Countdown to J Day

Reports out today suggest that J Day, or Jackson Implementation Day, is to be 1 October 2012.

Matters to be decided is the appropriate level of fixed costs for fast track matters, not exclusively limited to Personal Injury, but to include Insolvency. The fixing of costs will eliminate the arguments over the costs of costs and so the court system will be breathe a sigh of relief. Well a temporary one. MPs are warning the Judiciary that there will be a significant increase in Litigants In Person. LIPs are set to invade family courts following the reductions in availability of legal aid. Judges will no doubt be screaming how they long for the return of detailed assessment hearings.

Solicitors Code of Conduct, Part 2

Following my earlier blog, and noting that new regulations were coming in to effect from 6 October 2011 as per the SRA website at the date of writing this blog, I thought it prudent to have a look.  The draft Outcome Focused Regulations for client care are detailed

below in their wonderful flowery language.

Outcomes

You must achieve these outcomes:

O(1.1) you treat your clients fairly;

O(1.2) you provide services to your clients in a manner which protects their interests in their matter, subject to the proper administration of justice;

O(1.3) when deciding whether to act, or terminate your instructions, you comply with the law and the Code;

O(1.4) you have the resources, skills and procedures to carry out your clients' instructions;

O(1.5) the service you provide to clients is competent, delivered in a timely manner and takes account of your clients' needs and circumstances;

O(1.6) you only enter into fee agreements with your clients that are legal, and which you consider are suitable for the client's needs and take account of the client's best interests;

O(1.7) you inform clients whether and how the services you provide are regulated and how this affects the protections available to the client;

O(1.8) clients have the benefit of your compulsory professional indemnity insurance and you do not exclude or attempt to exclude liability below the minimum level of cover required by the SRA Indemnity Insurance Rules;

O(1.9) clients are informed in writing at the outset of their matter of their right to complain and how complaints can be made;

O(1.10) clients are informed in writing, both at the time of engagement and at the conclusion of your complaints procedure, of their right to complain to the Legal Ombudsman, the time frame for doing so and full details of how to contact the Legal Ombudsman;

O(1.11) clients' complaints are dealt with promptly, fairly, openly and effectively;

O(1.12) clients are in a position to make informed decisions about the services they need, how their matter will be handled and the options available to them;

O(1.13) clients receive the best possible information, both at the time of engagement and when appropriate as their matter progresses, about the likely overall cost of their matter;

O(1.14) clients are informed of their right to challenge or complain about your bill and the circumstances in which they may be liable to pay interest on an unpaid bill;

O(1.15) you properly account to clients for any financial benefit you receive as a result of your instructions;

O(1.16) you inform clients if you discover any act or omission which could give rise to a claim by them against you.

Indicative behaviours

Acting in the following way(s) may tend to show that you have achieved these outcomes and therefore complied with the Principles:

Dealing with the client's matter

IB(1.1) agreeing an appropriate level of service with your client, for example the type and frequency of communications;

IB(1.2) explaining your responsibilities and those of the client;

IB(1.3) ensuring that the client is told, in writing, the name and status of the person(s) dealing with the matter and the name and status of the person responsible for its overall supervision;

IB(1.4) explaining any arrangements, such as fee sharing or referral arrangements, which are relevant to the client's instructions;

IB(1.5) explaining any limitations or conditions on what you can do for the client, for example, because of the way the client's matter is funded;

IB(1.6) in taking instructions and during the course of the retainer, having proper regard to your client's mental capacity or other vulnerability, such as incapacity or duress;

IB(1.7) considering whether you should decline to act or cease to act because you cannot act in the client's best interests;

IB(1.8) if you seek to limit your liability to your client to a level above the minimum required by the SRA Indemnity Insurance Rules, ensuring that this limitation is in writing and is brought to the client's attention;

IB(1.9) refusing to act where your client proposes to make a gift of significant value to you or a member of your family, or a member of your firm or their family, unless the client takes independent legal advice;

IB(1.10) if you have to cease acting for a client, explaining to the client their possible options for pursuing their matter;

IB(1.11) you inform clients if they are not entitled to the protections of the SRA Compensation Fund;

IB(1.12) considering whether a conflict of interests has arisen or whether the client should be advised to obtain independent advice where the client notifies you of their intention to make a claim or if you discover an act or omission which might give rise to a claim;

Fee arrangements with your client

IB(1.13) discussing whether the potential outcomes of the client's matter are likely to justify the expense or risk involved, including any risk of having to pay someone else's legal fees;

IB(1.14) clearly explaining your fees and if and when they are likely to change;

IB(1.15) warning about any other payments for which the client may be responsible;

IB(1.16) discussing how the client will pay, including whether public funding may be available, whether the client has insurance that might cover the fees, and whether the fees may be paid by someone else such as a trade union;

IB(1.17) where you are acting for a client under a fee arrangement governed by statute, such as a conditional fee agreement, giving the client all relevant information relating to that arrangement;

IB(1.18) where you are acting for a publicly funded client, explaining how their publicly funded status affects the costs;

IB(1.19) providing the information in a clear and accessible form which is appropriate to the needs and circumstances of the client;

IB(1.20) where you receive a financial benefit as a result of acting for a client, either:

�� paying it to the client;

�� offsetting it against your fees; or

�� keeping it only where you can justify keeping it, you have told the client the amount of

the benefit (or an approximation if you do not know the exact amount) and the client

has agreed that you can keep it;

IB(1.21) ensuring that disbursements included in your bill reflect the actual amount spent or to be spent on behalf of the client;”

So essentially, the rules are the same, just broken down into ‘Outcomes’ and ‘Indicative Behaviours’.  As always, we strive to make sure you, our clients, do not fall foul of the above and are always on hand to help. See our main website for further details of our costs drafting services.

How much does the government's decisions cost?

Every time the government makes a change in policy, there is a cost consequence. At present, the costs consequences of the Jackson reforms are unknown but one would estimate that they will be significant. However, the costs consequences of other decisions are known.

We were instructed to act for one of the local authorities in a Judicial Review of a decision by the Secretary of State for Education, when he decided to cancel the buildings for schools program on the grounds that it was believed that the costs of such a scheme were inflated. The costs consequences of one decision, no matter how reasonable the decision was, resulted in significant costs being paid both by the local authorities and the relevant bodies responsible for the building programs to their legal representatives, such bill of costs ultimately being passed on to the government. The costs consequences collectively had several figures.

It is clear that it is necessary to account and justify every decision made both by the government, and those challenging the decisions such are the costs consequences. It is therefore important to work with a costs conscious firm of experts such as Carlisle Legal Costing, when conducting litigation.

Legal Aid, Sentencing & Punishment of Offenders Bill

Following sending my MP one of the many generic letters doing the rounds in objection to the above bill, I received a response stating.

"In recent years the system has become unbalanced, fuelled to a significant extent by the way that 'no win, no fee' conditional fee agreements now work. They have played an important role in extending access to justice but they also enable claims to be pursued with no real risk to claimants and the threat of excessive costs to defendants....Following careful consideration...the Government has decided to reform no win no fee arrangements to stop the perverse situation in which fear of excess costs sometimes forces defendants to settle, even when they know they are right."

Having worked in the coal face of costs for many years, I am yet to see any evidence that Defendant Insurers make economic decisions to settle purely because of the risk of excessive costs due to the additional liabilities. The significant costs in Campbell v MGN prove that.  If anything, with there being After the Event Insurance, they are better off under the present regime - in the future, they will be forced to litigate to trial and due to one way costs shifting, will not be able to recover a penny.

Fit to practice

The joke apparently goes that 99% of solicitors give the 1% a bad name. 

This certainly does not apply to our clients given the in house training we have undertaken and lengths we go to to keep our clients up to date.  Our Law Costs Drafting practice does not just concern ourselves with drafting bills of costs or negotiating, we offer a complete one stop shop for setting up funding, conducting cases profitably, obtaining insurance and attending the detailed assessment hearing - all without a hard-sell.

In keeping with our approach to helping keep the modern firm fit to practice, we are running a campaign with Lifestyle Fitness and offering one year's free gym membership to one of their exciting new centres opening up across the country. Fit in mind, fit in body, fit to practice. Brand new state of the art gyms opening in Chesterfield, Darlington, Stoke, Carlisle & Darlington with many more planned.

To claim the one year's membership with Lifestyle Fitness, all you have to do is send us 5 individual cases per fee-earner.

Bitter aftertaste | Features | The Lawyer

Bitter aftertaste | Features | The Lawyer

Yao Essaie Motto & Ors v Trafigura Ltd & Anor - Part 2

In a follow up to the substantial decision by Master Hurst, a further judgement has been given relating to the recoverability of interest. Given the fact that interest was potentially accruing at £800,000 per annum, this was a most important point following on from Gray v Toner.

Master Hurst ruled that in a CFA funded case, interest on costs should not begin to run until costs have been assessed, rather than the earlier date when judgment is given. His decision was based on different reasons to that of HHJ Stewart in Gray v Toner.

Both parties have indicated that the decision is likely to be appealed.

The question that parties need to ask is does your CFA permit recovery of interest in light of the above judgement. Contact us on 01228 63 55 45 to obtain impartial advice on the point. See our website for further information on our services