LexisNexis Dispute Resolution - LexisNexis Blogs

LexisNexis Dispute Resolution A LexisNexis mini-mag focusing on costs.

Autumn 2015

Future changes to the costs management regime—as at 5 August 2015 Janna Purdie Lexis®PSL Dispute Resolution CPR changes—October 2015 Janna Purdie ® Lexis PSL Dispute Resolution Coventry v Lawrence: A very damp squib? Nicholas Bacon QC and George Macdonald 4 New Square The cost of Coventry v Lawrence David Bowden New Bill of Costs Consultation New Bill of Costs pilot scheme New Bill of Costs and J-Codes Janna Purdie Lexis®PSL Dispute Resolution How is interest on a settlement sum dealt with where a Part 36 offer is accepted after the Relevant Period has ended? Ruth Pratt Lexis®PSL Dispute Resolution New Law Journal: What a pain Jon Lord Council member of the Association of Costs Lawyers New Law Journal: Rising pressure Nichola Evans Browne Jacobson Pre-action costs—recovery Janna Purdie ® Lexis PSL Dispute Resolution 1

From the Editor Welcome to our third edition of the LexisNexis Dispute Resolution Costs magazine. Designed to highlight recent and future changes in the costs arena, this magazine will provide you with a taste of some of the products and services that make up LexisNexis Dispute Resolution. The majority of the costs reforms advocated by Lord Justice Jackson in his review came into force on 1 April 2013 and have had some time to bed in. However, as costs lawyers, we know that the landscape is constantly changing and this can be seen in the imminent introduction of the new Bill of Costs and the use of J codes through the pilot scheme in the SCCO which commences on Thursday 1 October. We consider this and other topical issues in this edition. We have an experienced team of in-house lawyers who work closely with leaders in various fields of Dispute Resolution, both external authors and editorial board members. Together we provide you with the most up to date information for example in guidance notes, news analysis and blogs to ensure you can keep on top of the continual changes we encounter in the Dispute Resolution field. My email address is below, please let me know what you think and whether there are any areas you would like me to cover in the next edition. Janna Purdie Solicitor [email protected] Twitter: @LexisUK_DR Blog: http://blogs.lexisnexis.co.uk/DR

Editorial Editor: Janna Purdie Production Editor: Rachel Buchanan Design: Creative Solutions Offices: Lexis House, 30 Farringdon Street, London, EC4A 4HH Tel: 020 7400 2500 Reproduction, copying or extracting by any means of the whole or part of this publication must not be undertaken without the written permission of the publishers. This publication is intended to be a general guide and cannot be a substitute for professional advice. Neither the authors nor the publisher accept any responsibility for loss occasioned to any person acting or refraining from acting as a result of material contained in this publication.

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Coventry v Lawrence: A very damp squib?

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Nicholas Bacon QC and George Macdonald, 4 New Square

The long-awaited decision in Coventry v Lawrence [2015] UKSC 50 was handed down on 22 July 2015. For those who are not familiar with the saga, the Supreme Court was considering whether or not the pre-Jackson regime of inter-party recovery of success fees and ATE premiums was lawful. In their latest guest post for the LexisNexis DR blog, Nicholas Bacon QC and George McDonald of 4 New Square consider the case and give their comments. Introduction In summary, the Claimants/Appellants brought a nuisance action against the nearby Defendants/Respondents (who run a speedway). The Appellants succeeded in the High Court and in the Supreme Court ([2014] UKSC 13, on a successful appeal from [2012] EWCA Civ 26) and recovered £20,000 in damages. The Appellants’ costs comprised:

(i) base costs up to the judge’s order of £307,642;

(ii) success fee of £215,007; and

(iii) an ATE premium in the region of £305,000.

The Respondents argued that recovery of items (ii) and (iii), the additional liabilities, would infringe their rights under Article 6 of the European Convention on Human Rights (“Article 6”) and/or Article 1 of the First Protocol to the Convention (“A1P1”). The Supreme Court heard argument from the parties and a number of interveners. As can be imagined, the case generated considerable interest both in respect of thousands if not millions of historic cases and for those claims where additional liabilities are still recoverable inter-partes.

The outcome? Claimants/receiving parties can heave a huge sigh of relief. The Supreme Court rejected the Respondents’ challenge and held that the regime was compatible with Article 6 and the A1P1. Put simply, nothing has changed: the industry’s excitement has been extinguished. That said, this may not be the end of the story. Two of their Lordships, Lord Clarke and Lady Hale, dissented. They held that the regime did unlawfully infringe Article 6 and A1P1. Thus defendants/paying parties have a glimmer of hope if the challenge is pursued to the ECtHR.

The Decision The Supreme Court gave three judgments: the leading judgment of Lord Neuberger and Lord Dyson (with whom Lord Sumption and Lord Carnworth agreed), the judgment of Lord Mance (with whom Lord Carnworth agreed) and the dissenting judgment of Lord Clarke (with whom Lady Hale agreed).

The leading judgment Lord Neuberger and Lord Dyson conducted a detailed review of the history of the relevant legislation. They identified 4 flaws with the costs regime, as highlighted by Sir Rupert Jackson in his Review of Civil Litigation, summarised by the ECtHR in MGN v United Kingdom and mirrored by Lord Neuberger’s original reasons for airing the dispute.

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Those 4 flaws were: 1. The lack of focus of the regime and the lack of any qualifying requirements for appellants who would be allowed to enter into a CFA; 2. The absence of any incentive for appellants to control the incurring of legal costs and the fact that judges assessed costs only at the end of the case when it was too late to control costs that had been spent; 3. The “blackmail” or “chilling” effect of the regime which drove parties to settle early despite good prospects of a defence; and 4. The fact that the regime gave the opportunity to “cherry-pick” winning cases to conduct on CFAs. The flaws led the ECtHR to conclude in MGN that the regime was incompatible with paying parties’ Article 10 rights in defamation cases. Lord Neuberger and Lord Dyson held that the MGN decision did not require them to hold that the regime was incompatible with paying parties’ Article 6/A1P1 rights: the balancing of Article 6 rights was a wholly different matter to the balancing of Article 10 rights. The latter is always given particular weight by the ECtHR. Lord Neuberger and Lord Dyson then decided that, whilst flaws, flaws 1, 2 and 4 could not adversely affect paying parties’ Article 6 or A1P1 rights. Their Lordships therefore concentrated on flaw 3. After considering the objection to the regime in more detail, their Lordships held that regime was compatible with Article 6 or A1P1, as (see [83-84]): “…it is necessary to concentrate on the scheme as a whole. The scheme as a whole was a rational and coherent scheme for providing access to justice to those to whom it would probably otherwise have been denied. It was subject to certain safeguards. The government was entitled to a considerable area of discretionary judgment in choosing the scheme that it considered would strike the right balance between the interests of appellants and respondents whilst at the same time securing access to justice to those who would previously have qualified for legal aid. It had to find a solution to the problem created by the withdrawal of legal aid. The government has now produced three different schemes. Each was produced after wide consultation. Each has generated considerable criticism. As already indicated, once civil legal aid was constrained to the extent that it was in 1999, it became impossible to come up with a solution which would meet with universal approval. This is relevant to the question whether the 1999 Act struck a fair balance between the interests of different litigants”.

Lord Neuberger and Lord Dyson went on to hold that it was neither possible nor appropriate to read down paragraph 11.9 of the Costs Practice Direction so that additional liabilities were not treated as being proportionate.

The supporting judgment Lord Mance supported the judgment of Lord Neuberger and Lord Dyson, and placed particular weight on the legitimate expectation of litigants and their lawyers that the regime applied and was valid.

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The dissenting judgment Lord Clarke disagreed that MGN could be properly distinguished. His Lordship considered that the principles identified by the ECtHR applied to the paying parties’ Article 6 rights and A1P1, which were not of a wholly different character to the Article 10 rights. The regime was discrimatory, disproportionate and unfair, as it did not treat all respondents in the same way but chose a particular class of respondents on whom to impose liabilities far beyond the bounds of what was reasonable or proportionate. Thus the regime was incompatible with the Article 6 rights as well as Article 10 rights. The litigants and lawyers’ legitimate expectation could not render proportionate the discriminatory treatment and was only one factor to take into account when deciding the appropriate remedy. Lord Clarke also held that the regime could have been rendered compatible with Article 6 and A1P1 by simply reading down or striking out paragraph 11.9 of the Costs Practice Direction so that all additional liabilities were included when determining proportionality.

Comment We continue where we left off before the Supreme Court’s intervention. Only time will tell whether this is the end of the story, or if a litigant is brave enough to take this issue to the ECtHR. Such a litigant will receive encouragement from Lord Clarke’s dissenting judgment. However, even if successful, the outcome may simply be the reading down or striking out of paragraph 11.9 of the Costs Practice Direction, rather than undermining the entire regime. Although this may assist paying parties in subsequent cases, whether it provides them with any remedy for historic claims will depend on the basis for the decision and is far from clear. Published on the DR blog on 13 August 2015 Nicholas Bacon QC and George McDonald of 4 New Square are the Editors of Butterworths Costs Service. Butterworths Costs Service contains a complete statement and explanation of the law relating to contentious costs of civil proceedings, costs in criminal proceedings, non-contentious costs, public funding and counsel’s remuneration.


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The cost of Coventry v Lawrence David Bowden, freelance independent consultant

What is the significance of the Supreme Court’s decision that the pre-2013 system of recovering success fees and after the event (ATE) insurance premiums from the losing party is compatible with the European Convention on Human Rights (ECHR)? David Bowden, freelance independent consultant, examines the judgment and talks to Alex Bagnall, associate and costs advocate of Just Costs, as well getting reaction from Mr Coventry and his solicitor Joanne Pooley, partner of Pooley Bendall & Watson. Original news

What were the facts of the underlying case?

Coventry and others v Lawrence and another [2015] UKSC 50, [2015] All ER (D) 234 (Jul)

Mr Coventry and his company Moto-Land UK Limited operate a stadium in Mildenhall in Suffolk. This is used for weekly greyhound racing, stock car racing and speedway racing on summer weekends. Initially Lawrence and Shields complained about a noise nuisance to the local authority. Mr Coventry put up an acoustic barrier to reduce the noise. This satisfied the local authority and it took no further action.

Lawrence and Shields (Lawrence) brought a noise nuisance claim in relation to Mr Coventry’s speedway track. Lawrence’s lawyers acted on a ‘no win, no fee’ arrangement. At trial Lawrence and Shields were awarded damages of just over £10,000. Mr Coventry had that ruling overturned in the Court of Appeal, but the Supreme Court restored the trial judge’s ruling. Lawrence’s legal costs for all courts were nearly £1.5m. Lawrence sought recovery of these costs from Mr Coventry. In a previous judgment Lord Neuberger said ‘these figures are very disturbing’ (Coventry v Lawrence [2014] UKSC 46, [2014] 4 All ER 517 at para [34]). The Supreme Court set another hearing to determine whether the success fee and ATE premiums (which formed over £1.3m of the costs) were recoverable. In its reserved judgment handed down on 22 July 2015 a majority of five judges in a seven-judge court held that the system set up by the Access to Justice Act 1999 (AJA 1999) in relation to the recovery of additional liabilities (that is success fees and ATE premiums) was compliant with the ECHR. There was a strong dissenting judgment by two judges. Significantly, four of the seven judges were unanimous in labelling this case as ‘an awkward case’. There may be a final appeal to the European Court of Human Rights in Strasbourg.

Lawrence then brought a noise nuisance action on a ‘no win, no fee’ arrangement through Richard Buxton Environmental Law. At trial, HHJ Seymour ruled there was a noise nuisance, dismissed all other claims and made an order that Mr Coventry paid only 60% costs (Lawrence v Fen Tigers Ltd [2011] EWHC 360 (QB), [2011] 4 All ER 1314). Mr Coventry appealed and was successful in the Court of Appeal (Lawrence v Fen Tigers Ltd [2012] EWCA Civ 26, [2012] 3 All ER 168). Lawrence appealed and the Supreme Court restored the trial judge’s decision (Coventry v Lawrence [2014] UKSC 13, [2014] 2 All ER 622). Mr Coventry was responsible for his own costs, 60% of his opponent’s costs at trial and his opponent’s costs of the appeal. The Supreme Court took the case to resolve a conflict which had been identified in nuisance in another case, Barr v Biffa Waste Services Ltd [2012] EWCA Civ 312, [2012] 3 All ER 380. With hindsight, it would have been better for Barr to have been heard by the Supreme Court because Biffa was a company with substantial resources.

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What damages were Lawrence and Shields awarded? The trial judge awarded £10,325 only. There is an error in the majority judgment (para [4]) where this is stated to be £20,750. This is wrong and the correct damages figure is set out in para [325] of HHJ Seymour’s judgment.

What costs have been incurred?

At the February 2015 hearing, it was said by counsel that the total additional liability (that is success fee and ATE) that Coventry seeks from Mr Lawrence was then £1.3m. Of course, all figures will be subject to a detailed assessment of costs which has not yet occurred.

What issues did the Supreme Court address? There were essentially two issues: • Should a costs judge consider the circumstances of a paying party when assessing costs? • Is the AJA 1999 system compliant with the ECHR?

What did the majority of the Supreme Court rule on the paying party’s circumstances? Under the Costs Practice Direction (CPD) (pre-1 April 2013), a costs judge assesses base costs and then goes on to assess success fees and ATE separately. Mr Coventry submitted that this is wrong and that the overriding objective in the Civil Procedure Rules 1998, SI 1998/3132 (CPR) means that his circumstances must be taken into account too. Mr Coventry said he fell into a category of ordinary uninsured non-rich litigants and that an exemption should be carved out for this category of litigants. On the first issue, the majority ruled against Mr Coventry.

What did the majority of the Supreme Court rule on the ECHR? Why is this case of such significance?

ECHR, art 6 provides that:

Legal aid was abolished for the majority of civil cases when AJA 1999 was brought into force. In England and Wales, to replace it, lawyers were allowed to act instead under conditional fee agreements (CFAs). These CFAs meant no costs were payable if a litigant lost but, to compensate, a success fee of up to 100% of the base costs could be recovered from the other side on successful cases. A CFA litigant usually took out a policy of ATE insurance to pay the other side’s costs if his claim failed. Where a CFA litigant won, the other side also had to pay this ATE premium. AJA 1999 envisaged that litigants facing a CFA opponent would usually have insurance to cover claims—for example, third party liability under a car insurance policy.

‘In the determination of his civil rights and obligations...everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’

In April 2013, this system was reformed when the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012) came into force. For CFAs entered into after April 2013, a CFA litigant had to pay success fees and ATE premiums out of any damages recovered. Mr Coventry says he has no objection to paying the base costs of Lawrence subject to an assessment. Mr Coventry challenged paying both the success fee and ATE and said the AJA 1999 system is ‘grotesque’. If the AJA 1999 system had been held to be invalid, then the UK government could potentially have had to pay compensation to lawyers and insurers who could not recover success fees or ATE premiums for the 13 years the AJA 1999 provisions were in force. The potential bill could have been very large indeed. The AJA 1999 scheme did not apply in Scotland or Northern Ireland.

How is the judgment structured? The majority judgment is a joint judgment that was co-written by the President of the Supreme Court, Lord Neuberger of Abbotsbury, and the Master of the Rolls and head of the Civil Division of the Court of Appeal, Lord Dyson. Lord Sumption agrees with this joint majority judgment and adds nothing else of his own. Lord Mance gives a short judgment concurring with this joint majority judgment. Lord Carnwath agrees with the joint majority judgment and with Lord Mance. Lord Clarke (a former Master of the Rolls) gives a strong dissenting judgment which on the critical issues comes to conclusions diametrically opposed to the majority judgment. The Deputy President of the Supreme Court, Baroness Hale agrees with Lord Clarke’s dissent and adds nothing of her own.

Article 1 of the First Protocol to the ECHR (A1P1) deals with protection of property and provides: ‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.’ Mr Coventry submitted that the system under AJA 1999 was effectively a block on these rights of his. Again, on the second issue, the majority ruled against Mr Coventry.

What does the majority judgment say? The majority note that AJA 1999 was introduced and was there to plug the gap caused by the withdrawal of legal aid for most civil claims. It notes that there was proper prior consultation by the UK government before AJA 1999 was introduced. AJA 1999, ss 27 and 29 introduced the requirement for losing parties to pay a success fee and the ATE premium of the other side when its case was funded on a ‘no win, no fee’ basis. CPR 43.2 and CPR 44.5 sets out how a costs judge assesses these. The majority endorse the well-known costs judgment of the Court of Appeal in Lownds v Home Office [2002] EWCA Civ 365, [2002] 4 All ER 775 that on the standard basis, a costs judge applies a test of reasonableness. The CPD is neither primary nor secondary legislation and does not strictly form part of the CPR. Paragraph 11.9 of the CPD provides that a percentage increase for a success fee (a maximum success fee of 100% was permitted under AJA 1999) ‘will not be reduced simply on the ground that, when added to base costs which are reasonable…the total appears disproportionate.’ The majority note and endorse the three legitimate aims of the Westminster Parliament when AJA 1999 was introduced: • containing the rising cost of legal aid • improving access to the courts for meritorious claims, and • discouraging weak claims


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Lord Mance handed down the judgment and in doing so even he muddled up all the figures. Mr Lawrence’s base costs for the trial alone are £307,642. Mr Coventry is liable to pay 60% of this (£184,585). The success fee for trial is £215,007 and the ATE for trial is £305,000. The costs of the substantive proceedings up to and including the first Supreme Court hearing that Lawrence seeks in total from Mr Coventry are £1,067,000 (see paras [32], [33] of judgment at [2014] UKSC 46). Mr Lawrence estimates that the total costs now sought against him are £1.25m and this does not include the costs of the Supreme Court costs appeal.

This piece will focus on the majority view but, in view of its importance, a summary of the minority view is also set out below.

The majority are at pains to point out that ‘proportionality’ has a double meaning: • in relation to rights under the ECHR, it means a value judgment as to whether UK law meets the stated objective to justify limiting rights under the ECHR, and

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• in relation to costs, the Lownds test that a costs judge will only permit costs ‘which are proportionate to the matters in issue’ The majority also endorse the Court of Appeal’s approach to ATE assessment in the well-known costs case of Rogers v Merthyr Tydfil County Borough Council [2006] EWCA Civ 1134, [2007] 1 All ER 354. The majority agree that a costs judge does not ask whether an ATE premium was proportionate to the importance of the case. Instead, if an ATE premium was necessarily incurred, a costs judge can find it to be proportionate. The majority also endorse the Court of Appeal’s ‘readyreckoner’ approach to assessing success fees set out in Atack v Lee [2004] EWCA Civ 1712, [2004] All ER (D) 262 (Dec). The majority note the flaws in AJA 1999 that were set out in the Jackson review of civil litigation: •  lack of focus of the regime •  absence of any incentive for appellants to control costs •  costs were only assessed at the end of proceedings •  blackmail or chilling effect of a regime which drove a party with a good case to settle, and •  claimant’s solicitors could cherry pick cases to take on a CFA In MGN Ltd v United Kingdom [2012] ECHR 39401/04, the Strasbourg court held this was enough to prevent the recovery of a success fee. However, the majority held that this case founded on ECHR, art 6 (access to the court) is different and therefore is distinguished. As to ‘unfairness’ this holds no sway with the majority who brutally say this is irrelevant. Instead, the majority say the question is whether the AJA 1999 system ‘was a disproportionate way of achieving a legitimate aim’. The majority pray in aid an early judgment of Lord Dyson in Swift v Secretary of State for Justice [2013] EWCA Civ 193, [2013] All ER (D) 155 (Mar) to support this. The majority hold that the Westminster Parliament had to make hard choices but that the scheme in AJA 1999 was put in place after wide public consultation. It has to be noted that in these consultations it was never considered what would happen on appeals where the exposure for ATE snowballed in the way it has here. The majority brush this aside saying ‘a few unfortunate results are inevitable’. Similarly, the majority say MGN permits it to rule that AJA 1999 is ECHR compatible because ‘a legislative or regulatory scheme may in some circumstances be compatible with the Convention even if it operates harshly in individual cases’. The majority say AJA 1999 is compatible with the ECHR because it is a general measure which was: •  justified by the need to widen access to justice following the withdrawal of legal aid •  made following wide consultation, and •  fell within the wide area of discretionary judgment of the UK government and rule makers Mr Coventry submitted that better alternatives were available, such as a levy on all litigants. However, this is rejected by the majority as ‘speculative’ and ‘highly controversial’. Mr Coventry’s attempt to carve out an exception for ordinary ‘non-rich’ litigants that were embroiled in a once-in-a-lifetime piece of litigation also had cold water poured on it by the majority who lambasted this idea as ‘uncertain and arbitrary’. The majority view Mr Coventry’s best submission as that relating to the CPD where a costs judge cannot stand back and assess the overall reasonableness of success fees and ATE at the end of litigation. To this the majority brush this substantial submission aside by saying ‘it would have imperilled the whole scheme’.

Coventry’s counsel branded ‘grotesque’) as not incompatible with ECHR, art 6 or A1P1. Rather oddly, the majority go on to consider what they would have ruled in relation to remedy if they had found in Mr Coventry’s favour. Perhaps this is an indication the majority know at heart that the majority judgment cannot survive in its present form after the Strasbourg court has scrutinised it. The majority say the CPD cannot be read down as this would involve a departure from Lownds. The majority say a revisiting of the CPD to allow costs judges to look at the financial circumstances of a paying party (in the case of Mr Coventry of comfortable but not overly substantial means) ‘cannot be achieved under the guise of interpretation’. In conclusion, the majority say that if, contrary to its view, the AJA 1999 scheme was incompatible with ECHR, art 6 and/or A1P1, they would neither read it down so as to make it compatible, nor strike the AJA 1999 scheme down nor disapply it.

What else did Lord Mance say in agreeing with the majority view? Lord Mance is clear that ‘this is an awkward case’. He notes the ‘eyecatchingly large costs exposure’. Lord Mance feels that even a small business should have carried some form of insurance—and that one carrying on motor racing should have had insurance against noise nuisance. This is all wise after the event, but neglects the reality that a motor racing business had been carried on at the site for 40 years and that sound insulation had been installed which satisfied the local authority that there was no such noise nuisance. Lord Mance says that legal certainty, consistency and the legitimate expectations of claimant lawyers acting on ‘no win, no fee’ deals (that they will recover success fees in due course) ‘all militate in favour of the Supreme Court upholding the system’.

What did the minority rule? The minority agree with two judges in the majority that ‘this is an awkward case’. However, because of its awkwardness, they rule that the AJA 1999 scheme is not compatible with the ECHR. They are swayed by the academic criticism of the scheme by Professor Zuckerman in his book on civil procedure where he notes that: ‘An individual defendant without the benefit of a CFA is in a worse position that the CFA claimant because he is exposed to the risk of having to pay as much as twice the claimant’s reasonable and proportionate costs.’ The minority say this point has great force and the AJA 1999 system is ‘unfairly discriminatory against some classes of respondent by comparison with others’. The minority note the striking feature of a CFA is that it is available to poor litigants such as Lawrence as well as rich litigants such as Naomi Campbell. The minority note that the AJA 1999 scheme provides a ‘risk free means of providing access to lawyers to those who could afford to fund it in other ways’. The minority say the facts of this case bear this out and again reassert that Lawrence’s costs in this case ‘are very disturbing’. The minority note and endorse the extra-judicial adverse criticism of the AJA 1999 scheme. They cite a speech from Sir Anthony May where he asks: ‘Is it in principle right that an eventual losing party to litigation should be at risk of paying a greater uplift if he has a strongly arguable case he nevertheless loses, whereas, if he has a rotten case, the justifiable uplift will be less?’ The minority respectfully disagree with the majority on the balancing exercise they have struck on the ECHR rights. The minority say that:

In conclusion, the majority find the AJA 1999 scheme (which Mr 8 Links in red indicate where Lexis®PSL Dispute Resolution subscribers can access further information.

‘The interest of any defendant in being able to defend himself…in litigation, at a reasonable and proportionate cost is also one of some weight and it certainly engages…a balancing exercise.’ The minority are clear that ‘just as a claimant is entitled to a fair trial, so too is a defendant’. The minority are swayed by that fact that Mr Coventry was ‘faced with one-off litigation which has involved him in eye-catchingly large costs exposure’. The minority find the AJA 1999 scheme to be ‘discriminatory and disproportionate and disregards their rights’ (ie those of Mr Coventry).

Any thoughts on the case now that it is finished in the UK? At the February hearing, Mr Robert McCracken QC for Mr Coventry submitted: ‘The law like the Ritz is open to rich and poor alike but here we are expected to pay for our own meal, that of our opponents (from an unpriced menu) and those of their lawyers and insurers on a future occasion.’ These are istill the thoughts now of Mr Coventry and his solicitor, Mrs Pooley, who agree that this is an awkward case.

What should lawyers do next? Mr Coventry is considering any next steps with his counsel. There are powerful indications in the minority judgment that the costs outcome for Mr Coventry does not comply with either the ECHR or A1P1. There is a time limit of six months from the handing down of the Supreme Court judgment to lodge an application with the European Court of Human Rights in Strasbourg. If this case does go to Strasbourg, there will be a delay before it is heard. The Attorney General of Northern Ireland supported Mr Coventry in submissions before the Supreme Court. His case was structured around two recent cases from the Strasbourg Court (Stankov v Bulgaria [2007] ECHR 68490/01 and Klauz v Croatia [2013] ECHR 28963/10 where high court fees were held to infringe ECHR, art 6. There is no mention of these cases in any of the Supreme Court judgments. In MGN, the Strasbourg Court ruled unanimously that there has been a violation of ECHR, art 10 in relation to the success fees payable by Miss Campbell. If Coventry does go on to Strasbourg, then these two cases, taken with the Naomi Campbell ruling, could be an indicator of which way the Strasbourg court might ultimately rule.

Are there any final thoughts from a costs solicitor’s perspective? Alex Bagnall: Had the Supreme Court declared that the recoverability regime was incompatible with the ECHR, the effects could have been apocalyptic. Commentators have suggested that such a declaration could have resulted in anything from nothing at all through to the unravelling of all costs settlements that have been reached since the recoverability regime was incepted at the turn of the century. Significant amounts of satellite litigation would almost certainly have arisen.

Fortunately, this issue does not fall to be considered. The mood among costs professionals is relatively unanimous—the decision of the Supreme Court was the correct one. While the recoverability regime was far from perfect, the Supreme Court identified that it is impossible to devise a fair scheme which promotes access to justice for all litigants in the absence of a widely available civil legal aid scheme. There will, of course, be some who are disappointed by the judgment. There still exists a recoverability regime in certain types of case, for example: •  within mesothelioma •  certain insolvency and defamation cases •  in relation to specified ATE insurance premiums in clinical negligence matters A declaration of incompatibility would have been welcomed by those who are frequently defendants in such matters. After months of uncertainty, it is now business as usual for costs lawyers.

What has been the reaction from Mr Coventry’s solicitor, Joanne Pooley? Ms Pooley agrees that this has been an awkward case but has no regrets about taking this case on. It has been a one-off experience for her and her firm. She doesn’t think a case like this will come her way again. The original file of papers has now expanded somewhat to take over her office. Ms Pooley praises the excellent memory of both her client and junior counsel who has had the case from the beginning. She is surprised that the split between the judges was only 5:2. The consultations before AJA 1999 never considered the figures or circumstances that have now arisen in this case.

And we should allow Mr Coventry to have the last word What about those acting for others involved in costs proceedings? For costs lawyers who are dealing with assessment of costs in more routine costs proceedings in either the Senior Courts Costs Office or before costs judges in the county court, this judgment is a bit of a damp squib and it is business as usual. The majority judgment in particular means the attack on the CPD has been dismissed. This means that costs judges will not have to consider the circumstances of paying party when assessing a receiving party’s costs. Further, para 11.9 of the CPD will stand and the additional liabilities (be it success fee or ATE premium) will not be reduced by a costs judge (as is the case now) simply on the ground that when added to the assessed or reasonable base costs the total appears disproportionate.

How will this affect the conduct of costs proceedings? The outcome of this case does not affect the liability to pay base costs as they are assessed by a costs judge or agreed between the parties. In theory it is possible to ask a costs judge for a stay if Mr Coventry decides Links in red indicate where Lexis®PSL Dispute Resolution subscribers can access further information.

Mr Coventry is happy with the service he has received from his legal team including Mrs Pooley and his junior counsel (Sebastian Kokelaar) and leader (Robert McCracken QC) who acted pro bono in the Supreme Court costs appeal. It would have been a better outcome if the Supreme Court had dismissed the appeal from the Court of Appeal rather than upholding it. He feels it was unfair that he has been made to pay the price for determining bright line distinctions in the law of nuisance and it would have been fairer if the Barr case was taken on appeal on this point as Biffa Waste Management have deep pockets and could afford to lose to clarify the law. Mr Coventry feels he has been let down in this case—particularly in the Supreme Court and especially in view of the indication of Lord Neuberger in the second judgment where he said the costs were ‘very disturbing’. He has the stomach though to continue the fight to Strasbourg if that is where he has to go to get justice that the UK courts have denied him.


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The minority consider what order they should make in view of their incompatibility finding. The minority say it is at least arguable that the CPD can be read down but say there would be scope for further argument on this if they were in the majority.

to take his case to Strasbourg. However, such a stay, even if granted, would only be in relation to additional liabilities. In practice, as this case has now reached its final resolution in the UK by the Supreme Court it seems highly unlikely that an application for a stay would be granted.

Future changes to the costs management regime—as at 5 August 2015

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Janna Purdie, Solicitor in the LexisPSL Dispute Resolution team

This Practice Note sets out the future changes to the costs management regime and costs budgets as taken from HH Judge Coulson QC’s costs management report and input from the CPR committee (CPR Committee July 2015 minutes). The changes are aimed at alleviating significant delays encountered as well as the judicial time expended. The Practice Note covers the types of cases excluded from the regime, the impact of the value of the claim, changes to Precedent H, the approach of the court and whether existing rules will be changed or deleted. The costs management report advocates a number of changes to the costs management approach currently in place, but such changes will not be in force on 1 October 2015 alongside other CPR changes. This is because although there was agreement at the CPR Committee, amendments are required and these are due to be discussed at the October CPR Committee meeting. In the meantime, it will be helpful for practitioners to have an insight into the changes which are on the cards together with areas which have been considered but which will not be subject to change. The issues considered fall into a number of categories: • whether a type of case should be excluded from costs management: • children—to be excluded from the scope of costs management; normal judicial discretion may be used to apply the regime in an individual case • protected parties—to remain within the scope of costs management • terminal illness/short life expectancy—if appropriate the court can exercise its discretion to disapply costs management (or to deal with it on the papers only) where a party has a short life expectancy or is particularly elderly. This will be provided for in the practice direction • clinical negligence/personal injury cases—to remain within the scope of costs management, except for children cases split trials—no specific provision was needed • the impact of the value of the claim: • £10m value band—to be retained; it will not be modified generally or for individual categories of case. Costs management will therefore be the norm for cases valued below £10m • lower value cases—the simplified Precedent H, ie one-page precedent, is currently used for cases up to £25,000 in value. This should be increased to £50,000 in value. Note: the aim is to bring in fixed costs for all cases up to £50,000 in value as soon as possible • the costs budgets themselves: • defendants’ costs budgets—these should continue to be provided • agreeing costs budgets—provisions to encourage agreement will result in costs budgets being filed and exchanged 21 days before the Costs Management Conference and parties to either: • agree the budgets, or • agree as many component elements as possible, and to file and exchange, seven days before the CMC, alternative figures for the phases not agreed • form Precedent H—the form is to be updated to improve presentation and content. While contingencies will continue to be included, they should only be added if an event is more likely than not to happen. Although no case is referred to in Coulson’s

report, this is the approach taken in cases, for a recent example see: Costs budgets, libel cases and contingencies (Stocker v Stocker). An attempt should also be made to limit the amount of detail provided by way of schedules of assumptions. For an example of where the assumptions undermined the costs budget, see: Dealing with wholly unreasonable and unreliable cost budgets (CIP Properties v Galliford Try and others) • the approach of the court: • Hourly rates etc—the practice direction will be drafted to clearly set out that court approval relates to the totals for each phase; not the rates or the hours. This arose out of different perceptions as to what the courts should consider when approving budgets. The position is that the court’s role is not to fix or approve hourly rates, and that the underlying detail behind the totals for each phase is provided for reference and back-up, not for the court to approve that level of detail • paper applications—dealing with costs management on the papers alone is a matter for individual judicial discretion. There will be no specific provision in the CPR for this. Note: there was opposition from the judiciary on making provision for paper applications in the rules as they consider that the advocacy is vital and should speed up the process. See [4.8] of Coulson’s report • rules to be changed or removed: • CPR 3.18—no change to be implemented. Note: this rule deals with ‘assessing costs on the standard basis where a costs management order has been made’. The issue raised in Coulson’s report, at [4.10], was that ‘if this rule were ameliorated, budgets might be less cautious and agreement between the parties may become easier’ •  incurred costs—no change. These will be dealt with by way of detailed assessment. The approach is to seek to ensure that the complexity of costs management is reduced and courts should not seek to undertake a summary assessment of incurred costs at the CMC. However, the judicial approach has been somewhat different in terms of trying to balance disproportionate costs against estimated costs, to prevent front loading by parties—see: Dealing with wholly unreasonable and unreliable cost budgets (CIP Properties v Galliford Try and others) • costs capping—the rules are no longer used and should be removed



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New Bill of Costs pilot scheme Janna Purdie, Solicitor in the LexisPSL Dispute Resolution team

This Practice Note considers the new pilot scheme brought in under CPR PD 51L which will run from 1 October 2015 to 1 April 2016. The scheme will apply to detailed assessment proceedings in the Senior Courts Costs Office (SCCO) and will be voluntary. The pilot scheme in CPR PD 51L is being run to test the New Bill of Costs introduced by the Hutton Committee in response to the issues raised in the Jackson Final Costs review. For background on this, see Practice Note: New Bill of Costs and J-Codes on page 12, below. Note: a consultation on the New Bill of Costs is still open. For information on the consultation and the ability to comment, see News Analysis: New Bill of Costs—consultation which can be found on page 23.

• the new Bill of Costs will comply with the provision in CPR 47.6(1)(b), and all references to a Bill of Costs in Section 5 of CPR PD 47 will include the New Bill of Costs • the intention is for the New Bill of Costs to be mandatory for detailed assessment proceedings in the SCCO from April 2016, so the six months of the pilot scheme could be considered to be a transition period

New Bill of Costs—precedent AA Precedent AA is the model form for the New Bill of Costs.

When will the pilot scheme apply?

Copy of PD51L Precedent AA New Model Bill of Costs.xlsx

The pilot scheme will run from Thursday 1 October 2015 through to Friday 1 April 2016 in detailed assessment proceedings in the Senior Courts Costs Office (SCCO).

Serving the New Bill of Costs

For the pilot scheme to apply, the receiving party will need to use the new Bill of Costs (Precedent AA) when serving the detailed assessment proceedings on the paying party either on or after 1 October 2015. The receiving party may elect instead elect to use the Old Bill of Costs instead; this is therefore a voluntary pilot scheme, in so far as the receiving party is concerned. The paying party has no choice as to whether the old or the New Bill of Costs is used. If served with the New Bill of Costs the paying party is required to comply with the provisions in the pilot scheme. It should be noted that: • the detailed assessment proceedings will be treated as taking place under the New Bill of Costs pilot scheme • the detailed assessment proceedings continue under the existing provisions in CPR 47 and CPR PD 47, para 5.1 as the pilot scheme in CPR PD 51L supplements those provisions; the only difference is the form of the Bill of Costs the receiving party elects to use Links in red indicate where Lexis®PSL Dispute Resolution subscribers can access further information.

You should be aware that the New Bill of Costs needs to be: • served in PDF format, and • provided to both the paying party and the court as a spreadsheet by electronic means, such as email

Form and content of the New Bill of Costs When completing the New Bill of Costs the provisions in CPR PD 47, paras 5.7–5.22 will apply in so far as they are not inconsistent with the form and content of the New Bill of Costs.


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New Bill of Costs and J-Codes Janna Purdie, Solicitor in the LexisPSL Dispute Resolution team

This Practice Note considers the introduction of the new Bill of Costs underpinned by the use of J-Codes. The J-Codes will be used for time recording and then imported into the Bill of Costs to enable the production of costs budgets, a statement of costs for summary assessment and a Bill of Costs for detailed assessment. We consider whether the use of J-Codes will be mandatory as well as the parallel use of the old and new Bill of Costs between 2016 and 2018 depending on the court and whether you are involved in a costs managed case. Consultation The New Bill Committee chaired by Alexander Hutton QC has opened a consultation to enable you to make comments or suggestions on the new Bill of costs format. The closing date was Friday 18 September. For information, see: New bill of costs—consultation, which can be found on page 23 below.

Background The current system for producing a Bill of Costs is cumbersome, does not engage with the technological advances available and cannot easily be produced from the time recording made by solicitors throughout the time working on a litigation matter. Since the introduction of the costs budgeting regime other issues have arisen, such as the fact that there is no requirement to set out how the Bill of Costs complies with the last approved budget. 12

Jackson’s final costs report, prior to the introduction of costs budgeting, made two recommendations: • 106 A new format of bill of costs should be devised, which will be more informative and capable of yielding information at different levels of generality. • 107 Software should be developed which will (a) be used for time recording and capturing relevant information and (2) automatically generate schedules for summary assessment of bills for detailed assessment as and when required. The long term aim must be to harmonise the procedures and systems which will be used for costs budgeting, costs management, summary assessment and detailed assessment. The issue was how this was to be achieved. In October 2011 the Association of Costs Lawyers report entitled ‘Modernising Bills of Costs’ recommended investigating whether the Uniform Task-Based Management System (UTMBS) could be adapted and then used for the

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production of the new format Bill of Costs. The benefit of the system was that it was already in place (it is operated by Legal Electronic Data Exchange Standard (LEDES) who ensure a consistency in its use across the globe) and its platform is a system of standard time recording codes for use in litigation. A working group, the Jackson Review EW-UTMBS Development Steering Committee (the Committee), was set up under the Chairmanship of Jeremy Hunt QC to consider the use of the UTMBS system. The Committee is now chaired by Alexander Hutton QC. The Committee comprises of Costs draftsman, costs lawyers, a costs judge and technical people so straddles knowledge of costs issues with IT experience and knowledge. Following a detailed review and consideration the Committee recommended the use of UTMBS as adapted for use in the English and Welsh legal market. it would be known as EW-UTMBS or ‘J-Codes’. The codes were to be developed to ensure that they complied with the essential aspect in Jackson’s final report which was that the codes be used for time recording. Three senior judges, Lord Dyson, Master of the Rolls, Lord Justice Jackson and Senior Costs Judge Hurst also endorsed the use of J-Codes on a 30 July 2014, a move which was perhaps indicative of the importance the courts were placing on the new approach to dealing with costs. The LEDES Oversight Committee endorsed the EW-UTBMS J-Code-set in a press release on 5 September 2014 stating: The J-Codes are a set of UTBMS codes developed by the Jackson Steering Committee, working at the behest of the Judiciary of England and Wales, and charged with developing a set of litigation taskcodes specifically for their own region and industry sector. In this case, the LOC assisted the Jackson Steering Committee (chaired by Alex Hutton QC and project coordinated by David Nelson who is the LOC Standards Coordinator) in developing the J-Codes, as the first stage of their objective to develop a new model-form ‘Bill-of-Costs’ for use by the courts in assessing costs to be awarded in litigation cases.

The background to the development of the J-Codes is set out from page 4 of the EW-UTBMS Civil Litigation J-Code Set Overview and Guidelines document: • J-Codes are based on a sequencing of the work undertaken by litigators during the course of the litigation • J-Codes have been aligned to the phases of the litigation set out in Precedent H - this was in fact a development constraint so as to enable the easy comparison of budgeted costs to actual incurred costs by the courts or other parties that need to compare these costs. Given this, the use of J-Codes, when recording time spent on a matter, should make this comparison much easier eg if seeking variation of your costs budget •  implementation notes are provided from page 31 of the J-Code document (this covers both lawyer training and software issues)

J-Codes and time recording The J-Codes form the foundation for the time recording which solicitors will have to embrace moving forward. A number of points arising in relation to time recording: • the time must be recorded under pre-assigned codes which relate to a ‘phase’, then a task within a phase and then the individual activity within that task: • Phase—this is generally the phase set out in Precedent H for costs budgeting, in this case Witness Statements. Note: there are some additional phases which have been added such as Detailed Assessment • Task—this is the element of the phase eg own side’s witness statements or other side’s witness statements • A ctivity—this is the description of work that is being done eg discussing the statement with the witness • for solicitors who currently record time under the UTMSC codes there is the ability for the codes they are used to be mapped such that the time recording when imported into the Costs Budget will apply the EW-UTMSC codes ie the J-Codes 13

• for solicitors whose time recording is does not have a drop down list to assign a J-Code when recording time, it will make the costs draftsman’s job a lot easy to record the J-Code within the narrative you provide for your time recording so that when going through the time recorded costs it is easy to assign to a J-Code

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• when time recording a narrative in the form of an attendance not should be added into the time recording details as this can then be imported at same time as the time costs into the Bill of Costs • counsel’s costs are currently being dealt with under J-Codes as an expense. This does not assist in terms of time recovery for specific phases eg the use of counsel in applications for specific disclosure. Consider requesting that Counsel provide fee notes by phase so that their work can be correctly assigned For a solicitor spending discussing a witness statement with the solicitor would need to apply the following J-Code: JG10. The issue for practitioners will be whether they should be implementing the J-Codes as part of their time recording process now. There is no mandatory requirement for lawyers to use the J-Codes and solicitors cannot be made to use them. However, this does not mean they should not be used. For those dealing with matters for which costs issues may come before the court at the end of 2015 or later, understanding the J-Codes and implementing them into the firm’s time recording system may well reap benefits in terms of dealing with costs issues before the courts.

J-Codes and expenses There will be a series of J-Codes to cover different categories of expenses.

New Bill of Costs Bill of Costs prepared by a costs draftsman reviewing a solicitor’s file and going through it item by item is time-consuming and very expensive. The Bill of Costs will take the form of a spreadsheet which is being developed utilising the J-Codes within its spreadsheet analysis. It will be much easier to produce than the existing method for producing a Bill of Costs and although some time will need to be spent in producing it, it will be considerably less than previously. It will be more transparent and more user friendly in terms of producing a synopsis of the work undertaken. Points to note: • the Bill of Costs will be available for free in a xml format • due to the use of xml it will be compatible with many systems • the spreadsheet will be very large but it can be printed off in landscape format with about 14 pre-determined columns showing in the print out; the columns can be changed • the spreadsheet will be capable of emailing so all parties will be able to access the underlying costs information • the bill of costs will enable the court and all parties to compare each phase with the corresponding phase in the Costs budget • some human intervention will be required, eg checking that narrative provided by a fee earner during time recording does not include privileged material • the Bill of Costs will auto calculate VAT dependant on the date of the entries so there is no requirement for human calculation. The same will apply in respect of fee earner hourly rates if these rise during the period of time that the Bill of Costs covers

• the Bill of Costs will be created by importing solicitors time recording; the time claimed will therefore be that provided contemporaneously by the solicitors when time recording on the case • the Bill of Costs can be used by law firms with no time recording systems in place. However, all the time recording will need to be inputted manually

When is this all coming into force? The timing of the use of the Bill of Costs is as follows: • 3 August 2015 - 18 September—consultation process on the New Bill of Costs. For information on the consultation, see: New bill of costs—consultation • 1 October 2015—voluntary use of the New Bill of Costs and the associated J-Codes will be in place under new Practice Direction 51L. For further details, see Practice Note: New Bill of Costs Pilot Scheme • beginning of April 2016—mandatory use of the Bill of Costs will be applied for all cost managed cases in which costs orders are being considered by the SCCO. This will also be dealt with by way of a pilot scheme and it is envisaged that it will run for two years to enable information and feedback to be collected and considered. It is still to be determined whether the mandatory use of the New Bill of Costs will be linked to the date of the costs order ie any costs order dated after the pilot scheme comes into force or some other date. If the Bill of Costs is prepared under the old method when the New Bill of Costs should have been used then costs will not be recoverable. Note: even if costs were incurred in say 2015 and not subject to solicitors recording them as J-Codes they will have to be ‘converted’ to J-Codes for the purposes of the Bill of Costs. The advice is therefore to ensure that any current time recording contains the required J-Codes The CPR Committee are currently considering the position that will taken if a party uses the new Bill of Costs when they should have used the old one. Note: old bill of costs will still be used for non costs managed cases during the two-year pilot scheme in the SCCO and of course in all other courts. There will therefore be a period of time in which both the old and New Bill of Costs can be used but not interchangeably. If in doubt the old form is used unless in the SCCO for a costs managed case.

What impact will the review of Precedent H have? The New Bill of Costs and the J-Codes are based on a phase system as is Precedent H. Currently Precedent H is being reviewed by a CPR Sub Committee which is chaired by Coulson J. If changes are made to the precedent in terms of the phases then the Committee will need to consider to what effect the changes will impact the J-Codes and new Bill of Costs. For information on the progress of the costs management review, see Practice Note: Future changes to the costs management regime—as at 5 August 2015.

Summary assessment After the introduction of the Bill of Costs the Committee will be working on producing a new form for summary assessment.

• the summaries produced within the Bill of Costs will almost all be pivot tables ie the figures will be auto calculated by the spreadsheet • challenges remain in terms of dealing with more difficult circumstances such as partial costs orders, multiple party litigation and interim statute bill



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Pre-action costs—recovery Janna Purdie, Solicitor in the LexisPSL Dispute Resolution team

This Practice Note considers the recovery of costs incurred during pre-action. It sets out provisions in the Senior Courts Act 1981, CPR 44, pre-action protocols and court guides as well as Re Gibsons Settlement Trusts, McGlinn and Callery, being the common law authorities. Pre-action costs

Recovery of pre-action costs—principles

Prior to the commencement of litigation, parties may incur considerable costs in undertaking work required under a pre-action protocol or in their absence, the Practice Direction—pre action conduct (pre 6 April 2015) or the Practice Direction Pre-Action Conduct and Protocols (from 6 April 2015).

It is important to be aware that such costs cannot be claimed as damages by a party as part of their claim or counterclaim (Ross v Caunters). Such costs are only recoverable if they are part of an order made by the court providing for costs recovery.

Examples of the type of work that will need to be undertaken include obtaining detailed instructions from the client, obtaining and considering documentation, as well as all the discussions and correspondence with the other side. Other potential types of work include obtaining factual witness evidence, if dealing with a fact heavy dispute, possibly instructing experts, and potentially a mediation. Practitioners need to have an understanding of the extent to which such costs are recoverable, whether they act for the intended claimant, intended defendant or a third party.

The ability of the court to order that pre-action costs should be payable by one party to another is provided for both in the CPR and in the Senior Courts Act 1981: • CPR 44.2(6)(d)—this specifically provides the court with a discretion to make an order for costs incurred prior to commencement of the proceedings. This provision seeks, in part, to facilitate pre-action settlement where the parties have settled the issues but are unable to agree costs. The parties can enter into a settlement and then commence a Part 8 claim to deal with the issue of costs. It is important to be aware of the Court of Appeal 15

Links in red indicate where Lexis®PSL Dispute Resolution subscribers can access further information.

decision in Callery which provided that when construing the terms in the rule dealing with pre-action costs, the court was to consider the ‘costs which would have been recoverable in the proceedings had the proceedings been commenced’. For information on costs Part 8 claims, see Practice Note: Costs—only proceedings (Part 8)  • s 51, SCA 1984—provides the court with the discretion to make a costs order for ‘costs of or incidental to the proceedings’. This provision applies after proceedings have commenced and the court is asked to make a costs order. The difficulty with this provision is what is meant by ‘costs incidental to the proceedings’. Does it include pre-action costs? The following authority sets out the court’s position:

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• Re Gibson’s Settlement Trust—it was held that pre-action costs are, in principle, incidental of the proceedings and therefore the court had a discretion whether to include them in a costs order  • M cGlinn—it was held that pre-action costs were as a matter of principle recoverable as costs incidental to the litigation. However, where such costs were incurred in dealing with issues which were dropped before commencement of proceedings, those costs could not be said to be incidental to the proceedings and were therefore not recoverable within the provision in s 51. This is a first instance decision and so is not binding on other courts. The policy behind the decision was that a claimant should not be penalised in costs when taking the correct approach and dropping issues which should not be pursued. However, many will see this is as an unfair approach vis a vis the defendant. The court did state that a different approach might be appropriate if there were exceptional circumstances and there was unreasonable conduct. There have been no cases since which consider this. For a detailed analysis of this decision and its impact, see Pre-action protocol costs: settle or fight?, New Law Journal, 2 September 2005—available in the Further Reading section to the right hand-side of this page.  • R oundstone Nurseries—Coulson J agreed with the position set out in McGlinn that pre-action costs were as a matter of principle recoverable as costs incidental to the litigation 

Recovery of pre-action costs—practice Whether costs incurred during the pre-action process are recoverable will, in the main, depend on whether proceedings are ultimately commenced.

Proceedings not commenced at all Where no proceedings are commenced then the general position is that neither party will incur any liability for the other party’s costs. Note: parties may settle while not agreeing on the issue of costs. They may then commence Part 8 proceedings seeking a costs order from the court. For detailed information about Part 8 claims, see Practice Note: Costs-only proceedings (Part 8).

Proceedings commenced do not deal with some pre-action issues The costs incurred on the pre-action issues which have fallen away and are not pursued will not be recoverable (McGlinn). It is important to be aware that this is the case even if the defendant has incurred costs in seeking to ‘successfully persuade’ a claimant not to pursue certain claims. Such costs are simply not incidental to the proceedings given that the issues fell away before the claim was commenced. There is the potential for an exception to this case as seen in McGlinn where the court noted that it could take a different approach to the issue of costs if there were exceptional circumstances which gave rise to unreasonable conduct. However, what was meant by ‘exceptional’ and unreasonable’ was not considered within the decision and nor has it been considered by the courts since. Practical tip: if during the pre-action stage of a dispute a settlement is reached so that proceedings are avoided, it is important to make sure that you seek to deal with the issue of costs incurred up to that date in the 16

settlement agreement. A failure to deal with costs in the agreement will mean that they are not recoverable as part of the settlement agreement. Practical tip: if a settlement has been reached as to who pays the costs incurred during the pre action stage but no agreement can be reached as to the quantum of costs then the parties can bring a costs only claim to ask the court to reach a decision on the quantum of the costs. For more detailed information, see Practice Note: Costs-only proceedings (Part 8)—general.

Proceedings commenced If proceedings are commenced the cost provisions within the CPR come into play and costs incurred pre-action can be recovered. Practitioners need to consider a number of issues: • fixed costs—in certain circumstances a claim is subject to the provisions in CPR 45 by which only fixed costs are recoverable. This means that the court will order that the unsuccessful party should only pay a fixed sum in respect of the successful party’s solicitors’ costs. For information on fixed costs, see Practice Note: Fixed costs— what are they? as well as specific Practice Notes: Fixed costs—money claims, Fixed costs—land claims and Fixed costs—fast track trial costs • costs budget—make sure that your costs budget, if required for the proceedings, sets out the pre-action costs which were incurred. For more information on costs budgeting, see Practice Notes: Costs budgets—when are they required and how to complete one, Costs budgets—service and filing, Costs budgets—the courts’ approach and Costs management orders. In addition, see the following checklists: Determining incurred costs for costs budget—checklist and Issues to consider when completing costs budget—checklist • pre-action costs orders—for the costs to be recoverable the court will need to include them in a costs court order. CPR 44.2(6)(d) specifically provides for the court to make a costs order in respect of costs incurred prior to commencement of the proceedings and s 51 of SCA 1981 provides for recovery of pre-action costs which fall within the wording ‘costs of or incidental to the proceedings’ • issue based costs orders—the court can encounter difficulties when trying to assess pre-action costs in circumstances where costs were expended on issues which were then dropped prior to commencement of the litigation. This is on the basis that such costs are not recoverable and need to be separated in someway from those which are recoverable. The court may consider taking an issue based approach to determining the costs allowable from the pre-action stage. Such orders are allowed, as seen in CPR 44.2(6)(f), but the court must, prior to making such an order, consider whether a proportionate costs order or a time based costs order would be more appropriate. It may well be a lot easier and less time consuming to make a proportionate costs order based on a percentage of the costs incurred to deal with matters which were then litigated. For more information on the type of costs orders available, see Practice Notes: Issues-based costs orders and Proportionate cost orders • costs assessment—you will need to consider the CPR provisions which apply to costs assessment when looking at how much of the pre-action costs are likely to be recoverable. For information on costs assessments, see Overviews: Costs assessment— general principles, Summary assessment—overview and Detailed Assessment—overview

Impact of pre-action protocols The impact of pre-action protocols on the recovery of costs incurred during the pre-action phase will depend on the version of the protocol or Practice Direction which applied when you were dealing with pre-action matters. On 6 April 2015 a number of the pre-action protocols were updated. The tables below set out the relevant information for both pre and post 6 April 2015 where amended Pre-Action Protocols came into force on 6 April 2015. Note: pre-action protocols for PI and clinical negligence are outside the remit of this Practice Note. Links in red indicate where Lexis®PSL Dispute Resolution subscribers can access further information.

Pre 6 April 2015 Reference

Provision

OLD: Practice Direction—PreAction Conduct

Para 6.2: reasonable and proportionate manner

The parties should act in a reasonable and proportionate manner in all dealings with one another. In particular, the costs incurred in complying should be proportionate to the complexity of the matter and any money at stake. The parties must not use this Practice Direction as a tactical device to secure an unfair advantage for one party or to generate unnecessary costs.

Pre-action protocol for construction and engineering disputes

Para 1.5: proportionality

The Protocol must not be used as a tactical device to secure advantage for one party or to generate unnecessary costs. In lower value claims (such as those likely to proceed in the county court [County Court]), the letter of claim and the response should be simple and the costs of both sides should be kept to a modest level. In all cases the costs incurred at the Protocol stage should be proportionate to the complexity of the case and the amount of money which is at stake. The Protocol does not impose a requirement on the parties to marshal and disclose all the supporting details and evidence that may ultimately be required if the case proceeds to litigation.

Para 4.2.1: objections to jurisdiction

Any failure to take such objection shall not prejudice the defendant’s rights to do so in any subsequent proceedings, but the court may take such failure into account when considering the question of costs.

Para 5.5: disclosure

Where parties are unable to agree how to resolve the dispute they should ‘use best endeavours’ to agree the extent of disclosure of documents with a view to saving costs as well as the conduct of the litigation with the aim of minimising cost and delay

Pre-action protocol for defamation

Paras 2 and 3.7: costs orders

Should a claim proceed to litigation, the extent to which the protocol has been followed both in practice and in spirit by the parties will assist the Court in dealing with liability for costs and making other Orders

Paras 2 and 3.6: proportionality

The protocol aims to keep the costs of resolving disputes subject to this protocol proportionate (para 2) In formulating both the Letter of Claim and Response and in taking any subsequent steps, the parties should act reasonably to keep costs proportionate to the nature and gravity of the case and the stage the complaint has reached (para 3.6)

OLD: Protocol for Judicial Review

Paras 3.1 and 7: ADR

Parties are warned that if the protocol is not followed (including this paragraph) then the Court must have regard to such conduct when determining costs (para 3.1). Where the use of the protocol is appropriate, the court will normally expect all parties to have complied with it and will take into account compliance or non-compliance when giving directions for case management of proceedings or when making orders for costs (para 7).

OLD: Protocol for Housing Disrepair Cases

Para 1: Introduction—failure to comply

The court has the power to order parties who have unreasonably failed to comply with the Protocol to pay costs or be subject to other sanctions.

Para 2: Aims of the protocol

To keep the costs of resolving disputes down.

Para 3.6: Experts—costs

Deals with sorting out the costs associated with experts.

Para 3.7: Costs

If the tenant›s claim is settled without litigation on terms which justify bringing it, the landlord will pay the tenant’s reasonable costs or out of pocket expenses. (See paragraph 4.10 for a definition of ‘costs’ and ‘out of pocket expenses’.)

Paras 4.1 and 4.2: ADR/Scope of protocol

Parties are warned that if the protocol is not followed (including this paragraph) then the Court must have regard to such conduct when determining costs (para 4.1). The need to keep costs down is especially important in claims of lower value (para 4.2).


Should a case come to court, the court will decide whether the parties have acted reasonably, and whether any sanctions, including costs orders, are appropriate.


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Protocol

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Protocol

Reference

Provision

Para 4.6(c): experts

Should a case come to court, it will be for the court to decide whether the parties have acted reasonably and whether the costs of more than one expert should be recoverable.

Para 4.7: time limits

Time limits in the Protocol may be changed by agreement. However, it should always be borne in mind that the court will expect an explanation as to why the Protocol has not been followed or has been varied and breaches of the Protocol may lead to costs or other orders being made by the court.

Para 4.8: limitation period

It will be for the court to decide whether refusal to grant the request is reasonable and whether any sanctions, including costs orders, are appropriate.

OLD: Protocol for Possession Claims based on Rent Arrears

Para 14: compliance with the protocol

If the landlord unreasonably fails to comply with the terms of the protocol, the court may impose an order for costs sanction

OLD: Pre-Action Protocol for Possession Claims Based on Mortgage or Home Purchase Plan Arrears in Respect of Residential Property

There are no provisions in relation to costs

Pre-action Protocol for Claims for Damages in Relation to the Physical State of Commercial Property at Termination of a Tenancy (the ‘Dilapidations Protocol’)

Para 8.1: ADR

Parties are warned that the court will take into account the extent of the parties’ compliance with this protocol when making orders about who should pay costs (see CPR rule 44.3(4) and (5)(a)).

OLD: Protocol for professional negligence

Para 2.2: objectives

The aim of the protocol includes the requirement to ‘avoid unnecessary expense and keep down costs of resolving the dispute’ .

Para 9: ADR.

ADR is encouraged and if not pursued then if considered to be unreasonable by the court, the court may order that parti to pay additional costs. Note: from 6 April 2015 the following pre-action protocols were updated: • Judicial Review • Housing Disrepair Cases • Possession Claims by Social Landlords (previously the rent arrears protocol) • Possession Claims based on Mortgage and Home Purchase Plan Arrears in Respect of Residential Property • Professional Negligence Claims The Practice Direction on pre-action conduct was also replaced by the (renamed) Practice Direction Pre-Action Conduct and Protocols which provides a more succinct and less prescriptive code of pre-action conduct to be followed in all cases for which no specific protocol applies.


6 April 2015 onwards Reference

Provision

Practice Direction Pre-Action Conduct and Protocols

Para 6.2: reasonable and proportionate manner

The parties should act in a reasonable and proportionate manner in all dealings with one another. In particular, the costs incurred in complying should be proportionate to the complexity of the matter and any money at stake. The parties must not use this Practice Direction as a tactical device to secure an unfair advantage for one party or to generate unnecessary costs.

Pre-action protocol for construction and engineering disputes

Para 1.5: proportionality

The Protocol must not be used as a tactical device to secure advantage for one party or to generate unnecessary costs. In lower value claims (such as those likely to proceed in the county court [County Court]), the letter of claim and the response should be simple and the costs of both sides should be kept to a modest level. In all cases the costs incurred at the Protocol stage should be proportionate to the complexity of the case and the amount of money which is at stake. The Protocol does not impose a requirement on the parties to marshal and disclose all the supporting details and evidence that may ultimately be required if the case proceeds to litigation.

Para 4.2.1: objections to jurisdiction

Any failure to take such objection shall not prejudice the defendant’s rights to do so in any subsequent proceedings, but the court may take such failure into account when considering the question of costs.


Where parties are unable to agree how to resolve the dispute they should ‘use best endeavours’ to agree the extent of disclosure of documents with a view to saving costs as well as the conduct of the litigation with the aim of minimising cost and delay

Pre-action protocol for defamation

Paras 2 and 3.7: costs orders

Should a claim proceed to litigation, the extent to which the protocol has been followed both in practice and in spirit by the parties will assist the Court in dealing with liability for costs and making other Orders

Paras 2 and 3.6: proportionality

The protocol aims to keep the costs of resolving disputes subject to this protocol proportionate (para 2) In formulating both the Letter of Claim and Response and in taking any subsequent steps, the parties should act reasonably to keep costs proportionate to the nature and gravity of the case and the stage the complaint has reached (para 3.6)

Pre-action Protocol for Judicial Review

Paras 7 and 8: ADR

Where the use of the protocol is appropriate, the court will normally expect all parties to have complied with it and will take into account compliance or non-compliance when giving directions for case management of proceedings or when making orders for costs (para 7). Parties should consider if ADR would be more suitable than litigation. Parties are warned that if the protocol is not followed (including the suggestion to consider ADR) then the court must have regard to such conduct when determining costs (para 8).

Pre-action Protocol for Housing Disrepair Cases

Para 1.3: Introduction

The court has the power to order parties who have unreasonably failed to comply with the Protocol to pay costs or be subject to other sanctions.

Para 2.1(e): Aims of the protocol

To keep the costs of resolving disputes down.

Para 4: ADR

ADR is encouraged. Parties should be aware that the court will take into account the extent of the parties’ compliance with this Protocol when making orders about who should pay costs

Para 7.3(b): Experts

Should a case come before the court, it will be for the court to decide whether the parties have acted reasonably in instructing separate experts and whether the costs of more than one expert should be recoverable

Para 9(b): Time Limits

Time limits in the Protocol may be changed by agreement. However, it should always be borne in mind that the court will expect an explanation as to why the Protocol has not been followed or has been varied and breaches of the Protocol may lead to costs or other orders being made by the court.

Para 11: Costs

If the tenant’s claim is settled without litigation on terms which justify bringing it, the landlord will pay the tenant’s reasonable costs


LexisPSL

Protocol

LexisPSL

Protocol

Reference

Provision

Protocol for Possession Claims by Social Landlords (replacing the earlier Rent Arrears protocol)

Para 2.13: compliance with the protocol

If the landlord unreasonably fails to comply with the terms of the protocol, the court may impose an order for costs sanction

Protocol for Possession Claims Based on Mortgage or Home Purchase Plan Arrears in Respect of Residential Property

There are no provisions in relation to costs

Pre-action Protocol for Claims for Damages in Relation to the Physical State of Commercial Property at Termination of a Tenancy (the ‘Dilapidations Protocol’)

Para 8.1: ADR

Parties are warned that the court will take into account the extent of the parties’ compliance with this protocol when making orders about who should pay costs (see CPR rule 44.3(4) and (5)(a)).

Pre-action Protocol for Professional Negligence

Para 2.2(d): objectives

The aim of the protocol includes the requirement to ‘avoid unnecessary expense and keep down costs of resolving the dispute’ .

Para 12: ADR.

ADR is encouraged and if not pursued then if considered to be unreasonable by the court, the court may order that parti to pay additional costs.

Impact of court guides Court guide

Provision and provision heading

Impact

Admiralty and Commercial Court Guide

There is no specific provision as to recovery of pre-action costs.

Chancery Guide


Mercantile Court Guide


The Intellectual Property Enterprise Court Guide


The Patents Court Guide


Queen’s Bench Guide


The Technology and Construction Court Guide

2.7—Costs of compliance with the Protocol (the Pre-action Protocol for Construction and Engineering disputes)

2.7.1: if compliance with the protocol result in settlement the costs incurred are not recoverable from the paying party unless specifically provided for in the settlement agreement. 2.7.2: if compliance does not result in a settlement then the costs of the complying are not recoverable as costs unless: • the costs fall within the principle set out in Re Gibson’s Settlement Trust [1981] Ch 179, or • the steps taken in compliance with the Protocol can properly be attributable to the conduct of the action: see the judgment of Coulson J in Roundstone Nurseries v Stephenson [2009] EWHC 1431 (TCC) where he held at [48]: ‹... as a matter of principle, it seems to me that costs incurred during the Pre-Action Protocol process may, in principle, be recoverable as costs incidental to the litigation›: see McGlinn v Waltham Contractors (No 1) [2005] EWHC 1419 (TCC), [2005] 3 All ER 1126.

The Senior Courts Costs Office Guide

2.17: Costs in relation to pre-commencement disclosure and orders for disclosure against a non party

Sections 33 and 34 of the Senior Courts Act 1981 and Sections 52 and 53 of the County Courts Act 1984 give the court powers, exercisable before commencement of proceedings, in relation to disclosure, and the power to make an order against a non party for disclosure of documents and inspection of property. The general rule is that the court will award the person against whom the order is sought, his costs of the application and of complying with any order which is made. If however that party has unreasonably opposed the application or failed to comply with any relevant pre-action protocol the court may well make a different order (CPR 46.1).


Pre-action Part 36 offers Conflicting case law had made this a difficult area for practitioners in determining whether costs incurred pre-action were recoverable under a Part 36 offer when that offer was accepted pre-action. The Court of Appeal decision in Solomon provided confirmation that the claimant is entitled to recover its pre-action costs but only to the extent that such costs would have been recoverable if proceedings had been issued. For a detailed analysis of this decision, see: Court of Appeal: CPR 36 cost consequences apply to offers made and accepted before proceedings commenced (Solomon v Cromwell).

Note: Part 36 offers made on/after 6 April 2015 will be subject to the Part 36 which comes into force as part of the April 2015 CPR changes. Those provisions make it clear that, where the Part 36 costs consequences of acceptance/non-acceptance apply, such costs include any recoverable pre-action costs (CPR 36.13(1) and CPR 36.17(3)(a) and CPR 36.17(4)(b)). For detailed information, see Practice Note: What are Part 36 offers and why make them?.

Specific costs recovery—pre-action disclosure An applicant making a pre-action disclosure application will generally not be able to recover their costs. The general rule is that the respondent will be entitled to its costs of complying with a pre-action disclosure order. Therefore the applicant should give careful consideration to the costs implications of making such an application. Even if the application were to succeed would the costs of obtaining the various documents pre-action be worth it?

• the extent to which it was reasonable for the respondent to oppose the application. It is usually reasonable for a respondent to make the applicant satisfy the court that an order for pre-action disclosure is justified (SES)  • compliance with any pre-action protocol, and • whether the pre-action disclosure application was reasonable and necessary at the time (Connaughton)  In Cattles and Moduleco the court considered the reasonableness of the parties over a period of time and in both cases the respondents were made to bear costs for behaving unreasonably. What is noticeable from these cases is that whilst it might be reasonable to initially refuse to comply, that continued stance may subsequently be considered to be unreasonable if circumstances change. Alternatively, if you are acting for a party seeking disclosure facing an unreasonable respondent consider whether their conduct is so unreasonable as to justify making an application for costs. To ensure that the position you adopt on behalf of your client in dealing with a request for pre-action disclosure is reasonable you should: • consider the request for disclosure very carefully. If you decide not to provide the information consider what the reasons for that decision are, and whether there are ways of overcoming the problems identified • consider whether there are any limited categories of documents that can be provided and, if so, provide them • explain you need further time to comply with the request if a time extension is necessary • check you are complying with any relevant protocols

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LexisPSL

For detailed information on costs recoverability under a Part 36 offer accepted before proceedings, see Practice Note: Part 36 offers accepted before proceedings start—costs recovery.

However, the court can exercise its discretion to make a different order. In doing so, it will take into account all the circumstances including:

LexisPSL

• bear in mind that the reasonable costs of complying (ie providing the disclosure) will be paid for by the party seeking the disclosure • advise your client of the cost consequences of failing to act reasonably in view of Cattles and Moduleco • review the decision with the client regularly and particularly as the situation changes—what might seem reasonable at one stage may look very different later on if one of the party’s position has changed

Specific costs recovery—Norwich Pharmacal Orders A Norwich Pharmacal order (NPO) is an order for the disclosure of documents or information by the respondent to the applicant where: • the applicant is the claimant in the proceedings or intended proceedings, and • the respondent is a third party to those proceedings or intended proceedings who the applicant believes has information which will assist. Whilst the respondent is not likely to be a party to the potential proceedings, the respondent is placed under a duty to identify the wrongdoer so a claim can be brought following their identity being revealed The general rule is that the applicant/claimant pays the respondent’s reasonable costs of complying with the terms of the NPO (Totalise). This is on the basis that the respondent is, in the main, simply caught up in the wrong doing and will not be a party to the action. However, there may be circumstances in which it is appropriate for the court to depart from that normal order. This can be either at the time the order is made or after purported compliance and the court will order the

respondent to bear all or some of their own costs or even to pay some or all of the claimant’s costs. In JSC BTA Bank v Ablyazov, the High Court stated that these circumstances include where, in the court’s view, the respondent has: • supported or is implicated in the defendant’s wrongdoing (which does not have to be finally determined at trial and the claimant does not have to show that it would succeed in a claim against the respondent at trial), or • sought to obstruct justice For more information, see: Norwich Pharmacal orders: when will a respondent bear the costs of compliance? (JSC BTA Bank v Ablyazov & Ors).

Specific costs recovery—mediation Mediation or any ADR process which takes place prior to the commencement of proceedings will generally not be regarded by the courts as costs of or incidental to the litigation. Parties entering into a mediation at this stage will often agree that each party will bear their own costs such that a party cannot subsequently seek to recover their costs in the proceedings. In these circumstances the costs of a pre-action mediation will not be recoverable, see Lobster Group.



New Bill of Costs Consultation Janna Purdie, Solicitor in the LexisPSL Dispute Resolution team

This is a blog post which was posted on 3 August 2015, inviting our readers and subscibers to take part in the consultation and included links to all the documents required.

The Committee are inviting comments/suggestions on the draft new bill of costs by 18 September 2015. It is planned that there will be a Practice Direction in force from the start of October 2015 which will enable parties to use the new bill of costs in cases in the SCCO instead of the existing model (although at this stage there is no requirement to use the new bill, only that it is voluntary and you would not be in breach of the rules if you adopted it). The longer term plan at present is that there will be a pilot in all SSCO cases where there costs order giving rise to the right to costs has been made on or after 1st April 2016 where the new bill of costs will be the recommended form of bill in place of the existing model. It is requested that any such comments or suggestions be emailed to both [email protected] and david.nelson@ pathfinderconsulting.com by 4pm on 18 September 2015.

The Committee note ‘Please do not expect an instant response from us as we will be collating comments together and considering them as a whole. But we value your help in hopefully improving the current draft of the new bill. Please also read the guidance documents carefully before you email as some of the answers to queries may well be in them.’ The relevant documents for the consultation are available here (once these open please click on the download icon at the top of your screen). If you have any difficulty accessing the spreadsheets, please email [email protected] and copies can be emailed to you. 2015-07-31 BoC Final (Blank Template).xlsx 2015-07-31 BoC Final (Example Data).xlsx 2015-07-31 BoC Final (Print Version) (Example Data).xlsx 2015-07-31 BoC Guidance Document (inc Appendices).doc



Lexis DR Blog PSL

This is your opportunity to provide feedback on the new Bill of Costs format. The Committee appointed to make recommendations on a new bill of costs pursuant to the Jackson Report, have provided me with the draft new bill of costs and guidance documents for consultation. They are looking for people and organisations with a specialist expertise in this area, and/or who have a particular interest in the J-Codes and the new bill of costs project to take part in a consultation process.

Cost Budgeting Calculator

LexisPSL Cost Budgeting Calculator ‘Costs budgeting’ was introduced by the Jackson reforms on 1 April 2013. This is an onerous and time consuming task for solicitors because firms are required to submit, early in proceedings, a budget which costs out the process until trial and beyond. This is not a skill with which many law firms are familiar. Furthermore, Precedent H is very detailed and requires the budget to be broken down by fee earner, expert and counsel across many different stages in the proceedings. The consequences of getting the budget wrong and not informing the court are severe; case law has shown that there is a real risk that, unchecked and unrevised, parties’ recoverable costs at the end of the case may be limited to those set out in the budget.

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Assistance — assistance in completing Precedent H is provided with buttons which provide a short comment together with hyperlinks through to LexisPSL DR content to provide deeper level assistance eg though to a case study Precedent H, checklists on completing Precedent H etc

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Keeping track — in-built notifications ensure that users are reminded to review the costs budget at set intervals through the life of the proceedings enabling users to determine whether the costs budget needs to be revised at any stage. The calculator automatically provides percentage tickers setting out the extent to which a case is running under or over budget

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Comparing costs budgets — opening a new case requires the input of relevant case details, values, court details etc which are designed to enable searches across all open and closed cases by any field or custom tag. This enables quick and efficient access to information from other cases which may assist in the production of future cost budgets

LexisPSL’s ‘costs budgeting calculator’ simplifies and speeds up the process of completing ‘Precedent H’ and also allows users to search over previous budgets completed by their firm to find similar budgets for future cases. Highlights of the calculator include: •

Preparing Precedent H — open a case and use intuitive pull out and drop down menus to input costs, assumptions and contingencies to create Precedent H. Save even more time by searching across previously completed budgets prepared by the firm; by tag, fee earner, judge or location—see comparing costs budgets below

Try the Costs Budgeting Calculator for yourself. Take a free trial at lexisnexis.co.uk/DRCostsMag15/Blog


CPR changes—October 2015 Janna Purdie, Solicitor in the LexisPSL Dispute Resolution team

CPR changes—October 2015

Service out of the jurisdiction—PD 6B

The changes are set out in the Civil Procedure (Amendments No. 4) Rules 2015, SI 2015/1569 (L20) as well as the 81st Update PD Making Document.

Service out of the jurisdiction—changes have been made to Practice Direction 6B to reflect the changes to the jurisdictional service gateways agreed by the CPR Committee, in their meeting of 12 June 2015. For details of the changes, as set out in that meeting and the background to them, see Practice Note: Forthcoming changes to gateways for permission to serve out of the jurisdiction.

81st Update PD Making Document

Early Neutral Evaluation—rule 3.1 Amendment of rule 3.1 dealing with court’s general powers of management to make it clear that the court’s powers include hearing an Early Neutral Evaluation. The rationale for the change is set out in the minutes of the CPR Committee meeting held on 12 June 2015.

Litigants in person—new rule 3.1A Insertion of a new rule 3.1A making provision for the way in which the court is to approach case management in a case where at least one of the parties is unrepresented. For detailed information as to the implementation of the new rule, see: Forthcoming changes to case management powers when dealing with litigants in person.

The changes as set out in the 81st Update PD Making document are as follows: New: gateway (4A)—same or closely connected facts This will be a further general ground in conjunction with gateways (1)–(4): ‘(4A) A claim is made against the defendant in reliance on one or more of paragraphs (2), (6) to (16), (19) or (21) and a further claim is made against the same defendant which arises out of the same or closely connected facts.’ Expansion: gateway (9)—tort claims It will be expanded to read as follows: ‘(9) A claim is made in tort where –

Access to court documents—Part 5 Insertion in Part 5 of a cross-reference to provisions which disapply, or apply with modifications, provisions in that Part about such access.

(a) d amage was sustained, or will be sustained, within the jurisdiction; or (b) d amage which has been or will be sustained results from an act committed, or likely to be committed, within the jurisdiction’ 25


LexisPSL

This Practice Note sets out the upcoming CPR changes as set out in Civil Procedure (Amendments No. 4) Rules 2015, SI 2015/1569 (L20) and the 81st Update PD Making Document. The changes reflect the need for better case management of cases involving litigants in person, emphasise the use of Early Neutral Evaluation, address access to court documents, require claimants to file particulars of claim, make changes to the commencement of detailed assessment and cover the creation of the new Financial List. All the new provisions come into force on Thursday 1 October 2015, with the exception of the County Court at Central London Pilot Scheme which comes into force on Tuesday 29 September, and planning changes for which there is currently no in force date.

Expansion: gateway (11)—claims about property within the jurisdiction The existing gateway is to be extended with the addition of the wording in italics: ‘The subject matter of the claim relates wholly or principally to property within the jurisdiction, provided that nothing under this paragraph shall render justiciable the title to or the right to possession of immovable property outside England and Wales.’ Expansion: gateway (13)—administration of a person’s estate Gateway (13) is to be expanded with the wording in italics: ‘A claim is made for any remedy which might be obtained in proceedings for the administration of the estate of a person who died domiciled within the jurisdiction or whose estate includes assets within the jurisdiction.’ Expansion: gateway (15)—constructive trusts This has been expanded to cover trustees of a resulting trust through the additional wording in italics: ‘A claim is made against the defendant as constructive trustee, or as trustee of a resulting trust, where the claim arises out of acts committed or events occurring within the jurisdiction or relates to assets within the jurisdiction.’ New: gateway (17)—restitution claims This new gateway in effect repeats gateway 16 but adds in new provisions to address restitution claims. ‘(16) A claim is made for restitution where— (a) t he defendant’s alleged liability arises out of acts committed within the jurisdiction; or (b) the enrichment is obtained within the jurisdiction; or (c) the claim is governed by the law of England and Wales.’ New: gateway (21)—claims for breach of confidence or misuse of private information The new gateway is: ‘Claims for breach of confidence or misuse of private information ‘(21) A claim is made for breach of confidence or misuse of confidential information where— (a) d etriment was suffered, or will be suffered, within the jurisdiction; or (b) d etriment which has been, or will be, suffered results from an act committed, or likely to be committed, within the jurisdiction.’

23.3 The court must when it issues the claim form fix a date for hearing of the application for a TRO, which must unless the court orders otherwise be no later than 21 days after the date of issue. 23.4 In accordance with regulation 6 of the TRO Regulations, if a hearing is held, it must be held in private unless the court orders otherwise. 23.5 Rule 44.2(2)(a) (the general rule on costs) does not apply to proceedings to which this paragraph applies. (Regulation 7 of the TRO Regulations makes specific provision for costs in relation to an application for a TRO.) 23.6 Rule 5.4B (supply of court documents to a party) applies subject to any order made by the court under regulation 5(2) of the TRO Regulations. 23.7 Unless the court orders otherwise, rule 5.4C (supply of court documents to a non-party) does not apply to any proceedings to which this paragraph applies.’

Planning statutory reviews—PD 8C and Part 52 A new Practice Direction 8C is added: Practice Direction 8C—Alternative Procedure for Statutory Review of Certain Planning Matters. This is set out in Schedule 1 in the 81st Update PD Making Document. The SI covers amendment to Part 52 by the insertion of a new rule 52.15B covering appeals of planning statutory reviews. The changes require s 91 of the Criminal Justice and Courts Act 2015 to come into force. There is currently no date for the initial commencement of this section, which provides that the procedure for certain planning challenges will be amended as set out in Sch 16 of the Act.

Transfer—PD 30 There are amendments to existing provisions dealing with a transfer from the Competition Appeal Tribunal (CAT) to the High Court under section 16(4) of the Enterprise Act 2002 as well as a new section from para 8.10 to deal with transfer the other way ie from the High Court to the CAT.

CAT to High Court Paragraph 8.4 is to be substituted with wording which requires the court to consider all the circumstances of the case including the wishes of the parties. This replaces the three previous specific considerations and so widens the issues which the court will need to take into account.

Filing particulars of claim—rule 7.4

Paragraph 8.5 which sets out what happens when the court orders a transfer under paragraph 8.3 will now provide that the list ‘must’ be done immediately. Previously the provision stated that the could ‘will’.

Rule 7.4 is to be amended to ensure that the claimant not only serves particulars of claim on the defendant, but also files them.

Paragraph 8.6 is to be changed to specifically state that Part 52 will apply to an appeal against a transfer order made under para 8.3

Proceedings under The Telecommunications Restriction Orders (Custodial Institutions) (England and Wales) Regulations 2015—Part 8

High Court to CAT

This is updated to include Proceedings under The Telecommunications Restriction Orders (Custodial Institutions) (England and Wales) Regulations 2015. The table below para 9.4 is updated with an entry for the regulations. In addition, a new para 23 is added to dealing with proceedings under the regulations. This provides: ‘23.1 This paragraph applies to proceedings under The Telecommunications Restriction Orders (Custodial Institutions) (England and Wales) Regulations 2015 (“the TRO Regulations”). 23.2 An application under regulation 3(1) for a Telecommunications Restriction Order (“TRO”) must be made at the Clerkenwell and Shoreditch County Court hearing centre.

Paragraphs 8.10 to 8.13 are new paragraphs to deal specifically with the transfer from the High Court to CAT under section 16(1) of the Enterprise Act 2002. The new provisions are: ‘The High Court may make an order under the Section 16 Enterprise Act 2002 Regulations 2015, on its own initiative or on application by the claimant or defendant, transferring any part of the proceedings before it, which relates to an infringement issue (as defined in section 16(6) of the 2002 Act), to the CAT. 8.11 When deciding whether to make an order under the Section 16 Enterprise Act 2002 Regulations 2015, the court must consider all the circumstances of the case including the wishes of the parties. 8.12 Where the court orders a transfer under the Section 16 Enterprise Act 2002 Regulations 2015, it must immediately– (1) send to the CAT – (a) a notice of the transfer containing the name of the case; and

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(b) all papers relating to the case; and (2) notify the parties of the transfer.

8.13 Part 52 applies to an appeal against a transfer order made under the Section 16 Enterprise Act 2002 Regulations 2015.’

Detailed assessment—rule 47.6 and PD 47 A new provision is added such that in cases in which a costs management order has been made, a breakdown of the costs for each phase of the proceedings must be provided (rule 7.6(1)(c)). New provisions in Practice Direction 47 are added to reflect this change both at the time of commencement of the detailed assessment proceedings with a new para 5.2(f) as well as at the time of the detailed assessment hearing at para 13.2(l)(v). The new wording for both provisions is: ‘if a costs management order has been made, a breakdown of the costs claimed for each phase of the proceedings.’ A new para 5.1A is added to PD 47 to provide that: ‘Precedent Q in the Schedule of Costs Precedents annexed to this Practice Direction is a model form of breakdown of the costs claimed for each phase of the proceedings.’ Precedent Q—Model form of breakdown of the costs claimed for each phase of the proceedings. The County Court at Central London multi track pilot scheme—PD 51I Practice Direction 51I is amended to extend the length of the pilot scheme for a further year to 30 September 2016.

Appeals to the Court of Appeal—PD 52C An error is corrected in this PD such that para 28(1)(c) is amended to refer to para 3(3)(a) to (e) and (g) and not para 4(3)(a) to (e) and (g).

Planning court claims—PD 54E A new Practice Direction is to be substituted. This is set out in Schedule 5 of the 81st Update PD Making Document.

New Financial List—rule 63A, PD 63AA and court forms New rule 63A A new Part 63A has been introduced to provide rules and a practice direction for the new specialist list called the Financial List. This will handle the more complex and important financial markets cases. For detailed information, see: Green light for Financial List.

New PD 63AA A new Practice Direction is to be substituted. This is set out in Schedule 6 of the 81st Update PD Making Document.

New court forms New forms will be available for use in the Financial List and they will be available in LexisPSL Dispute Resolution. The new forms are:

Form number

Name

N1(CCFL)

Claim form (Part 7 Commercial Court Financial List)

N1(CHFL)

Claim form (Part 7, Chancery Division Financial List)

N1C(CCCHFL)

Notes for the defendant replying to a Part 7 claim form Financial List)

N9(CCFL)

Acknowledgment of service (Part 7, Commercial Court Financial)

N9(CHFL)

Acknowledgment of service (Part 7 Chancery Division Financial List)

Annex Precedent AA New model form of costs.pdf

N208(CCFL)

Claim form (Part 8, Commercial Court Financial List)

The spreadsheet for the New Bill of Costs is available.

N208(CHFL)


Copy of Practice Direction 51L New Bill of Costs Pilot Excel version of precedent.xlsx

N210(CCFL)

Acknowledgment of service (Part 8 Commercial Court Financial List)

Financial Markets Test Case Scheme—PD 51M

N210(CHFL)

Acknowledgment of service (Part 8, Chancery Division Financial List)

N211(CCFL)

Claim form (Part 20, Commercial Court Financial List)

N211(CHFL)


N213(CCFL)

Acknowledgment of service (Part 20, Commercial Court Financial List)

N213(CHFL)

Acknowledgment of service (Part 20, Chancery Division Financial List)

N244(CCFL)

Application Notice (Commercial Court Financial List)

N244(CHFL)

Application Notice (Chancery Division Financial List)

N265(CCFL)

Standard Disclosure (Commercial Court Financial List)

N265(CHFL)

Standard Disclosure (Chancery Division Financial List)

New Bill of costs Pilot Scheme—PD 51L A new pilot scheme is set out in Schedule 2 to the 81st PD Making Document. This will be in operation from 1 October 2015 to the 1 April 2016 and will apply to detailed assessment proceedings in the SCCO where notice of commencement is served on or after 1 October 2015. If the party commencing the detailed assessment uses the New Bill of Costs then the detailed assessment proceedings will be treated as being under the pilot scheme and the provisions in this practice direction will apply. It is therefore voluntary as the commencement could use the old Bill of Costs. The new model form Bill of costs is available.

A new pilot scheme is set out in Schedule 3 to the 81st PD Making Document. This pilot scheme will operate from 1 October 2015 for two years. It will operate in the new Financial List in the Chancery Division and the Commercial Court and apply to claims started in or after 1 October 2015. The Pilot Scheme will only apply to a qualifying claim ie a claim started in the Financial List which raises issues of general importance to the financial markets in relation to which immediately relevant authoritative English law guidance is needed.

Shorter and flexible trials pilot schemes—PD 51N A new pilot scheme is set out in Schedule 4 to the 81st PD Making Document. This pilot scheme will operate from 1 October 2015 for two years in courts situated in the Royal Courts of Justice, Rolls Building, Fetter Lane, London that is the Chancery Division (including the Patents Court and the Companies Court), the Commercial Court, the London Mercantile Court and the Technology and Construction Court (‘the Rolls Building courts’). It will apply to cases issued on or after 1 October 2015. Links in red indicate where Lexis®PSL Dispute Resolution subscribers can access further information.

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LexisPSL

How is interest on a settlement sum dealt with where a Part 36 offer is accepted after the Relevant Period has ended? Ruth Pratt, Solicitor in the LexisPSL Dispute Resolution team

Q&As are high level summaries of real life problems or issues that our customers face and are sent to us via the LexisAsk service for LexisPSL subscribers. The Q&As provide a quick overview of the relevant key considerations, allowing either a quick refresher or a starting point for deeper research. Note: we have based this answer on the assumption that the relevant offer was made on or after 6 April 2015 and, therefore, that the revised Part 36 applies. We have Practice Notes on the position pre and post 6 April 2015 (and transition provisions) in our subtopic: Part 36 offers. A Part 36 offer to pay or to accept a sum of money in settlement of the claim will be treated as inclusive of all interest until the date on which the Relevant Period expires or, if the offer was made less than 21 days before the start of the trial, a date 21 days after the offer was made (CPR 36.5(4))). There is no requirement for a Part 36 offer to state this, although to do so adds clarity (Procter & Gamble Co v SCA [2012] EWHC 2839 (Ch)). See Practice Note: How to make a valid Part 36 offer. 28

Note that where a Part 36 offer is accepted (whether before or after expiry of the Relevant Period), CPR 36.13 and CPR 36.14 do not make provision for what is to happen as regards interest on the accepted offer sum. Given this and that CPR 36.5(4) only provides for the Part 36 offer on a money sum to be deemed to include interest up to expiry of the Relevant Period then it would appear to be the case that a Part 36 offer which is accepted after the expiry of the Relevant Period will only automatically include interest from expiry of the Relevant Period up to the date of acceptance if the offer expressly sets out that interest will continue to run after expiry of the Relevant Period, as is suggested in the drafting notes to our precedent: Claimant’s Part 36 offer. The position as regards interest where a claimant’s Part 36 offer is not accepted and is, essentially, beaten at trial is provided for under CPR 36.17(4)(a) but, obviously, this is a reference to interest payable on the judgment amount (not the lower, settlement offer amount). Links in red indicate where Lexis®PSL Dispute Resolution subscribers can access further information.

What a pain Jon Lord, council member of the Association of Costs Lawyers

Legal reform

Latest proposal

Costs have been a major driver in legal reform for at least the last 20 years. The Woolf reforms, instigated by the Lord Mackay, Lord Chancellor in 1994, and the shift from legal aid to conditional fee agreements were driven by the need to reduce litigation costs and the government’s budget. Legal aid remained for some clinical negligence claims but has gradually been eroded.

So what of the latest proposal to fix costs in claims up to £100,000? Personally speaking, I struggle with the concept of fixing costs in fast-track personal injury claims, and fail to see how it is possible in multi-track claims generally, let alone clinical negligence claims up to £100,000, where the average costs paid to claimant lawyers is nearly 52% of damages.

Those reforms backfired in the clinical negligence arena, where notoriously difficult-to-prove claims against hospitals have routinely attracted maximum 100% success fees, almost doubling the costs in successful claims. Self-insuring after-the-event (ATE) insurance policies gave many claimants a “free shot” at a claim, so claim numbers increased.

There has been mention of the recoverable cost being a percentage of damages, but such is the disparity in claims types, it is difficult to see how that method can fairly be applied. We are in the dark as to the detail and potential “escape” provisions, but there must be concern over how a claim for bereavement damages will be dealt with where the claim would have been significantly over £100,000 had the claimant survived and the issues of liability and causation are the same.

Budgetary problems The NHS budget creaked under the strain and the government had no hesitation in adopting Lord Justice Jackson’s recommendations that recoverability success fees and ATE premiums should be abolished, although the latter have remained with limited effect in clinical negligence claims. Recently published NHS Litigation Authority (NHSLA) annual accounts figures show that in 2014/15, £291m was paid out in claimant legal costs, a 12% increase on the year before. The fall in spending on defence legal costs—from £103m to £92.5m—does not make up for it.

NHSLA

The budgetary problem has been compounded by an increase in the number of clinical and non-clinical claims over the last few years, although they did level out in 2014/15. Many blame the increase on the introduction of fixed costs in other areas of personal injury litigation, which has led to increasing numbers of law firms willing to take on clinical negligence work in pursuit of more profitable work. The NHSLA points to a greater propensity for individuals to bring claims but also cites an increase in the number of patients being treated by the NHS, and expects to spend an additional £300m on claims in the coming year.

The NHS and legal systems are desperate for investment. The longerterm aim must surely be that “prevention is better than cure” and the best way to save money on claims is to reduce the number of them, regardless of cost, but if control is to be exerted through litigation then there must be proper investment in court resources to enable cases to be dealt with efficiently and at proportionate cost to the parties.

Multi-track litigation costs In addition to the end of recoverability of additional liabilities, costs management has been designed to keep costs in multi-track litigation proportionate. It is too early to say what the longer-term effect of budgeting and management will have in clinical negligence claims, but the situation will not be helped by the decision to disapply costs budgeting in such cases in the High Court between October 2015 and January 2016 while the Queen’s Bench Division attempts to clear a backlog of work. Meanwhile, court fees continue to increase and the recent announcement regarding court closures will only serve to increase the necessary costs of many litigants.

The NHSLA was set up in 2005 to “robustly defend claims”. Notwithstanding the fall in defence legal costs, it appears clear that this mantra still applies. The NHSLA states in its latest annual report that it has contested more claims to final determination in the last year. Fixed recoverable costs in cases up to £100,000 may further encourage robust defences as the NHSLA attempts to persuade litigants that claims are not worth pursuing. Access to justice for those who most need it will be threatened if any such plan is not properly thought out.

My local hospital is losing frontline services and my local court is earmarked for closure. I fear that resultant increased pressure elsewhere and fewer resources will mean that sticking plaster manufacturers will continue to prosper for some time to come and claim costs will remain high. Published in the New Law Journal on 18 August 2015. New Law Journal, the leading weekly legal magazine, keeps you uptodate with news and change across case law, legislation and changes in procedure across core civil practice areas. Key developments are presented in an easily digestible format, together with analysis of their implications and practical advice for busy practitioners. Subscribers receive 48 issues per year, plus unlimited access to exclusive online and archived content at www.newlawjournal.co.uk.

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New Law Journal

Costs in clinical negligence claims continue to be as much of a drain on the minds of politicians as they are on the NHS budget. The recent proposal to fix costs in claims valued up to £100,000 is the latest example in a long line of attempts to close the gaping hole in the bottom of the public purse. Is it merely another sticking plaster or a lasting cure to the public expenditure problem?

Rising pressure

New Law Journal

Nichola Evans, NLJ columnist & partner, Browne Jacobson

Nichola Evans raises questions over the court fee increase consultation Another day, another consultation from the Ministry of Justice. Hang on—this one seems to be about an increase to court fees: didn’t we have one of those only a few months back? So we’re about to see a doubling of the fee for issuing a consent application and an increase from £155 to £255 for a contested application. In addition there will be a consultation as to whether there ought to be an increase in the maximum fee for the issue of money claims from £10,000 to £20,000 and a 10% increase in other civil court fees. Also there are proposed increases to fees for possession and divorce proceedings.

Piecemeal review In other news, we read that the Lord Chief Justice and the Master of the Rolls have appointed Lord Justice Briggs to conduct an urgent review of the court system to help “ensure the reform programme designs a service which makes best use of the large capital investment proposed and provides a modern, efficient and accessible civil dispute resolution service for all”. This feels a bit piecemeal especially when one considers that we also had the Civil Justice Committee report on online dispute resolution in February this year. In addition, does this not appear to be putting the horse before the cart? If it is accepted (and I am not suggesting that I am in agreement with this) that the courts should be self-funding, would it not be a better course to review the service first, make the amendments as necessary, and then cost out the system? Also, if online dispute resolution is widely introduced on low value claims, will this also not only reduce the cost of proceedings? If the current plans are proceeded with, and then subsequently reforms are made to the system to reduce running costs, will we look at a reduction in court fees? “Is there not a danger that high quality litigation may just simply disappear from these shores completely?”

Justification? If we look at the arguments being deployed in favour of the increase we see a justification that personal injury and clinical negligence claimants will not be expected to meet any increase in fees but that those “who can afford to—such as wealthy individuals or large corporations making very large money claims—will make a bigger contribution”. However do these arguments work? Is there not a danger that high quality litigation may just simply disappear from these shores completely? This issue has already been flagged up in the context of the Commercial Court where the statistics for 2013/4 show that a foreign party was involved in 81% of cases and in 48% of cases all parties were from outside the UK. Other jurisdictions are making a competitive pitch for 30

international work, most notably Singapore, New York, Dubai and Qatar. In 2014 Mr Justice Flaux said: “People would stand possibly slightly higher issuing fees, but any other sort of fee system would be potentially worrying...any significant change could be seized on by competitors as an indication that our system is too expensive.”

ADR arises Other issues also arise. Arbitration will be seen as an alternative route to take. Will we see more business disputes driven towards arbitration going forward? I suspect that we will as the cost, particularly on smaller claims, ought to be far less than taking court proceedings. Going forward I foresee business contracts containing arbitration clauses so that arbitration becomes the forum of choice for business disputes. In addition this will increase the number of litigants who refer cases at a reasonably early stage to alternative dispute resolution (ADR), especially mediation. Why as a claimant would you think about incurring the cost of issuing proceedings when there is a route to settlement? As a defendant why would you not look at a settlement proposal that does not include court fees? I can foresee that if there is a substantial court fees hike then litigation will become far more front loaded than it already is. There is already a huge range of ADR options available. Mediation has become a far more useful tool with parties able to choose not only the traditional type of mediation but also telephone mediations and mediations that are guillotined in time.

Mass exodus If we see a vast reduction in cases being litigated because there is an exodus to say the courts of New York or Dubai, an increase in the numbers of cases proceeding to arbitration, cases being settled because of an increased use of ADR or perhaps an increase in court fees reducing the number of claims being issued, what then? A further inflation-busting increase in court fees? Further court closures because courts are being under-utilised? Effectively physical courts only existing in large cities? Is it not time to review the entire court system properly and make it fit for purpose for the 21st century focusing on the complete necessity of ensuring that there is access to justice for all? Published in the New Law Journal on 13 August 2015.

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LexisPSL Dispute Resolution provides a range of procedural and substantive guidance set out in topics which reflect your thought process, both in terms of the underlying issues as well as the different stages of proceedings. Practice Notes set out key principles, supported by the underlying authority, with examples of how these principles apply in practice. Related documents are highlighted to enable quick progression to other documents and further reading links take you through to deeper level commentary in LexisLibrary; the research work is done for you. Lexis PSL Dispute Resolution has an in-house team with extensive dispute resolution experience, dedicated to producing content specifically for practitioners. Their experience, combined with hundreds of customer interviews has shaped this ultra-practical guidance on dispute resolution issues. In building this product, we also commissioned many experts in dispute resolution to write for us. Our recognised contributors and authors, and expert Consulting Editorial Boards are comprised of many of the top performers in the dispute resolution arena today.

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Janna is a dispute resolution lawyer with a Masters in Construction Law and Dispute Resolution. During her time in private practice at both Herbert Smith and Dentons she worked on complex international disputes, both litigation and LMAA arbitrations, dealing with technical cross border issues. Janna deals primarily with cross border issues within Lexis®PSL; specifically at the moment Brussels I (recast) but has also been actively involved with the Jackson Reforms. She heads up a LexisNexis costs team which addresses current costs issues facing the profession, was involved in the new J codes consultation and was a contributing author for the Cook on Costs supplement dealing with the Jackson reforms. Janna is a frequent contributor to the legal and professional press, including the New Law Journal and Counsel magazine.

Barry is the head of Lexis PSL Dispute Resolution and Arbitration. He specialises in international commercial arbitration and has a background in general commercial litigation. He trained and then practised at Jones Day before joining Pinsent Masons LLP. ®

I n practice, Barry’s work included general commercial, aviation and IT arbitrations, under international arbitral rules, involving UK and international clients. He also has a background in general commercial, civil fraud and IT litigation, including experience before the High Court. Whilst in private practice, Barry worked with a broad range of clients from both the private and public sectors. In addition to contributing to the LexisNexis Dispute Resolution Blog, Barry also contributes to New Law Journal on litigation and arbitration matters

Ruth Pratt Ruth specialises in general corporate and commercial dispute resolution with particular experience in shareholder disputes, fraud and warranty claims. Ruth trained and qualified at Berwin Leighton Paisner where she remained in practice for ten years. Her work has involved project managing large-scale cases to trial in the chancery and commercial courts. Ruth was actively involved in in-house training with a particular focus on all aspects of evidence gathering and production, including authoring a user-manual on E-disclosure. She is also a contributor to the New Law Journal.

Melissa Jones

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Melissa specialises in general commercial litigation and alternative dispute resolution. Melissa trained at Jaques & Lewis (now Eversheds) and subsequently practiced at Stephenson Harwood and Herbert Smith (now Herbert Smith Freehills) before moving to BPP Law School to teach on the Legal Practice Course. Melissa has been a professional support lawyer for over 10 years, firstly at Nabarro, where she set up the PSL function, and then at DAC Beachcroft, where she was responsible for drafting current awareness briefings for both lawyers and clients, writing dispute resolution articles for the firm and external publications, providing internal training and assisting with business development.

Virginia Jones Virginia specialises in general domestic and international commercial litigation, arbitration and alternative dispute resolution (ADR). Virginia trained and qualified with Pinsent Masons, where she remained in practice for over two years, before moving to Marriott Harrison where she continued in practice for a further seven years. Virginia has acted in a variety of general commercial disputes covering areas such as intellectual property, fraud, defamation, misrepresentation, breach of contract, debt recovery, breach of restrictive covenants and company and shareholders’ disputes.

Rachel Buchanan Rachel is the Dispute Resolution blog’s technical editor. Rachel qualified as a dispute resolution solicitor and worked in private practice before joining LexisNexis. In addition to contributing to the Dispute Resolution blog, she also writes content for the Business of Law blog, the Future of Law blog and Halsbury’s Law Exchange.

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CMS Cameron McKenna LLP Tim Hardy

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Moon Beever Frances Coulson Nabarro Zaina Bazeez, Sophie Davies New Square Chambers Mark Hubbard Radcliffe Chambers Shantanu Majumdar The Sheriffs Office David W Carter Southampton Row Solicitors Sallianne Cockerham St John’s Chambers Nicholas Pointon St Philips Chambers Andrew Charman, Iqbal Mohammed, Ali Tabari Stone Chambers Rani Noakes, Tom Whitehead Three Verulam Buildings George Mcpherson University Of Reading Professor Richard A Buckley Wilberforce Chambers Harris Bor

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