11 July 2022

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News in brief: Pro bono costs orders extended, IPEC costs cap to rise, benefits of boutique firms, and more

We round up smaller pieces of news that Costs Lawyers need to know, including the CLSB seeking members for an advisory panel

Intellectual property: Costs caps to rise

Pro bono costs orders extended to tribunals

UK tribunals can now make pro bono costs orders after the new section 194A of the Legal Services Act 2007 came into force on 28 June, mirroring the existing section 194 for the civil courts.

Pro bono costs are like ordinary legal costs and apply when the pro bono representation is for all or part of the case and can sit alongside paid representation.

Pro bono costs are now available in proceedings before the First-tier Tribunal, the Upper Tribunal, the employment tribunal, the Employment Appeal Tribunal and the Competition Appeal Tribunal.

The key condition is that the tribunal would have had the power to award ordinary costs, had the representation been provided on a paid basis, such as for unreasonable conduct.

According to the Access to Justice Foundation – which receives the costs paid under such orders – the practice in the civil courts has been to treat pro bono costs as close as possible to ordinary costs. “Accordingly, if ordinary costs would have been awarded in a particular case, the expectation is that the equivalent pro bono costs are awarded.”

This is usually done on a summary assessment, assisted by the pro bono lawyer filing and serving a written statement showing how much they would have charged, based on their normal hourly rate for fee-paying work (excluding VAT). After costs are awarded, the pro bono lawyer should inform the foundation (costs@atjf.org.uk), which distributes them to charities.

“The introduction of pro bono costs also helps level the playing field, by ensuring that there are equal adverse costs risks for all parties, even when facing a pro bono assisted party. This can help encourage reasonable litigation conduct and settlement.”

For more information, go to www.atjf.org.uk.

IPEC costs cap to rise

The overall and stage costs caps in the Intellectual Property Enterprise Court are to rise to £60,000  and £30,000 respectively, increases of 20% and 17.5%.

Newly published minutes of last month’s meeting of the Civil Procedure Rule Committee said the stage cap has not been increased since 2013 and the overall cap has remained unchanged since first fixed in 2010. The rises will happen in the October CPR update.

High Court: Using boutique law firm can reduce overall costs

Using a boutique law firm – even though it is likely to lead to more partner time being billed – can lead to lower costs overall, a Commercial Court judge has said.

In Hotel Portfolio II UK Ltd & Anor v Ruhan & Anor [2022] EWHC 1695 (Comm), Mr Justice Foxton was considering what payment on account of costs to order, having found in favour of the claimants earlier in the year. They instructed Spring Law, a specialist litigation practice in London.

The defendants suggested that the percentage of partner time billed by Spring, 45%, was too high. Foxton J said: “It is necessary to have regard to the use of a small, boutique, firm of solicitors by HPII, with Mr Russell as an ever-present in a lean team. That model can sometimes involve a higher proportion of partner time but a lower overall level of costs than using a medium or large city firm. Viewed in this context, I am not persuaded the 45% figure is too high.”

He noted too that it was “considerably less than the 69% of partner time” incurred by the second defendant, who also instructed a “small, boutique, firm of solicitors” – Richard Slade & Co.

CLSB seeks Costs Lawyers for advisory panel

The Costs Lawyer Standards Board (CLSB) is establishing what it calls “an informal advisory panel”, comprised of Costs Lawyers, clients and experts, to provide feedback on a range of issues which do not lend themselves to formal consultation.

Feedback will be sought by email, with a clear deadline, and no obligation to respond if the member is busy. The CLSB said questions could be anything from “Which font do you find easier to read?” to “What are the biggest issues facing your business right now?”, and everything in between.

If you are interested in joining the panel, please email Jacqui Connelly at enquiries@clsb.info.

New address for CLSB

The CLSB’s new postal address is PO Box 4336, Manchester, M61 0BW. The regulator said firms may have to update their complaints procedures, as these must give contact details for the CLSB.