Costs News

01 October 2015
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News in brief 1st October 2015

Fixed fees for deafness cases on the cards
Noise-induced hearing loss (NIHL) claims are set to be the next area subject to fixed costs after they were made the priority of the Civil Justice Council (CJC) group asked by the Ministry of Justice to investigate such cases.

The government asked the CJC to take on the project in July and, in addition to looking at fixed costs for NIHL cases (“and perhaps other similar cases”), the working group is to investigate how the handling of claims might be improved by both claimant and defendant representatives, including specifically how evidence is obtained and presented.

The newly published terms of reference for the group make it clear that the initial work on fixed fees will relate to the possible structure of such a regime, rather than the actual fees themselves.

“The group may outline more than one optional structure. The structure(s) will be informed by the proposals for improved handling under [the second limb of the work], which could include both pre‐ and post‐issue procedures and the way in which medical evidence is commissioned.”

It is envisaged that the working group will operate in two stages. First, having identified the concerns of both claimants and defendants and their lawyers over the conduct of NIHL claims, “it will discuss and agree broad ideas for handling cases that would help meet those concerns. It will also outline a possible overall structure (or structures) for a fixed costs system”.

Second, in the light of initial feedback from the Ministry of Justice, it will look in more detail at how these could be implemented. “This work may include recommendations as to the level of fixed costs themselves or how they could be calculated.”

The group aims to make an initial report to the CJC by no later than November 2015 and a final report to the council’s April 2016 meeting. It is chaired by leading defendant solicitor Andrew Parker, head of strategic litigation at DAC Beachcroft, with David Marshall – former president of the Association of Personal Injury Lawyers and currently chairman of the Law Society’s civil justice committee – as vice-chairman.

Costs schedule reminder
From today, parties going into detailed assessment where a costs management order has been made have to serve a schedule containing a breakdown of the bill by reference to the budget phases. The addition to part 47 and to the practice direction have now come into force. Alongside this, the voluntary pilot of the new bill of costs begins in the SCCO this month, to allow for evaluation and feedback and any necessary amendment. The next step will be to make the new bill of costs mandatory, although Alex Hutton QC, who chairs the working party drafting the new format, told last week's ACL conference in Manchester that this is now likely to happen in October 2016, rather than April as had been the intention.

CJC: No costs estimate needed in new JR regime
The Civil Justice Council (CJC) has told the government that there should be no requirement on applicants for judicial review to provide an estimate of costs as part of the new provisions that will require them to complete a declaration of financial resources before permission can be granted.

Responding to a consultation issued to implement provisions contained in the Criminal Justice & Courts Act 2015 (see 30th July eBulletin), the CJC said: “This will be a task beyond many litigants in person or other smaller organisations without access to legal advice. In any event, it may not be clear at application stage what the full costs of a case are going to be, e.g. whether expert witnesses will be required.”

Asked whether the proposals should apply to all applications, the CJC said it was difficult to see how a system of making exceptions could be administered – “although the paper suggests charities for an exemption, but many charities bringing judicial reviews have in-house legal resources, in stark contrast to individuals who will not have any access to professional legal advice and representation”.

As to the proposed £1,500 threshold above which the identities of third-party funders should be disclosed, and possibly face a liability for costs later on, the CJC said: “The paper makes clear that the available data suggests that costs for applicants in judicial review proceedings are in the region of £11-22,000. Given this, the suggestion of a £1,500 threshold has a policy objective of identifying relatively small contributions from third parties.

“How useful that level of data is felt to be is a matter for the government, and how much conclusion can be drawn on ‘control’ of a claim from a contribution of that level from a third party is open to conjecture. A higher threshold would be a clearer indicator of committed third party support for an application, say £2,500.”

The CJC repeated its objection to judicial review applicants having to provide financial information at all, given that “in most areas of litigation this is a matter left to the courts’ discretion”.

The Law Society’s response to the consultation reiterated its strong opposition to the reform, saying it would dilute the rule of law by discouraging backers of judicial reviews. On the details of implementation, it also agreed that applicants should not have to provide an estimate of costs.

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