Page 6 - PIC Magazine Spring Issue 15
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      Sean Linley is a Costs Consultant at PIC’s office in Newcastle and a regular contributor to the PIC Magazine. Here he provides a run-down of those all-important cases from 2019.
The Most Important Cases of 2019
                   This is our first edition in 2020 and it would not be complete without at least one retrospect on 2019. The year saw the Notre Dame Cathedral in flames, the on-going rise of young climate activist Greta Thunberg and the impeachment of the
US President but what about the world of costs? Here we take a look at some of the year’s most influential costs decisions:
It is reasonable to issue proceedings to recover costs.
The decision in Ayton v RSM Bentley Bennison & Ors [2018] EWHC 2851 (QB) was handed down in November 2018.
The case saw the Defendant refusing to pay costs of a professional negligence claim brought against them resulting in the Claimant issuing proceedings to recover costs.
In January 2019, permission to appeal was refused by the Court of Appeal resulting in the Defendant meeting the Claimant’s costs in excess of £460,000.00.
Costs Judge was right to summarily dismiss a challenge to work done on documents where the objections to all items claimed were that such time was generally excessive.
A source of frustration for many receiving parties is an objection stating that costs are ‘excessive’ but with no explanation as to why this is believed. In the case of Kjerulf Ainsworth v Stewarts Law LLP [2019] EWCA Civ 897 the Court summarily dismissed objections which did not explain which particular items were objected to. It’s a useful case to have in your back pocket where the paying party fails to particularise its objections. It is worth noting though that this is a case which stems from a solicitor own client assessment where the paying party had access to the receiving party’s file. This decision
was upheld by the Court of Appeal in February this year and its findings are undoubtedly relevant to not only solicitor own client assessments but inter-partes assessments too.
The fact a phase is “substantially incomplete” is capable of being a good reason to depart downwards from an approved Costs Budget
Technically the judgment in the case of Barts Health NHS
Trust v Salmon was given in January, but as it wasn’t publicly available until March, we’ve picked it here. A significant decision as it seemingly opens up budgeted costs to assessment even where there is a CMO. A case which continues to divide opinion and it’s likely we will see this decision tested throughout 2020 (and indeed it already has been with the handing down of Chapman v Norfolk & Norwich UHNHST [2020] in March).
Pre-LASPO 100% success fees post-LASPO
April saw the Court of Appeal examine the practice of 100% success fees being charged to clients in the post-LASPO world in Herbert v HH Law [2019] EWCA Civ 527. It was found that unless the client was advised when the CFA was entered into that the success fee was not set on the basis
of the risks of the case, then it will be open to challenge. The judgment, however, made it clear that it would not be possible to challenge an ATE Premium on a Solicitors Act assessment. It remains to be seen what long-term effect the decision will have but it is undoubtedly one of the most influential judgments of 2019.
Costs Sanctions where Bill of Costs did not match the Costs Budget
Another important reminder of the close relationship of
the Costs Budget and the Bill of Costs. In May the reserved judgment in MXX (a Protected Party by her husband & Litigation Friend RXX) v United Lincolnshire NHS Trust [2018] EWHC B23 was given. Where there were discrepancies in respect of both time and hourly rates between the Costs Budget and Bill of Costs the appropriate sanction was to disallow all time relating to Costs Budgeting. Notably, the discrepancies in time were not seen as prejudicial with Master Rowley stating that it would be unreasonable to expect a party to vet the time recorded on a line by line basis and
nor was it unreasonable for a solicitor to include time in
the budget which the client was potentially liable to pay. Nonetheless an important warning on the need for accuracy.
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