The Association of Costs Lawyers (ACL) has been granted leave to intervene in the case of Coventry v Lawrence. The case will consider whether the recoverability of additional liabilities (ie success fees and ATE insurance premiums) under the Access to Justice Act 1999 infringed Article 6 of the European Convention on Human Rights and/or Article 1 of the First Protocol to the Convention.

Chairman of the ACL, Sue Nash, said…

“We see our role very much as not advocating for an outcome but just trying to make sure the court is fully appraised of how it all works in practice… ACL members have been at the forefront of the assessment of and advice and arguments in relation to recoverability and we want to give the Supreme Court the benefit of our practical experience … We believe the arguments in favour of incompatibility – including that it created an imbalance solely to the benefit of claimants – may be based on an incorrect or incomplete view of how the system worked before 1 April 2013 and are also concerned about the impact an adverse ruling by the court would have on the many pre-Jackson cases which are still being litigated“.

The ACL is represented by Roger Mallalieu of 4 New Square.

The case is before the Supreme Court on 9, 10 and 12 February.

Costs Lawyers have earned their long awaited right to litigate, says Sue Nash…

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“It took many years for the Association of Law Costs Draftsmen, as it then was, to make the case for independent rights of practice for its members and have it accepted by government and Parliament. This has given birth to a new breed of highly professional and accountable costs lawyers who are regulated as vigorously as any other lawyer.”

See New Law Journal article

Lord Neuberger has unveiled the new test to be applied in relation to costs which are challenged as being disproprtionate. The new test – to be contained in CPR 44.4(5) – will come into force in April 2013 and will read as follows:

Costs incurred are proportionate if they bear a reasonable relationship to:

(a) the sums in issue in the proceedings; 
(b) the value of any non-monetary relief in issue in the proceedings; 
(c) the complexity of the litigation; 
(d) any additional work generated by the conduct of the paying party; and 
(e) any wider factors involved in the proceedings, such as reputation or public importance. 

The Master of the Rolls went on to say….

“Obviously, the amount of money involved will normally be a very significant factor, but it will not be determinitive, and there will be issues such as whether one looks at the sum reasonably claimed or the sum recovered. Difficult questions may arise when one party claims that the point at issue is very important to him or her even though, objectively speaking, it is of little significance. Objective perspectives may well be more important than subjective ones in this area, but that remains to be assessed. And is the approach to proportionality to be the same for defendants’ costs as it is for those of claimants? Such issues will have to be worked out, but the working out will involve judges exercising that quality which they are pre-eminently expected to have, namely judgement” 

Read Lord Neuberger’s full speech here.

The Offers to Settle in Civil Proceedings Order 2013 has been laid before parliament and comes into force on 1 April 2013.

The Order introduces a new Part 36 sanction which will apply in circumstances where the court gives judgment to a Claimant which is “at least as advantageous” as their own offer, enabling the court to award an additional amount in respect of either costs or damages, to be calculated as follows:

If the claim includes both a claim for an amount of money and a non-monetary claim, a percentage of damages…

1. Up to £500,000 – 10% of the amount awarded.

2. Between £500,000 and £1,000,000 – 10% of the first £500,000 and 5% of the amount awarded above that figure.

3. Above £1,000,000 – 7.5% of the first £1,000,000 and 0.001% of the amount awarded above that figure.

If the claim for non-monetary relief only, a percentage of costs…

1. Up to £500,000 – 10% of the costs ordered to be paid.

2. Between £500,000 and £1,000,000 – 10% of the first £500,000 and 5% of any costs ordered to be paid above that figure.

Sue Nash appointed new Chairman by the Association of Costs Lawyers 

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The Association of Costs Lawyers has elected Sue Nash as its new chairman to succeed Murray Heining at the expiry of his term of office on 19th April 2014. Read More.