“It is true that the Rehabilitation Code requires consideration by both sides of whether rehabilitation would assist and that it is intended that both sides will collaborate in relation to consideration of rehabilitation needs. However, that does not in my judgment bear an interpretation that having lawyers attend rehabilitation meetings amounts to litigation costs. It may arguably form part of damages but that is not a matter for me.”
In our article How Relevant Is The SCCO Guide To Hourly Rates we looked at three cases in which two High Court Judges and the Senior Costs Judge independently commented on the passage of time since the guideline rates were last updated in 2010 and, consequentially, their relevance on detailed and summary assessments being conducted in 2020.
The Civil Procedure (Amendment No. 3) Rules 2020 and the 122nd Practice Direction Update come into effect on 1 October 2020… the most notable change is the introduction of the new formal procedure for varying your costs budget and imposition of a mandatory duty on parties to do so where there is a significant development in the litigation.
The SCCO Guide To Hourly Rates was last updated in 2010. In 2014 it was reviewed by the then Master of the Rolls, Lord Dyson MR, but left unchanged due to a lack of reliable evidence.
But how relevant is the guide five years on?
Lord Justice Jackson has released his Review of Civil Litigation Costs: Supplemental Report – Fixed Recoverable Costs.
Jackson LJ has delivered his Keynote Address on the Review of Fixed Recoverable Costs.
Costs Judge, Master Simons, has slashed a Bill of Costs from £72,320 to £24,600 in a clinical negligence case which settled for £3,250. The reductions were made at provisional assessment and, aside from some minor increases, were maintained at an oral hearing.
For a third time, the NHS Litigation Authority (NHSLA) has defeated a claim for additional legal costs liabilities brought by Irwin Mitchell.
All three cases involved clinical negligence disputes in which Irwin Mitchell advised their clients to switch their claim’s funding from legal aid to a conditional fee arrangement (CFA), supported by after the event (ATE) insurance. In each case, this funding transfer took place shortly before LASPO came into force on 1 April 2013, which rendered such expenses unrecoverable.
In this latest case, Yesil v Doncaster NHS Trust, Regional Costs Judge Besford agreed with the NHSLA that it was unreasonable for the claimant to switch their funding in this way. Consequently, DJ Besford said that the additional costs claimed by the claimant as a result of the switch should be disallowed. Combined, the disallowed costs amounted to more than £105,000 – a success fee of £55,522.56, and an ATE premium of £50,681.78. The total costs claimed in the case were £350,856.
In all three cases in which the NHSLA has successfully defeated Irwin Mitchell’s additional costs liability claims, Surrey v Barnet & Chase Farm Hospitals NHS Trust [2015] EWHC B16 (Costs) (10 August 2015), AH v Lewisham Hospital NHS Trust [2016] EWHC B3 (Costs) (12 January 2016), and now Yesil v Doncaster NHS Trust, the presiding costs judge has criticised the firm regarding the advice it gave to the client prior to their funding switch decision.
In Yesil v Doncaster NHS Trust, Irwin Mitchell justified its advice to its client by arguing that the switch guaranteed the claimant’s case would be funded. However, what the firm failed to advise its client was that, by switching to a CFA-based funding arrangement, the client was also abandoning their right to obtain a 10 per cent uplift in damages if successful – which would have been worth around £28,000.
This advice omission prompted DJ Besford to question the adequacy of the advice given to the claimant by Irwin Mitchell. He went on: “Irwin Mitchell would appear to have been not so much ‘leaning’ one way, as giving advice tailored to a decision they had already made.” The need for transparent advice was particularly important in this type of case, he added, “where one of two or more options available to a client is more financially beneficial to the solicitor”. “Further,” he stated, Irwin Mitchell had “produced no evidence either by way of file notes, copy letters or even a witness statement from the client as to the advice tendered. In my judgment, the decision to switch was not self-evident or transparent.”