The John M Hayes Partnership have proven to be professional, effective and knowledgeable Costs Draftsmen. The quality and speed of their drafting is excellent and the advice received has been detailed and pragmatic.
Spencers Solicitors
The Claimant had sustained personal injury and loss as a result of an RTA in 2002; a Trial had successfully established the identity of the driver in 2011 and the action was resolved in 2012 by an Order for a lump sum payment of £1.8 million and periodical payments starting at £140,000.00 pa. The MIB were ordered to pay the Claimant’s costs.
The Claimant had the benefit of a CFA which had been made on the 21 October 2009, but which had been ‘backdated’ (to take effect from the 6 November 2008 when the solicitors were first instructed). A 100% success fee was included.
The ensuing detailed assessment was something of a ‘car crash’ for the MIB and they pursued several avenues of appeal, including:
• Could the CFA have covered an action under the MIB Untraced Driver’s Agreement?
• To reduce the success fee to no more than 5% (or in the alternative 67%) (The Judge had assessed it at 75%)
• A declaration that the ‘date’ referred to in CPD para. 19.4(2) means the date on which the CFA was in fact made; it was contended that the success fee should be disallowed in its entirety as the notice of funding had cited an incorrect date (in the absence of an application for relief from sanctions)
The long and winding rationale of the Appeal can be viewed here.
The main conclusions reached were as follows:
1. The CFA did not cover an action under the MIB Untraced Driver’s Agreement (rather it covered this civil action against the MIB).
2. Maximum success fee reduced to 67% (the Claimant’s solicitors own risk assessment figure!) The inclusion of 100% in the Bill was incorrect and the Judge’s subsequent reduction to 75% was erroneously based.
3. The Notice of Funding was rendered defective by citing the 6 November 2008; the Claimant had failed to provide notice to the Defendant that the CFA was backdated.
4. The Claimant secured relief from sanctions, but with the imposition of a penalty (success fee reduced to 20% for the period of November 2008 to October 2009).
5. The Defendant recovered 70% of the Appeal costs (to reflect losing the point about the construction of the CFA).
The seemingly utilitarian approach to the issues underpinning the substantive appeal would appear to have trickled down to the determination of the (percentage based) costs order arising from the appeal/application for relief from sanctions. This is interesting within the context of the Jackson revolution and the Post-Mitchell evolution.
In the pre-Jackson era there was typically little reason to doubt that an applicant who had successfully secured relief from sanctions would be required to pay the costs of that application. Post-Mitchell it appeared to be very much ‘as you were’ insofar as costs were concerned (though the prospects of securing relief had appeared more bleak).
More intricate overtones followed via the Court of Appeal guidance in Denton and others –v- T.H. White (2014) 1 WLR 3926, which would appear to suggest that the non-culpable party may now be at greater risk of footing the bill. Particular reference is made to the content of paragraphs 41-43 of the judgement which can be viewed here.
Once again the mantra of reasonableness and fiscal responsibility are actively promoted and encouraged, whilst perceived opportunism and a reluctance to cooperate are frowned upon.
Thursday 18th June 2015