Page 14 - PIC Magazine Issue 21
P. 14

    CIVIL COSTS ARTICLE
     BACK TO
  THE FUTURE
    ‘If there is nothing to record, I shall record the nothingness...’
The Children of Men, P.D. James, 1992
he impending expansion
of fixed costs continues
to bear down upon us all, not slowed by a further consultation or judicial review, and with the innate positivity common in the profession, practitioners may well be looking for silver
linings in the otherwise midnight blue shroud being draped over civil claims.
With the purpose of fixing costs to remove them from the scope of assessment, it may be tempting to think that at least some shimmer could be found in a reduced need to keep detailed records of work done. Fee earners should, however, be particularly wary of making that assumption; appropriate file management and records of information will remain
key to ensuring claims can be run efficiently and effectively, but there are also many instances in which you can expect to have your costs (and therefore your file records) subject to the scrutiny of the Court.
‘Begin at the beginning... and go on till you come to the end: then stop.’
Alice’s Adventures in Wonderland, Lewis Carroll, 1865
A case that was initially thought to be within the scope of the intermediate track for instance may ultimately be allocated to the multi track (unfettered by the constraints of fixed costs), you may seek by one means or another (as discussed below) to obtain something more than fixed costs, or you may face an assessment against your own client. You will likely not know in advance
on which file an assessment may take place, and the only safe approach is to be vigilant on all matters.
Costs Judge Rowley noted in Lyle & Fox – v – Bedborough [2022] EWHC 1628 (SCCO) that on an assessment
of costs on the standard basis, in the absence of attendance notes explaining what was done, doubt will be resolved in favour of the paying party. Whilst
that is a reflection of CPR 44.3, in practice, an absence of attendance notes supporting the work done is likely in many instances to dictate the same approach on an indemnity basis, against either your client’s opponent or your own client.
With the purpose of fixing costs to remove them from the scope of assessment, it may be tempting to think that at least some shimmer could be found in a reduced need to keep detailed records of work done.
Clarke J summed it up in Fattal – v – Walbrook Trustees (Jersey) Ltd [2009] EWHC 1674 (Ch), ‘here the reduction was very large and the reason for
the reduction was in large measure because the solicitors had failed to keep attendance notes. Such a failure materially contributes to the length and cost of assessment proceedings... It leads to a scrambling around among the papers when the costs are queried to seek to work out what was done at different stages often without any clear answer, followed by a guessing game on the part of the Costs Judge.’
    14 INDUSTRY EXPERTS
Partners In Costs
  











































































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