would justify a higher grade).
It is not for the Court
to consider who should draft a schedule of loss, but in complex schedules, counsel’s greater familiarity in dealing with pension claims and loss of earnings subject to various contingencies may mean the work is reasonably done by counsel.
The Court has to consider reasonable
and proportionate expert fees, not just allow what they assert, though in general, fees claimed by experts instructed by NHSR or insurers will be less than those instructed by claimants.
Expert conferences can often be done remotely, though in-person attendance may be justified, e.g. in clinical negligence cases where close scrutiny of scans or x rays is required.
In most cases solicitors can be expected to keep a running electronic bundle of documents, bookmarked and added to as and when required, where the assembling and pagination of bundles will generally be regarded as administrative.
Unless it’s clear one
will not be required or is inappropriate, it is not normally an objection to provision for a JSM in the ADR phase for one party to say it is unlikely; a JSM can be budgeted on the assumption one takes place, and if not it will constitute good reason to depart from the budget.
There is a general expectation that first drafts of witness statements can be dealt with by grade C fee earners.
Even in high value cases
it may not be reasonable for a senior fee earner to attend throughout trial, and it is generally reasonable to take as a starting point 7 to 8 hours per day for fee earner attendance, though additional work may
be required.
A PTR hearing is not normally required in the KBD, and usually costs of 2 or 3 hours plus court fees will be allowed.
Useful insight then as to how parties can avoid kitchen-sink budgets and plan their future spend so as not to be considered entirely outside the bracket of realistic contention,
or alternatively highlight the issues that the Court will likely need specific explanation and argument on.
www.pic.legal Autumn & Winter 2024
PARTNERS IN COSTS 13