Last updateTue, 24 Feb 2015 5pm

QM Legal Costs

QM Legal Costs

Paul Jones outlines the latest decision which concerns hourly rates

Of all the reforms implemented by Jackson LJ, costs budgets is the issue that continues to give judges and practitioners the biggest headaches. From the chaos created by the Court of Appeal’s decisions over relief from sanctions to recent decisions regarding the interplay between costs budgets and detailed assessment, the issue is one which continues to create problems for all concerned. The recent decision in RNB v London Borough of Newham [2017] is a classic case in point.

Paul Jones reports on the timing of conditional fee agreements and the application of QOCS

Transition between legislation is always troublesome. When one regime is replaced by another, consideration must always be given to those cases that straddle the transition from the old to the new. However, no matter how carefully these transitional rules are drafted, there are always cases that do not sit comfortably within the provisions and this truism has shown itself once again in the recent Court of Appeal judgment in Catalano v Espley-Tyas Development Group Ltd [2017], which considered the transitional provisions for qualified one-way costs shifting (QOCS).

Paul Jones reviews if a defendant can be reimbursed for payments which are now unnecessary after a change in the RTA protocol

During the Peloponnesian War between Athens and Sparta, the democratic government of Athens was overthrown in 411 BC by a coup from a group known as The Four Hundred. Nearly 2,500 years later, a group known as the ‘400 Club’ made an appearance at the Court of Appeal in relation to the somewhat less dramatic issue of fixed recoverable costs in road traffic accidents.

Paul Jones outlines the consequences of improper and unreasonable conduct when serving a bill of costs

The signing of a certificate of accuracy in a bill of costs as required by CPR 47 PD 5.21 is normally a fairly uncontroversial subject. It confirms that the bill is accurate and complies with the indemnity principle and creates a rebuttable presumption to this effect which a paying party will normally struggle to challenge. However, in some cases, the manner in which the receiving party presents their bill of costs and conducts the detailed assessment proceedings can give the paying party such an open goal in challenging the bill’s certification that the final outcome can be near inevitable. The recently released case of Jago v Whitbread Group (2016) is a textbook example of how not to certify a bill of costs or conduct detailed assessment proceedings.

After the discount rate cut, Paul Jones predicts increased legal disputes over interest on legal costs

While the legal and insurance professions come to terms with the slashing of the discount rate from 2.5% to -0.75%, the issue of interest rates on legal costs, while much less of a headline grabber, continues to be an important consideration for costs practitioners. Indeed, while the discount rate now languishes in the negative and the special account rate is not much better at 0.5%, the interest rate for legal costs judgments remains at a very healthy 8% where it has been since 1 April 1993. So how did this huge differential come to pass and what are its effects?

Paul Jones sets out the lack of consensus on proportionality since the end of ATE premiums and success fees

Two of the most fundamental reforms ushered in the Jackson reforms were abolition of recovery of success fees and ATE premiums and the new test for proportionality. In both instances, the old rules had given rise to a whole raft of case law which, with the advent of a new dawn, have had to be re-evaluated. A recent case in the Senior Court Costs Office (SCCO), Rezek-Clarke v Moorfields Eye Hospital NHS Foundation Trust [2017], provides a very stark example of how matters have changed.

Paul Jones offers insight into the recent cases that deal with Part 36 offers and fixed costs

Recent months have seen a number of decisions where the fixed costs provisions that now apply to many personal injury cases have come up against other areas of the CPR and the court has been tasked with determining how the apparent conflict is to be resolved. In the recent case of Sutherland v Khan (2016), once again it was CPR Part 36 creating a potential conflict.

Paul Jones analyses a recent case in which costs were incurred before and after the introduction of the current proportionality rules

If one could somehow isolate and distil down the last 20 years of legal costs history into one single word, that word would surely be ‘proportionality’. Initially promulgated by Lord Woolf in his 1996 ‘Access to Justice’ report as a panacea for many of the problems besetting civil justice, its implementation has fed seemingly endless arguments between lawyers as to what it actually means and how it should be applied. Charles Dickens’ maxim in Bleak House that ‘the one great principle of the English law is, to make business for itself’ has never seemed so apt. Lord Justice Jackson, in his own 2009 ‘Review of Civil Litigation’, recognised the ongoing problems and sought to solve the Sisyphean problem of legal costs with a new package of interlocking reforms to ‘control costs and promote access to justice’ and, once again, proportionality was at its heart. The jury is still out on whether the recent implementation of those reforms will ultimately deliver on either or both of their stated aims but, for now at least, the arguments over proportionality continue, as illustrated by the recent decision in King v Basildon & Thurrock University Hospitals NHS Trust [2016].

Paul Jones discusses the degree judges are bound by the approved costs budget

Costs budgets were a central pillar of Lord Justice Jackson’s civil litigation reforms with the stated intention that they would deliver predictable, proportionate costs to all. However, while one could argue that the need to prepare costs budgets at an early stage certainly focuses the mind on costs, even the most ardent supporter would be hard pressed to believe that they have been an unmitigated success as they have undoubtedly caused serious delays in the courts and have not delivered the expected rewards of more proportionate costs. Case law on the subject is relatively sparse but the recent decision of a regional costs judge in Merrix v Heart of England NHS Trust [2016] gives an excellent reminder of the role of costs budgets within the broader context of costs control and case management generally.

Paul Jones explains the interrelationship between the capped costs of provisional assessment and Part 36 offers

One of Lord Justice Jackson’s reforms that doesn’t generally create much excitement outside the legal costs profession is provisional assessment. This paper based assessment of bills up to £75,000 was intended to streamline the costs assessment process and bring more certainty and lower costs to all parties. However, the costs of matters that proceed to provisional assessment can still be worth arguing over and the recent case of Lowin v W Portsmouth & Co [2016] provides a good example of the kinds of issues that can arise.

Paul Jones discusses the contentious world of CFA assignment

Assignment of conditional fee agreements (CFAs) continues to be a thorny topic in the costs world. With the changes in the personal injury market post Jackson, more and more cases find themselves transferred between different firms of solicitors and this is often done by way of an assignment of the existing CFA from the old solicitors to the new. Unfortunately, this area is fraught with potential problems and has generated a whole raft of case law and the recent decision in Azim v Tradewise Insurance Services [2016] can now be added to that list.

Paul Jones examines a case where a successful defendant paid costs due to delayed disclosure

One of the most frequently raised issues in relation to costs is the conduct of the parties. This is not surprising given that both CPR 44.2 (court’s discretion as to costs) and CPR 44.4 (factors to be taken into account in deciding the amount of costs) expressly confirm that conduct is one of the issues the court must consider when making any costs order or assessment. Commonly, however, arguments over conduct descend into accusation and counter accusation between the parties which ultimately results in the court concluding that it was six of one and half a dozen of the other and declining to make any specific order on the issue. However, there are occasions where conduct can have a significant effect on the outcome of a costs dispute and the recent case of Chapman v Tameside Hospital NHS Trust [2016] provides a good illustration of this and a cautionary tale.

Paul Jones explores a case concerning whether a costs order applied to an appeal

It is now over three years since the bulk of the Jackson reforms were introduced on 1 April 2013 and many of the key elements are still giving rise to fundamental issues of application. The recent case of Parker v Butler [2016], for example, examines a fundamental issues regarding the application of Qualified One Way Costs Shifting (QOCS) – whether it applies to appeals or not?

Paul Jones considers the costs implications of a dispute that was settled on the day of the trial, before the trial had taken place

One of the key features of the law of legal costs is that there are, in fact, very few actual core legal principles that define this area of law. It is, in theory, incredibly simple – the loser of litigation pays the winner but only to the extent that this is reasonable and, from this, the rest of costs law flows. What this means in practice, however, is that disputes between parties over legal costs can often be distilled down to arguments over a nuanced interpretation of a particular application of these core principles and it was precisely this type of argument that faced the court in the recent case of Bruno Manuel Dos Santos Mendes v Hochtief (UK) Construction [2016].

Paul Jones evaluates the latest updates to the CPR intended to save courts time

Every practitioner loves costs budgets. The detailed forms to fill in, the fear of missing a deadline and the potentially wholly unpleasant consequences thereof, the joy of crystal ball gazing into the future, all combine to make it an area of legal costs that brings joy to all it touches. And now the rules have changed, again, with the 83rd Update to the CPR bringing some important revisions to the rules in CPR 3, the associated Practice Direction 3E and the relevant forms and guidance including a whole new precedent to get to grips with.

Paul Jones explains the importance of a recent conjoined appeal regarding Part 36 offers

Fixed costs are, once again, the current hot topic in civil litigation. Lord Justice Jackson has called for costs to be fixed in all claims up to £250,000 in value and, not entirely surprisingly, this has not been met with universal agreement from the profession or elements of the judiciary. Coincidentally, while this debate is raging in the legal press, the Court of Appeal has recently handed down judgment in the important conjoined appeals of Broadhurst v Tan; Taylor v Smith [2016] which deal with the limits of fixed costs and a very important point regarding their interplay with Part 36 offers.

Paul Jones examines the complications caused when a recent claim was passed to new solicitors

With all of the arguments surrounding conditional fee agreements (CFA) over the last 20 years, one can often forget that they are, at heart, no more than contracts and, as such, the ordinary and exciting law of contract applies. One area where this is becoming increasingly relevant and fraught is in relation to assignment of CFAs and the recent case of Alina Budana v Leeds Teaching Hospitals NHS Trust (2016) is a classic illustration of some of the issues that can arise.

Paul Jones reflects on a case where an insurer attempted to side step a claimant’s claim

It is a truism that legal costs have, over the last 20 years, witnessed a prolonged and often bitter battle between insurers and claimant personal injury solicitors. However, with the implementation of the Jackson reforms and future reforms yet to happen but heralded by the government, most objective observers would conclude that it was the insurers who have, ultimately, come out on top. However, the recent case of Edmondson Solicitors v Haven Insurance [2015] shows that there are still skirmishes going on between claimant solicitors and insurers.

Paul Jones outlines a case where the claimants’ fees were challenged due to a disagreement over complexity and proportionality

Two of the recurring themes of the Jackson reforms are proportionality and fixed costs. Proportionality becomes ever more prevalent in any assessment of costs and the ambit of fixed costs continues to grow with clinical negligence cases the next area of personal injury law in the frame. Add to this mix, the murky world of provisional assessment under CPR 47.15 and the recent case of Hobbs v Guy’s and St Thomas’ NHS Foundation Trust [2015] gives a neat precis of the current state of costs assessment in a post Jackson world.

In the second part of his article Paul Jones explains the new code system of the new bill of costs pilot scheme

In Part 1 of this article the small but important amendment to CPR 47.6(1) was considered together with the new Precedent Q which must be served with a bill of costs when a costs management order has been made in a case. As discussed, the purpose of this amendment was to assist the court to undertake a comparison between the budgeted costs and the actually incurred costs in light of the provision in CPR 3.18 that costs should not be allowed on a standard basis assessment in excess of the budgeted costs unless there is a good reason. This change is an important part of Lord Jackson’s blueprint for making costs in civil litigation more proportionate and, in particular, the streamlining of the process for assessing those costs. Another important part of that vision is to change the way the costs incurred are actually recorded by solicitors and how they are ultimately presented to a court for them to be assessed; this is what the 81st update’s new bill of costs pilot scheme (the pilot) is intended to do.

Paul Jones reports on the 81st update to Civil Procedure Rules and, in the first part of this article, the details of the new Precedent Q

It seems a lifetime since the Civil Procedure Rules (CPR) were introduced back in April 1999 following the pronouncements of Lord Woolf in his seminal report on the future of civil litigation. Since then we have seen the rise of conditional fee agreements, the death of civil legal aid, the so-called ‘costs wars’ (always somewhat hyperbolic in reality), Lord Justice Jackson’s report and the subsequent reforms ushered in by the Legal Aid Sentencing and Punishment of Offenders Act 2012 and no less than 80 updates to the CPR and attendant practice directions. And now we have the 81st update coming into force on 1 October 2015 which, while not a barnstorming update full of major changes, does herald a very significant indicator of the future for how the courts will deal with the always vexed question of legal costs in the years to come. In this, the first of two articles on this subject, we will consider the all new Precedent Q and what it all means for practitioners.

Paul Jones discusses the application of qualified one-way costs shifting in a case concerning pre-commencement funding arrangements

Qualified one-way costs shifting or QOCS, to give it its more popular acronym, is one of those areas of new costs law that everybody knew was going to cause problems. The basic premise, protect the claimant from defendant’s costs liabilities in return for an end to recoverability of success fees and ATE premiums, was a central tenet of Lord Justice Jacksons interlocking reforms and the idea seems fine in principle. The difficulty lies in the way the rules have actually been drafted and the opportunities this presents for some fairly nuanced arguments around the margins of when the QOCS rules apply and when they don’t. The recent case of Casseldine v Diocese of Llandaff Board for Social Responsibility (2015) being a classic case in point.

Paul Jones considers the arguments concerning the recoverability of success fees using retrospective agreements

Conditional fee agreements (CFAs) may very well go down in legal history as the element of civil procedure which has given rise to more hours of judicial time than any other. Despite the effective ending of recoverability of additional liabilities ushered in with the Jackson reforms, the long tail of cases where the CFA was entered into pre 1 April 2013 means that we are sure to continue to see CFA cases pop up for some considerable time. The recent case of O’Brien v Shorrock and Motor Insurers Bureau [2015] provides a good example of the kind of arguments we will all miss when these cases finally disappear.

Despite a long history, costs offers remain full of intricacies writes Paul Jones

Of all the parts of the Civil Procedure Rules, none is more critical to the modern personal injury litigator then Part 36 which, in its various incarnations, has moulded the pattern of litigation since its introduction back in 1998. As such, it has generated more than its fair share of case law on its operation and the recent case of Webb v Liverpool Womens’ NHS Foundation Trust [2015] shows that this does not look set to change any time soon.

Paul Jones gives a warning on the importance of weighing the value of a claim against the possible costs

Arguments regarding small claims fixed costs are nothing new. Whether it was the pre-CPR position of small claims being referred to arbitration or the CPR position of claims being allocated to the small claims track, it has been a fertile area of argument between paying and receiving parties. The reason being that the difference in costs payable for a small claim and the costs payable for a normal claim are substantial and it is, therefore, often worth it for the parties to argue the point, all the way to court if necessary. The recent case of Conlon v Royal and Sun Alliance plc [2015] managed to reach all the way to the Court of Appeal.

Paul Jones contemplates what the current costs trends mean for the future of London practices

Hourly rates are one of perennial areas of dispute on any costs assessment. Defendants always claim they are much too high whereas the claimant will maintain that they are entirely reasonable and justified in light of the issues in the case. The reality is that they are often assessed by the court somewhere in between which satisfies neither party, as happened in the recent case of Kelly v Hays (2015).

Paul Jones reviews the attempts that have been made to give guidance on proportionality in costs judgments

In 1667, the English poet John Milton published Paradise Lost, a poem narrating the ultimate battle between good and evil. In addition to any parallels one may choose to draw between this epic struggle and modern day personal injury litigation, it contains the familiar aphorism, ‘Easy is the descent into Hell, for it is paved with good intentions’ and one could certainly apply that sentiment to one of the central tenets of modern day litigation, proportionality.

Paul Jones sets out a court’s cost options after a case that is only a partial success

A not uncommon issue in relation to costs in personal injury claims is what costs order the court should make when a claimant succeeds on their claim but only recovers a fraction of the full value of the claim as pursued. The recent case of Sheri Everett v London Fire and Emergency Planning Authority (2014) considers this important issue.

Paul Jones examines an emerging area of dispute in the application of QOCS

One of the most significant reforms ushered in by the Jackson report was Qualified One Way Costs Shifting (QOCS). This quid pro quo for the abolition of recoverability of ATE premiums provides personal injury claimants with limited protection from the risk of having to face the costs of a successful defendant and, to date, the issue has given rise to very few reported cases. The recent case of Michael Landau v Big Bus Co and Pawel Zeital [2014] is therefore something of a rarity that clarifies a narrow but important point regarding QOCS in appeals.

Paul Jones highlights an example of an application for relief from sanctions in detailed assessment proceedings

Relief from sanctions has been the dominant theme in the post Jackson costs world with the Court of Appeal’s judgments and guidance being pored over by commentators and practitioners alike. The recent case of Long v Value Properties and Ocean Trade Ltd [2014] provided a helpful practical example of how the land currently lies in this contentious area when it comes to detailed assessment proceedings.

The first Court of Appeal decision looking at the QOCS reforms has been handed down, Paul Jones reports

One of the biggest costs reforms of 1 April 2013 was the introduction of qualified one way costs shifting (QOCS) whereby a successful defendant to a personal injury claim would be unable to recover their costs from an unsuccessful claimant. For such a major reform, it was inevitable that the Court of Appeal would be tasked with interpreting the rules and the first such decision, but almost certainly not the last, has been handed down in Wagenaar v Weekend Travel Ltd and Serradj [2014].

Paul Jones considers the risk factors the court will take into account

With the growth of fixed success fees and, indeed, the new rules regarding non-recoverability of success fees at all, one does not now often come across a decision which deals with the reasonableness of a success fee from first principles. The recent case of Bright v Motor Insurers Bureau [2014], however, did consider this issue and provides a helpful reminder of how the court considers risk as it relates to the reasonableness of a success fee.

Paul Jones highlights a costs case that shows the changing role of modern information technology in law

Modern technology and the law do not often sit comfortably beside each other. Traditionally, the law is often perceived as an old-fashioned profession with its bundles of papers bound up in pink ribbon, barristers in their fancy court dress and judges sitting up on high dispensing justice with the help of a gavel in a scene reminiscent of Jarndyce v Jaryndyce in Dickens’ Bleak House. However, modern legal practice has evolved and, increasingly, information technology plays a substantial part in litigation. The recent case of Brett v Colchester Hospital University NHS Foundation Trust [2014] illustrates some of the problems that this can create.

Paul Jones highlights a recent case concerning costs incurred during the transitional provisions

The 1 April 2013 brought a new test for considering whether costs were proportionate whereby costs that do not bear a reasonable relationship to the value of the claim and other matters will not be recoverable on the standard basis even where those costs were necessarily incurred (CPR 44.3). However, CPR 44.3(7) confirms that this new test will only apply to costs incurred after 1 April and for costs incurred prior to that date, the old rules will continue to apply. As this transitional provision will continue to apply to large numbers of cases for the foreseeable future, the recent case of Finglands Coaches Ltd v O’Hare [2014] dealing with the old rules relating to proportionality is still an important decision.

Paul Jones reviews five areas still causing confusion

We are now over a year on from the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) which brought a whole raft of reforms to the area of legal costs. These reforms were very high profile and have filled many a column inch in the legal press but they are still causing substantial problems for many practitioners. Costs budgets have taken up much of the front page but a number of other areas have caused just as much confusion, primarily due to their inherently complex nature and the manner of their implementation, often spread across LASPO itself, the amended CPR (with a whole new numbering) and various statutory instruments, which does not make it easy for practitioners to tread a path through the detail, particularly when one considers the various transitional provisions and exceptions. What follows, therefore, is a brief consideration of five issues which, to a greater or lesser extent, appear to be causing confusion.

Paul Jones advises when it is appropriate to issue costs-only proceedings

Any practitioner who deals with costs will almost certainly have either issued costs-only proceedings or been on the receiving end of the same. It is a very common mechanism whereby costs in non-litigated cases can be assessed by the court where agreement between the parties is not possible. However, the recent case of Knowles v Goldborn [2014] offers a cautionary tale about when it is appropriate to issue costs-only proceedings and when it is not.

Paul Jones examines what the position is when a client loses capacity part way through proceedings

In many cases where a claimant is seriously injured, there may be issues over the claimant’s mental capacity and how this may affect any claim made on their behalf. The recent case of Blankley v Central Manchester and Manchester Children’s University Hospitals NHS Trust [2014] considers the important issue of what happens to the claimant’s retainer with their solicitors when capacity is lost part way through the case.

Paul Jones examines the shift in costs recovery and potential problems

The Jackson reforms have seen a partial shift in responsibility for solicitor’s fees from culpable defendants to claimants. Success fees are now payable by successful claimants rather than unsuccessful defendants and, as damages are reduced as a result, it is to be expected that there may be an increase in challenges to solicitor’s costs from their own clients. A recent decision regarding the powers of the Legal Ombudsman in disputes of this nature gives a useful insight into this growing area.

Paul Jones considers the need to take care drafting consent orders but highlights the courts’ reluctance to allow parties to side-step the rules

The interface between fixed costs and reasonable costs has always been fraught with issues. The difference in the level of costs that are recoverable on the standard basis as against the level recoverable under fixed costs is such that parties will often raise arguments to push a case into one camp or the other. The recent case of Davies, Ollin and Ollin v Greenway (2013) illustrates the issue in fairly clear terms.

Paul Jones investigates a new battle ground – breach of contract

The law surrounding conditional fee agreements (CFAs) has created all manner of problems for practitioners and judges in the personal injury sphere. Challenges to the validity of agreements lead to a wholesale costs war between claimants and defendants, which was only abated following the revocation of the Conditional Fee Agreements Regulations 2000 in November 2005. Arguments over the reasonableness of success fees was abated by the fixing of success fees in various types of personal injury cases. Finally, the whole basis of recoverability of the costs of CFA was swept away by the Legal Aid Sentencing and Punishment of Offenders Act 2012 and it was hoped that the war over CFA would finally be over. Not so. The recent case of Brookes v DC Leisure Management Ltd [2013] shows that there is still some life left in arguments over CFA.

Paul Jones reviews the approach of the court to a qualified one-way costs shifting agreement

Qualified one-way costs shifting (QOCS) was one of the key reforms of the Jackson Report and it was seen as a necessary quid pro quo for the abolition of the recoverability of after-the-event (ATE) insurance premiums. The recent case of Vava v Anglo American Africa Ltd [2013], while based on the old law, gives an interesting perspective on the whole issue of one-way costs shifting, particularly in large personal injury claims.

Paul Jones considers recoverability of disbursements in fixed feed cases

With the growth in the application of fixed costs to personal injury claims, one area that remains open for arguments between the parties is the reasonableness or otherwise of disbursements and, in particular, expert reports. The recoverability of disbursements remains subject to the requirements of reasonableness and proportionality, and the recent case of Murray v Smith [2013] examined this very issue.

Paul Jones reviews a recent case that considers recoverability of fees

With the growth in personal injury claims over the last 15 years, there has been a commensurate growth in the commercial opportunities for those who service such claims in one way or another. In addition to solicitors and barristers, claims management companies, ATE insurers and a wide range of agencies have also joined the personal injury industry and while the future may be somewhat less plentiful, they have been near ubiquitous in the post-CPR era. Inevitably, these developments have lead to disputes surrounding the costs associated with these parties and the recent case of Charman v John Reilly (Civil Engineering) Ltd [2013] brings an old favourite to the fore once again – medical agency fees.

Paul Jones examines a recent case that illustrates how courts may approach new funding arrangements

In the post-Jackson epoch, the litigation funding options will take some time to settle down. Gone will be the ubiquitous Conditional Fee Agreement (CFA) where all the costs (including success fee and ATE premium) were payable by the losing party and in will come a variety of funding methods intended to fill that gap, from CFA with success fees capped at 25% of the damages to damages based agreements once the regulations for the same are finally sorted out. As claimants in personal injury claims and their solicitors wrestle with the new environment, the recent case of Jones v The Secretary of State for Energy and Coal Products Ltd [2013] may give an interesting glimpse into what the future may hold.

Paul Jones reviews the transitional arrangements relating to detailed assessment of costs

The 1 April reforms have heralded a great many changes to the rules dealing with legal costs; some major and some less so. One change that appears relatively minor at first glance is in relation to the costs of detailed assessment and costs offers, formerly contained in CPR 47.18 and 47.19, but now, confusingly, moved to CPR 47.20. The true position, however, is very far from a simple change of numbering.

Paul Jones looks at the pros and cons

The main provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into force on 1 April 2013 and promise to herald a major change in the way personal injury claims are funded in the future. One element of the new environment is the option to use damages-based agreements (DBA) in personal injury claims for the first time and practitioners need to be aware of this new funding animal before advising their clients of the merits or otherwise of this strange beast.

Paul Jones examines the cost implications of multiple defendants

Claims involving multiple parties always have the potential for difficulties, both in relation to damages and costs. In particular, where there are multiple defendants and the claim against them fails, there is often the vexed question of who is to pay the costs of those defendants, particularly where there is a lack of funds on the part of the claimant. The recent Court of Appeal case of Chung v Funafloat Ltd [2013] considered this very issue.

Paul Jones investigates the latest challenge to the provisions

If one considers the entirety of the Civil Procedure Rules (CPR), it would be difficult to counter the argument that CPR Part 36 has created more arguments, case law and general difficulties for litigants, commentators and the courts than any other, possibly more than the rest of the CPR put together. The principal behind Part 36 was very simple: to encourage parties to settle claims rather than contest them and, by judicious use of costs penalties, parties were to be gently encouraged to embrace the overriding objective and settle as many cases as possible. On one level it is has been a great success, as evidenced by the widespread use of Part 36 offers, by both claimants and defendants, in nearly all forms of litigation (and pre-litigation) but this ubiquity has inevitably lead to a whole saga of case law examining the minutiae of the rules and their application. The recent case of Jolly v Harsco Infrastructure Services Ltd [2012] is just one example out of many.

Paul Jones looks at the latest decision of Loizou v Gordon

Fixed costs: the concept seems so simple. At the conclusion of a case, the costs payable are calculated by reference to clearly defined rules and not left to such vague terms such as ‘reasonable’ or ‘proportionate’ costs. However, it doesn’t always work out that way and, as we await the death of recoverable success fees next April, the case law still continues to flow.

Robert Connelly considers the long and winding road to Jackson

As April 2013 looms ever nearer, personal injury practitioners will increasingly be looking for clues as to how the Jackson reforms will impact upon them/their clients on an operational basis.

Page 1 of 2