Partners In Costs Features
19 A GAME OF TACTICS
25 WORKING HARD FOR THE MONEY
The
28 SPECIAL FOCUS: COURT OF PROTECTION
rollercoaster of legal practices
This Month’s legal specialists
MARTIN COYNE, A2J
“We are now seeing a marked, hardening of approach from the courts and, therefore, defendant insurers to the proportionality of costs incurred.”
SARAH KIRKHAM, ALLIANZ LEGAL PROTECTION
Zoe Holland, ZebraLC STEPHEN WEBBER, SCIL
Issue 4 | Autumn 2016 Edition
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welcome
EMBRACING THE
NEW SEASON Welcome to the new-look Partners in Costs magazine, Autumn 2016 - an edition we’re incredibly proud of. Thanks to some significant collaborations and PIC’s reputation for specialist services, we have attracted some industry-leading guest writers, including AvMA, the Society of Clinical Injury Lawyers, the A2J (Access2Justice) campaign and many more versed in the world of costs management, civil practice management, risk and the impact of proportionality on WIP value. This issue also features some gritty realism from our regular contributors, Zoe Holland, ZebraLC, Professor Dominic Regan and funding specialist, Matthew Gwynne, Spectra Legal. Look out for our brand new #PICSocial pages (36-37) to view the immense charity work PIC has undertaken this summer and the events its costs lawyers have supported and hosted – all shared in our new ‘social media’ format! I’m very proud to have been appointed as Editor of Partners in Costs on behalf of PIC and that my second issue at the helm has taken the online and print publication to new heights. This is very much a legal community magazine. I will aim to ensure that all content is independent, thought-provoking, offers realistic and valuable guidance and covers the very latest issues affecting legal practitioners today and tomorrow. If you’d like to get involved in Partners in Costs or have any feedback for us, please drop me a line via: emma@emmawaddingham.com
Emma Waddingham, Editor For information on PIC specialist cost services, please visit www.pic.legal www.pic.legal
Autumn 2016 Edition
elcome to the latest edition of Partners in Costs, I hope you have all had a brilliant summer. My family and I have had a well-earned rest and recharged our batteries ready for whatever the Autumn brings. Summer is very important to me as I get to spend an extended time with my family. Family has always been very important to me and is the foundation of my values and the values we share at PIC Limited. We have all returned to work to find the legal industry still facing regulatory uncertainty. No matter what specialism you practice in you will all, I am sure, feel the chill in some way. Most of us can only surmise what changes we may see to the rules this October and beyond. The Lord Chancellor was fast off the blocks after the summer break and we have already heard the Joint Vision on ‘Transforming our Justice System’. We are told that we have inherited a remarkable justice system that has been improved ever since the Magna Carta and we must not rest on our laurels. I do agree that we must all embrace new technology and challenge the traditional way we all operate. We must also ensure that we meet the needs of all the stakeholders of our justice system and provide access to justice for all. As always, we have excellent contributions from industry leaders in this edition and I want to thank everyone involved and I hope you enjoy reading it as much I as did.
Teresa Teresa Aitken, Chairperson, PIC
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Changing Hearts & Minds
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Welcome to Partners In Costs
IN TOUCH: INDUSTRY EXPERTS
9 Brexit: A Blow to Reform? Martin Coyne, A2J 11 Calm Before the Storm? Stephen Webber, SCIL 13 Elephant in the Room, Peter Walsh, AvMA 14/15
Black Holes & Revelations, Zoe Holland, Zebra LC
16/17 Brand Challenge, Sarah Kirkham, Allianz Legal Protection 19
A Game of Tactics, Matthew Gwynne, Spectra Legal
BREXIT
r m? A Blow to Refo
09
20 The Rejection Minefield, Professor Dominic Regan 21 23
I Want to Break Free… of Proportionality, Alex Taylor, PIC
IN PRACTICE: THE SPECIALISTS
25 Working Hard for the Money, Prinz Nagalingam, Victoria Square Chambers
Look for @PIC_legal on Twitter and get involved!
26 Practitioner Costs Case Updates, Costs Law Reports 27 Changing Hearts & Minds, Joe Rose, City Costs Management 28/29 Special Focus: Court of Protection, Adrian Hawley, PIC 30/31
Court of Protection: The Big Interview with Tracy Norris-Evans
32 Introducing: Jessica Swannell, A&M Bacon 33 A Day in the Life of a Coroner’s Assistant, Rachel Galloway 34/35 Emergency Room: How to Manage Symptoms of Spinal Cord Injury 36/37
#PICSocial
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You Ask… The Rt. Honourable Judge Smyth-Judge
39 Bargain Bottles
Autumn 2016 Edition
36-37 PARTNERS IN COSTS
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PROFESSIONAL DEVELOPMENT, TRAINING AND LEARNING AND SKILLS INCLUDING APPRENTICESHIPS DOMINIC REGAN TRAINING LTD IS PLEASED TO ANNOUNCE THAT IT HAS BECOME AN INDEPENDENT LEARNING PROVIDER. WE OFFER APPRENTICESHIPS IN LEGAL SERVICES, LEGAL/ BUSINESS ADMINISTRATION, AND CUSTOMER SERVICE. At Dominic Regan Training Ltd, we deliver high quality workplace vocational training and learning and skills development. We offer a full range of sector specific government-funded apprenticeships for the law and business sectors. In the legal sector, this top-up or professional development is an alternative to the more traditional academic training. Dominic Regan Training Ltd works closely with national industry sector standard bodies which, with a focus on regional and local priorities, reflect government strategies for continuing development of the professional workforce. Our training programmes are bespoke and tailor-made to suit employee and employer professional development needs. As sector specialists, we understand law and business professional development training. We are well-placed to deliver best-in-class apprenticeships which incorporate all of the technical and professional skills and the underpinning theoretical knowledge which is now required for employees to realise their full potential. Our team of professional learning and skills educationalists are all practitioners in either law or business. The team is led by some of the leading specialists in the country including Professor Dominic Regan, who is a national professional practitioner and keynote speaker in the law sector. We work closely with our partners, East Midlands Chamber of Commerce and Kaplan, to bring a suite of professional apprenticeships at Level 2 and 3 in legal administration, business administration, team leading and customer services and Level 3 and higher qualifications in legal services, business administration and management.
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Partners In Cost
INDUSTRY EXPERTS FEATURES: Brexit: A Blow to Reform? Calm Before the Storm? Elephant in the Room Black Holes & Revelations Brand Challenge A Game of Tactics The Rejection Minefield I Want to Break Free… of Proportionality
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IN TOUCH
Partners In Cost
A blow to reform? Martin Coyne, Access to Justice, provides a timely update on the government’s personal injury reforms post-Brexit and reminds us to stay engaged, collaborate and avoid complacency. Reform is coming…
T
he political brouhaha that followed Brexit has been viagra for journalists and political aficionados. Newspaper sales have soared as both major parties turned their backs on the business of government in favour of prolonged infighting. Labour has had months of this nonsense to suffer, prior to the leadership ballot in early September while the Tories have completed their dose of backstabbing (at least for now) and can return to the job of running the country. What does the new administration plan to do with the government’s controversial proposals to reform personal injury? Last November, George Osborne (remember him?) announced that people making personal injury claims worth up to £5,000 would have to use the small claims court and cannot recoup the cost of any legal advice. In addition, they would no longer be able to get any cash settlement for pain and suffering caused, although they would be able to claim for physiotherapy and loss of earnings. The plans have been strongly supported by insurers, mindful perhaps of the opportunity to reduce their claims costs and shore up their balance sheets, which have been pounded in recent years by poor investment returns. Insurers will be working hard to keep PI reform on the government’s agenda. As things stand we expect a consultation exercise (where the Government publishes its own data and seeks comment from interested parties) in the Autumn. Access to Justice (A2J) which campaigned against the previous set of legal reforms
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Autumn 2016 Edition
in this sector (LASPO), has joined other representative bodies to fight the reforms which promise to strip away the rights of millions of people to seek compensation for often quite serious injury. Moreover, the jobs of tens of thousands of legal professionals, their support staff and many more who work in insurance claims, are at risk. Many of these jobs are in the ‘Northern Powerhouse’ cities of Manchester, Liverpool and Leeds, but the Welsh economy would also be seriously damaged as most PI law firms in Wales would also be forced to shut their doors. For A2J, the issue is binary. Does the Government want to remove long held rights for the uncertain promise of a £50 saving on motor insurance premiums? This is the amount the Government says the reforms will deliver. The then Chancellor said insurers have promised to hand those savings back to customers. So far, only two insurers have publicly committed to doing so. The general public has not yet engaged with this threat to its rights and, in truth, the real problem for the man in the street is not personal injury per se but the huge rise in cold-calling. A recent report from Aviva cited the eye-watering figure of 600 million personal injury cold calls a year received by the public. Personal data sold to claims management companies (CMCs) often comes from insurers themselves. Aviva was in the news for all the wrong reasons in December last year when one of its own employees was caught accessing the details of 14,000 customers who had made claims for road traffic accidents. The errant employee then sold on hundreds of their records. (Source: BBC Moneybox 11 December 2015.)
Aviva had to write to tens of thousands of motorists who had recently had accidents warning them that an employee may have illegally taken and sold on their details. Like Aviva, A2J would like to see cold calling banned. In fact, there is much we do agree on with the insurance industry. Besides cold calling, A2J encourages a cross-industry, targeted effort to share data and stop fraud. We want to see fraudsters prosecuted by insurers. We also support a registration period for RTA portal claims notification of 12 months, which would stop the scourge of data mining almost overnight. What we don’t want to see is the Government undermining of long held rights of redress, egged on by insurers keen on saving cash. The insurance industry is massively well-resourced but A2J is determined to fight for our industry’s livelihood and the customers we have helped. We urge our friends and supporters to help too, by donating to A2J to fund our campaign.
PLEASE VISIT OUR WEBSITE accesstojusticeactiongroup.co.uk and click on ‘get involved.’ Every pound you contribute will help to safeguard peoples’ long-held rights to seek redress for their injuries.
Martin Coyne is a Director of A2J and the Managing Director of Ralli Solicitors.
IN TOUCH
INDUSTRY EXPERTS
9
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Calm before the Stephen Webber, Chairman of the Society of Clinical Injury Lawyers, addresses the full impact of further reform for the clinical negligence legal profession and why a period of calm is required.
C
linical negligence litigation has undergone radical change over recent years including the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO). The full impact has yet to be determined but, somewhat prematurely in my view, the Department of Health (DOH) is reviewing further reform, having published a pre-consultation on Fixed Recoverable Costs (FRC).
RECENT REFORMS The reforms implemented following LASPO drastically changed the clinical negligence legal market. Legal aid is now largely unavailable and the recoverability from the defendant of ‘success fees’ and full after-the-event insurance premiums is no longer possible. This is in addition to the changes in the rules applying to costs generally including the way in which the courts manage costs and budgeting as well as new proportionality rules. Proportionality has been a key element, with the idea that proportionality trumps necessity. Whilst this principle has not yet been fully tested in the clinical negligence context, if a stringent approach is adopted, how will it be possible to run a modest value case to trial (even when highly important to the client), when including expert and court fees. It cannot be right to then deny access to justice to claimants who may have been left with significant injuries or the loss of a loved one. The reforms will inevitably save costs to the NHS but will also need time to bed in and so all parties can understand how proportionality may be applied in these difficult circumstances. The full impact of LASPO is unlikely to be apparent for at least another 12 – 24 months. Despite the reforms, the DOH continues to press on with the pre-consultation only focused on claimant costs to attempt to reduce the cost for the NHS before understanding the present savings and the full effect of previous www.pic.legal
Autumn 2016 Edition
storm? reforms. Unfortunately, it seems that in clinical negligence, claimant lawyers are once again being identified as an ‘easy’ target.
COSTS It cannot be denied that the cost in each individual clinical negligence claim for the NHS will fall following LASPO as success fees and the full ATE will not be recoverable. Proportionality and budgeting will produce further savings. The most recent NHSLA report indicates that the number of cases being reported is dropping so further savings will be made. The NHSLA annual review 2014/15 identified a number of factors that it sees as the cause for the present level of costs. They seem to primarily focus on claimant lawyers’ costs in that report and what seems to be missing altogether is an analysis of other effects on costs including the impact of defendant behaviour. It is notable that, following LASPO, claimant behaviour and costs continue to be heavily scrutinised through detailed assessment proceedings yet no detailed review of defendants’ conduct has been undertaken. Master Cook’s excellent and informative ‘Costs Budgeting v Fixed Costs’ lecture on 18 February 2015 highlighted some of the key aspects of defendant behaviour that act to drive up costs, being: 1. Failures to provide prompt and adequate disclosure; 2. Failures to respond adequately in accordance with the pre-action protocol; 3. Failures to embrace split trials where appropriate; 4. Failures to make early and prompt admissions; and 5. Needless opposition to requests for interim payments on account of costs. The key to reducing costs must be focused on improved care so as to reduce negligence and early settlement of meritorious cases submitted to the NHSLA. Of course, with improved, safer care the human tragedy would be avoided altogether as well as legal costs and damages saved. As Catherine Dixon (former CEO of the NHSLA and now CEO of the Law Society) stated:
SCIL PROPOSALS Since the DOH pre consultation on FRC, SCIL has been working to establish the best course of action for clinical negligence costs going forward. SCIL considers that the savings already in the system following the previous reforms will be significant. The full impact of these on the NHS and claimant law firms must be analysed before it can be determined what, if any, further changes should be made going forward. SCIL is therefore proposing that a cross-industry Working Group is created. This group would review costs across the spectrum, including a detailed analysis of LASPO savings, claimant and defendant behaviours, court fees, ATE insurance, budgeting and proportionality, profitability and survival of specialist law firms and access to justice. Master Cook said in his lecture: “The views of court users, practitioners, judges and all other stakeholders should be taken fully into account.” A sensible and carefully considered set of proposals could then be established which will not act to disadvantage patients but allow for an appropriate cost effective system to be implemented. The Working Group could also monitor the implementation of any reforms. Costs in clinical negligence is a bigger issue than just claimants’ solicitors’ fees. There needs to be careful consideration before implementing further changes until the true position of the costs of clinical negligence can be analysed. Master Cook summarised the position well when he stated in his lecture that: “In my opinion a period of calm is called for before more radical change”. Stephen Webber is the Chairman of the Society of Clinical Injury Lawyers (SCIL), an organisation that represents over 100 specialist clinical negligence law firms throughout the UK.
scil.org.uk
“Perhaps the time has come to address the fact that the clinical negligence bill is rising and the only way to reduce it is to invest in safer NHS care - not to stop solicitors getting paid a fair and appropriate amount for the vital work they do to help harmed patients.” IN TOUCH
INDUSTRY EXPERTS
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The charity for patient safety and justice
Forthcoming conferences and events from AvMA For full programme and registration details, go to www.avma.org.uk/events or email conferences@avma.org.uk The important work conducted by AvMA’s Inquest service is the basis for this conference, which is designed to be a 6 OCTOBER 2016 comprehensive guide to the DOUBLETREE BY practice and procedures HILTON MANCHESTER when representing a family PICCADILLY at an inquest. The day will take you through the preparation process, helping you to understand the complex issue of disclosure, management of expert evidence and Article 2. An update on case law, funding issues and post-inquest remedies will also be discussed.
REPRESENTING FAMILIES AT INQUESTS
Elderly people should feel assured that they will receive the best possible health and 20 OCTOBER 2016 social care, but reported AMERICA SQUARE incidents show that the standard CONFERENCE CENTRE, of care in the UK, both in LONDON hospitals and care homes, can be of detrimentally poor quality. This is a must-attend conference for clinical negligence solicitors and barristers and healthcare professionals specialising in elderly care and clinical governance and will provide the most up-to-date practical and legislative information to help ensure older people get the best care possible and are properly represented.
IMPROVING CARE OF THE ELDERLY
Leading experts will highlight the medico-legal issues surrounding cranial surgery, stroke medicine, spinal surgery, issues arising in neuro-intensive care and medico-legal aspects 3 NOVEMBER 2016 of neurological rehabilitation. RADISSON BLU HOTEL, Quantum in neurosurgery LIVERPOOL and neurological disease will also be covered. This conference is for clinical negligence solicitors and barristers at all levels, as well as healthcare professionals involved in clinical governance and patient safety.
CLINICAL NEGLIGENCE ISSUES IN NEUROSURGERY & NEUROLOGICAL DISEASE
THE FUTURE OF CLINICAL NEGLIGENCE – COMMERCIAL REALITIES
22 NOVEMBER 2016 AMERICA SQUARE CONFERENCE CENTRE, LONDON
In a particularly challenging and crucial time for clinical negligence specialists, this highly practical conference will examine the major issues, challenges and opportunities facing clinical negligence practitioners today.
tel 0203 096 1140
AVMA CHRISTMAS DRINKS RECEPTION 2 DECEMBER 2016 AMERICA SQUARE CONFERENCE CENTRE, LONDON
AvMA’s Christmas Drinks Reception, which is open to AvMA Panel and non-Panel members alike, provides an excellent opportunity to catch up with friends, contacts and colleagues for some festive cheer!
Many people with diabetes have multiple and complex health problems and, 8 DECEMBER 2016 with this significant risk in DOUBLETREE BY HILTON mind, the potential delay HOTEL, LEEDS or missed diagnosis of the patient can have serious consequences. This conference looks at the condition in detail, types of diabetes, risk factors and complications of treatment, co-morbidity, including gestational diabetes, cardiac complications, peripheral vascular disease and diabetic neuropathy and retinopathy. The impact of diabetes on causation arguments will also be discussed highlighting how the condition affects the way the clinical negligence practitioner looks at injuries
MEDICO-LEGAL ISSUES IN DIABETES
This is the course for those who are new to the specialist field of clinical negligence. 2-3 FEBRUARY 2017 The event is especially JURY’S INN HOTEL, suitable for trainee and BIRMINGHAM newly qualified solicitors, paralegals, legal executives and medico-legal advisors, and will provide the fundamental knowledge necessary to develop a career in clinical negligence. Expert speakers with a wealth of experience will cover all stages of the investigative and litigation process relating to clinical negligence claims from the claimants’ perspective.
CLINICAL NEGLIGENCE: LAW PRACTICE & PROCEDURE
This popular AvMA conference returns to London on 15th March and will discuss and analyse the key areas currently 15 MARCH 2017 under the spotlight in AMERICA SQUARE Cerebral Palsy and Brain CONFERENCE CENTRE, Injury Cases so that LONDON lawyers are aware of the challenges required to best represent their clients. Determining causation, neonatal risk factors and intrapartum fetal distress and surveillance focusing on CTGs will be covered by leading medical experts. Guidance will also be provided on technological aids for children, case management and issues surrounding periodical payments and the discount rate.
CEREBRAL PALSY & BRAIN INJURY CASES – ENSURING YOU DO THE BEST FOR YOUR CLIENT
email conferences@avma.org.uk
web www.avma.org.uk/events
Elephant in the
room
The dark shadow of fixed costs remains fixed over the Clinical Negligence industry and is surely the hot topic for all practitioners. Peter Walsh, Action against Medical Accidents, reports on how the organisation and its legal affiliates are reacting.
A
vMA’s annual clinical negligence conference in Brighton this June was as big and impressive as ever, with over 400 delegates. Based on the attendance and participation at the conference, there was certainly no sign of the much talked about ‘implosion’ of the clinical negligence market. The evaluation forms revealed tremendous satisfaction both with the quality and relevance of the speakers - both medical and legal - and the organisation of the event and facilities. Delegates from just about every serious clinical negligence firm in the country showed no sign of doom and gloom, and the upbeat atmosphere and desire to learn spoke volumes of the commitment to the cause of justice for people affected by clinical negligence. However, there was no mistaking what the rather large ‘elephant in the room’ was and there was no attempt to hide it. Whilst Brexit and resultant chaos meant there was no consultation document out (and at the time of writing there still isn’t), an earlier than normal opening session on the Saturday morning (featuring Reuben Glynn of PIC) re-enforced the expectation that change is on its way and is likely to be extremely challenging. It is a question of when and how bad, not if. The official line from the Department of Health is that the consultation could start any day now. However, there have been ministerial changes in the department even though Jeremy Hunt remains Secretary of State. Ben Gummer MP, who had fixed costs as part of his portfolio, has moved on. We understand that Lord Prior is to take this on. AvMA has written to Lord Prior (who I know from his days as chairman of the Care Quality Commission) to point out how controversial the proposals are likely to be and how damaging both to access to justice and to patient safety. He may want to pause and reflect rather than simply pressing ahead with what his predecessor set in train but I know from meeting him that Jeremy Hunt is personally keen on this policy. We also met with Ben Gummer twice before he moved and he sought to give us the impression that we might be less displeased with the proposals that eventually emerge than we have been based on what we know so far. He said that he had heard our messages ‘loud and clear’ and that there would be some
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Autumn 2016 Edition
exceptions from the fixed costs arrangements. He also said that the proposals would have something to say about dealing with defendant behaviour that leads to increased costs. Time will tell but AvMA is doing all it can to temper the proposals and challenge anything that would compromise access to justice or patient safety. We are working closely with other charities representing patients and people who might be worse affected by the proposals and expect to be able to build a strong coalition of charities opposed to their worst aspects. We are speaking to politicians of all parties and are confident that at least some will ensure the proposals are given a rough ride in parliament. We are also working with the media to try and ensure more balanced coverage than the ‘beat up greedy ambulance chasers’ approach that the Department of Health’s media machine will no doubt be trying to cultivate. We are working with organisations who share our concerns such as the Society of Clinical Injury Lawyers, The Law Society and APIL to pool intelligence and adopt a strategic approach. Like lawyers and others practising in this very specialist and demanding field we also have to get on with our on-going work to help people who have been harmed through no fault of their own. We are also committed to supporting specialist lawyers in their work and developing good practice through our conferences and events. It’s not going to be a dull year! Peter Walsh is the Chief Executive Officer of AvMA. IN TOUCH
INDUSTRY EXPERTS
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Zoe Holland, ZebraLC highlights the warning shot to claimant practitioners as to the very serious pressures on costs recovery and cost judges’ hardened attitudes to ‘niche’ or ‘complex’ work fee justifications thanks to proportionality, the black hole of WIP profiles. Zoe Holland is the Managing Director, of ZebraLC, & ZebraTD
Case Index BNM v. MGN Limited [2016] EWHC B13 (Costs) (1) Dr Brian May (2) Mrs Anita May v. (1) Wavell Group Plc (2) Dr Bizarri (SCCO) 2016 Hobbs v. Guy’s and St Thomas’ NHS Foundation Trust
W
ith a string of recent cases, proportionality is a hotly debated topic that is here to stay. Challenges due to the hardening attitudes of Courts and Defendants, have the potential to impact heavily on the valuation of ‘accrued net income’ and off balance sheet WIP.
The rationale behind such a strategic decision was reasonably sound, as these ‘niche’ areas were not subject to the impending restrictions on costs recoveries that other areas of mainstream PI were about to be, as costs were still payable on the standard basis.
Firms relying upon historical recovery rates for financial modeling and WIP valuation, need to take heed that a downward pressure on costs recovery due to proportionality challenges is a real risk. This is a live issue for many personal injury firms especially those managing NIHL and clinical negligence cases. Key stakeholders such as banks, funders and accountants also need to be aware of the emerging risks and the impact on WIP valuation.
However, to place that into context, a new rule on proportionality was enacted that has until recently seen fairly little publicised impact on costs recovery. We are now seeing a marked, hardening of approach from the Courts and, therefore, Defendant Insurers to the proportionality of costs incurred.
Proportionality is also affecting M&A valuations and is increasingly a focused area of due diligence.
Background Pre-Jackson, many mainstream personal injury firms were rightly concerned about their potentially dwindling revenue streams, when faced with the impending LASPO/Jackson based reforms. The solution to this dilemma for many of them was to expand into ‘niche’ areas of personal injury, most particularly Noise Induced Hearing Loss and Clinical Negligence. This is a picture that we have seen painted across dozens of firms across the jurisdiction. 14
INDUSTRY EXPERTS
IN TOUCH
These cases demonstrate clearly that Courts are struggling to accept the argument that formerly ‘niche’ areas are complex and require more extensive costs to be incurred because of the specialist nature of advice and the complex issues that exist within the case. Partners In Costs
We are now seeing a marked, hardening of approach from the courts and, therefore, defendant insurers to the proportionality of costs incurred.
WIP
Firms relying upon historical recovery rates for financial modeling and WIP valuation, need to take heed that a downward pressure on costs recovery due to proportionality challenges is a real risk. Recent cases In the recent cases of BNM and May, the respective courts made an assessment of reasonable costs. However, the Master in each case further reduced the amount of reasonable costs by 50% based on their views of proportionality. In the case of May, Master Rowley made clear that: “the amount that can be recovered from the paying party is not the minimum sum necessary to bring or defend the case successfully”. In the case of BNM, Master GordonSaker in his judgment stated that: “the sums which had been allowed as reasonable on the line by line assessment were disproportionate and were about twice the sum which would be proportionate.” Firms practising in ‘niche’ areas may well need to come to the realisation there is a growing perception that ‘niche’ areas are no longer rightly considered as ‘niche’, due to the large volume of non-specialist practices undertaking the work. A useful example of this is the case of Hobbs - a clinical negligence matter. In Hobbs, Master O’Hare makes a number of important points:
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Autumn 2016 Edition
The case did not merit a Grade A fee earner running the file but rather necessitated a lower grade running the file with the Grade A touching the case at essential and necessary points.
That actions of a solicitor, such as a conference with Counsel, need to be conducted when necessary and when most appropriate.
The denial of liability by a defendant does not put the claimant to additional work.
Apply a ‘what, why, whose request’ approach to running a case.
In essence, it can be seen that Master O’Hare is stating that simply because you are running a clinical negligence case that has complex issues, this does not mean one can justify a Grade A when a Grade B could run the file and request help and/ or guidance when necessary. As a result, firms who consistently use, effectively, over qualified fee earners to run a case, on a daily basis, are being unrealistic, as the costs they claim will be significantly reduced. Further, Master O’Hare makes clear that the building of WIP through, for example, a conference, for the sake of building WIP on that case as an asset, will not be looked upon favourably.
Impact on niche areas These cases demonstrate clearly that Courts are struggling to accept the argument that formerly ‘niche’ areas are complex and require more extensive costs to be incurred because of the specialist nature of advice and the complex issues that exist within the case. The reality is that, in some circumstances, some aspects of these niche areas have been volumised. De-skilled. Call it what you will, but it is having a significant impact on WIP or costs recovery. This is a warning shot to firms operating in ‘niche’ areas that have not streamlined their process and have not provided the service that is necessary to run an efficient case. A change of attitudes by the Courts and Defendant Insurers is confirmed by what ZebraLC has seen on field audits. A failure to recognise these issues will ultimately lead to black holes in firms’ WIP profiles, and potential swathes of WIP that are no longer recoverable.
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Challenge Do you have a brand presence? Does your target market really know what makes you different? Sarah Kirkham, Allianz Legal Protection, sets law firms the brand challenge to see if they have the tools they need to stand out from the rest.
M
any of the world’s largest brands started very small and came up against stiff competition. What differentiated them? Their brand and how they marketed it.
Take Ben & Jerry’s for example, a household brand that everyone knows and yet it started as an underdog brand against fierce competition from the likes of Häagen-Dazs. Ben & Jerry’s creative marketing and branding (that makes choosing its ice cream more of a game than a task) quickly accelerated the brand’s growth and prevented even the strongest competition from stifling it.
Ask yourself a question. How familiar are you with these companies: SAB Miller, Grupo Bimbo and ConAgra? Or these companies: Carlsberg, Estee Lauder and Heinz? I guarantee more of you are familiar with the latter, despite the fact that when looking at the Top 50 FMCG companies in the world, combined sales revenue for the former was 31% higher than for the latter in 2014. Why is it you’re more familiar with the latter? The answer is that you see more of their brands through persistent marketing efforts. Law firms may offer exceptional service (which they believe is superior to that of their competitors) but without marketing, no potential customers would know about it.
What value can marketing add to a law firm? A successful Marketing Strategy can hugely impact a law firm, especially at a time of market uncertainty, as seen within the current legal climate. Differentiating your brand from your competitors’ - through market knowledge and understanding though to generating consumer trust - has never been more important.
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Partners In Costs
How can Allianz Legal Protection help? At Allianz Legal Protection, we have an experienced marketing team that understand the impact of marketing and who, as part of the service provided through our ATE insurance facility, will provide assistance to help law firms with their client proposition, brand values and distribution campaigns. In addition, our shared claims & underwriting insight informs law firms of trends and best practice to help firms achieve improved claim outcomes.
Sarah Kirkham is the Marketing Officer at Allianz Legal Protection.
GENERATE MORE LEADS A good marketing campaign will naturally drive sales – if people don’t know that your business exists, they can’t purchase your product or service. Segmenting and targeting your customer base helps you generate the type of business that you really want to deliver the best returns for the firm.
INCREASE AWARENESS OF YOUR BRAND, VALUE AND PURPOSE Having a strong brand identity that reflects the values and personality of your business is incredibly important in driving a marketing strategy. It helps solidify your reputation in the market and generates trust and confidence for your clients. Raising your brand purpose through marketing builds a huge audience of potential customers who know where you are when they need you.
As an example of the marketing support we’ve recently conducted, we supported one of our business partners with a full review of their customer journey, current practices, marketplace and competitors in order to develop a marketing strategy for them. This aims to aid lead generation and increase awareness of the brand in its target market. We can also support business partners with our online marketing tool, Allianz Marketing Arena which enables firms to create online marketing materials such as email campaigns, adverts and HTML as well as offline content such as direct mail or branded documents. This allows our firms to increase their marketing activity, with minimal effort at zero cost. We have experience in PR, social media, online campaigns, web development and brand, all of which we’re keen to share with our firms to support their growth ambition. We have a commitment to working with law firms and to share our experience to help them further develop their propositions and campaigns, and to ensure a long-term successful partnership.
FOR MORE INFORMATION ON WORKING WITH ALLIANZ LEGAL PROTECTION, CONTACT US ON: alpenquiries@allianz.co.uk
INCREASE YOUR UNDERSTANDING OF THE MARKET Understanding your marketplace and what your competitors are doing helps determine your business strategy. It allows you to create sustainable competitive advantage, by differentiating from the rest. www.pic.legal
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It’s time to bring in the specialists
Victoria Square Chambers is a new-breed, specialist national Costs Chambers. It’s our mission to add value and opportunity to your practice through Costs Advocacy, Costs Advice and Costs Mediation through our leading experts and advisers.
At the Frontline, on your side 020 3862 5035 clerks@victoriasquarechambers.co.uk
@VSChambers
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A GAME
OF TACTICS? Defendants are pushing clinical negligence practitioners against a wall, using clever tactics that could risk the sustainability of some legal practices. Don’t be subject to short-term tactics, writes Matthew Gwynne, Spectra Legal; plan ahead.
C
laimant clinical negligence lawyers will be all too aware of obstructive defendant tactics when it comes to attempting to reach a settlement. Even some NHS chief executives have spoken out about the tactics of their own lawyers.
will be delayed until the firm’s strength of character and ability to litigate is proven (e.g. by taking cases to trial). Once this has been achieved then a different experience occurs but it means that newcomers may find it more difficult to continue trading in the early days.
These tactics can range from the infuriating to the ridiculous. Ignoring timelines stated in the established protocols is very common; an issue that I understand both SCIL and AVMA are focusing on currently. Failure to settle strong cases at an early stage is another, with defendants letting claimants proceed to a full letter of claim in the knowledge that they will settle, admitting liability on the eve of a trial and then querying all the avoidable costs involved.
The pressure can also be particularly great in multi-disciplinary firms where the rest of the firm may see itself as shoring up the delayed revenues from clinical negligence departments. Understandably for many it can be difficult for them to hold their nerve.
Furthermore, interim payments are often extremely difficult to obtain in clinical negligence cases and so claimants are under much greater stress and can be tempted by low offers, particularly around Christmas time. Yet our experience in the Canadian market over the past 11 years is that defendants will vary their tactics depending on the law firm they’re litigating against. We have also started to see these tactics in England and Wales.
Litigation Tactics Defendants will consider whether a firm is publicly-listed, has external backers or is known to have the depth of pockets for a fight. However, as this does not apply to the vast majority of firms running clinical negligence cases in England & Wales, many firms are left having to deal with litigation tactics designed to put them on the brink of financial collapse. Newcomers are particularly at risk and will find that every aspect of the litigation
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Autumn 2016 Edition
Prepare for the long-haul Of course, it is completely understandable why some firms get tempted when money is tight but in our experience the worst thing they can do is focus solely on cash collection through any means. Whilst all firms will strive to maximise clients’ damages they will often, due to cash flow pressures, not be able to adopt the same approach to their own costs negotiations. This can often lead to costs negotiations being settled too soon and at a lower value. Such an approach only sacrifices profit for cash.
Matthew Gwynne is a Director of SpectraLegal
The power of analysis In our experience, those firms that proactively analyse their past cases and use these insights to predict future performance tend to be more successful at navigating the cash flow uncertainty of running clinical negligence cases. After all, knowledge is power. Most firms have some sort of case management system in place and so already have the ability at their fingertips to better understand their case load and make accurate predictions around future performance and cash availability. Yet, failure to keep accurate, detailed and consistent records is a common problem. We try to help the firms we work with to gain real-time clarity on the current state of all their cases. Only once you have this information can you know the real value in your business and make accurate future predictions.
We all know that defendant behaviour is unlikely to change unless legislation forces it do so and our advice to firms usually starts with: prepare for the longhaul. The reality is that you can’t control defendant behaviour but you can control the way your firm operates and responds.
Do your homework
A major problem for claimant firms is identifying in advance the appropriate amount of working capital they need to fund the business - often the cause of cash flow pressures. It is not a straightforward process and needs a thorough understanding of how different case types and litigation strategies impact cash flow and working capital requirements.
Banks, insurers and funders continue to be active in supporting law firms in straightened times, yet in a market where a consultation on fixed-costs is imminent, those operating in clinical negligence will increasingly be expected to demonstrate a thorough understanding of the value in their own businesses. Firms must also have the ability to model the impact on cash flow and profitability that these changes may bring at their fingertips.
It is also important to remember that there is a competitive market of financial products out there to help with WIP, disbursement and costs funding designed to help firms navigate the ups and downs of litigation.
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THE
REJECTION s a claimant there is nothing to touch a Part 36 offer from you. The potential plethora of benefits that flow from a good offer mean that Part 36 is the only way to go. However, a defendant might, for good reason, want to make a different type of offer and that is one without prejudice (WP), save as to costs. For a start, there is no automatic right to costs upon acceptance. Part 36 generates a deemed costs order.
IMPORTANT DISTINCTIONS The single most important distinction is that a WP offer is contractual and can contain any terms that the maker wants. You write your own script when you make such an offer. For example, one could propose ‘Payment of £135,000 to include costs and interest provided this offer is accepted within 7 days’. That would be impossible under Part 36 because of both the costs condition and the time limit that needs to be a minimum of 21 days. Defendants, particularly but not exclusively in commercial disputes, love the idea of wrapping up a settlement in one sweep. The sample offer above would put the dispute to bed without any assessment of costs or other delay.
REJECTION MINEFIELD Delivering a recent judgment in DB UK Bank v Jacobs Solicitors (claim no. HC2013000358), Andrew Hochhauser, sitting as a Deputy High Court Judge, held that a party who made a Part 36 offer in reply to a WPSAC proposal had, in law, rejected the contractual effort to settle and so a subsequent purported acceptance was a nullify. The case was live and would proceed. The very act of making the Part 36 offer constituted rejection. Rejection is a minefield. It means everything in contact, nothing under Part 36. Therefore, parties who make a string of Part 36 offers to one another are never rejecting any one of the proposals received. You could write every day for a month, telling your opponent that their offer was rejected and then turn around and lawfully accept it. This is because Part 36 is a code of Rules unrelated to the law of contract; see CPR 36.1.
Professor Dominic Regan treats Partners in Costs to his trademark, unique helicopter view of the industry to highlight the minefield of ‘without prejudice’ contractual offers and the interplay with Part 36. Should you elect to respond with a Part 36 offer the WP one will, in law, have been rejected by you, even if you never use the word ‘reject’. Professor Dominic Regan is one of the UK’s foremost speakers on costs and dispute resolution and is a special adviser to the Association of Costs Lawyers. He is the Founder of Dominic Regan Training.
The lesson is short and simple. If you are minded to accept a WPSAC offer grab it while you can.
Because the offer is contractual, it follows that an offer could be withdrawn prior to acceptance even before any deadline mentioned within it has expired. Therefore, a defendant could make an offer supposedly open for 30 days but could retract it three days later. There is utter flexibility built into the offer.
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I WANT TO BREAK FREE…
of Proportionality* Proportionality has had its share of bad press of late, leading to a ‘people’s champion’ for ‘fairness’ but as Alex Taylor, PIC, writes, concerns remain over access to justice in the new costs landscape.
T
he curious thing about the proportionality rule is that it is entirely dependent on a judge’s personal view; there is very little a practitioner can do to actually factor it in.
The big decisions, Khazakhstan, BNM, May, are all familiar to those of us practicing in this field but the interesting thing about these decisions is that whilst they all involve big numbers (which makes for great copy) they do not address the central issue. This is that there is no practical guidance as to how the proportionality rule is to be applied, thus the outcome cannot be predicted.
THE RISK OF ‘COMMERCIALITY’ This is a major issue for solicitors and their firms as it adds a new, significant burden to their practice. Solicitors must now also consider the commercial aspects of running their case as, effectively, the most important thing. Indeed, it can easily be imagined that as claimant firms’ pockets continue to get shallower, a solicitor must very seriously consider just how much risk it is worth undertaking when it comes to their costs. This has now become a daily, very unfortunate, adjunct to the role of any litigator and inevitably it will come at the expense of access to justice. Recently, the Master of the Rolls commented in Carder v University of Exeter that:
KILLER QUEEN In another, rather bizarre twist, it appears that the man in the street has an unlikely champion in the form of Queen guitarist Brian May. As many who follow these things will know, May was recently the Claimant in a private nuisance claim that settled for £25,000.00. May’s bill came to £208,236.54 and was subject to the new proportionality test in its entirety. After assessment, the reasonable costs came to £99,655.74. Costs were then reduced further in line with the proportionality rule to £35,000.00 plus VAT. May did not take this lying down and published an article expressing his disbelief in The Times. May called proportionality a ‘scam’. May comments on his understanding of the proportionality rule as follows: “Master Rowley decided that the costs I’d detailed were unreasonable, so he reduced them to less than half; and then he applied this new rule of proportionality, which dictates that if the costs are much higher than the damages, they must be reduced to be ‘in proportion’. So I ended up with about £35,000 plus VAT instead of the £208,000 that I had spent on the action.”
As a postscript, I should add that I recognise that Mr Carder has been awarded a sum which is small when compared with the costs of this litigation. That is regrettable. But litigation of this kind is often necessarily factually complex. Defendants faced with claims whose costs are likely to be out of proportion to the damages likely to be awarded after a trial should try to settle them early.
May continued to question where the ‘justice’ is in the new proportionality rule. If this is the view of the general populace encountering the proportionality rule, the rules committee has a great deal of PR work to do in selling the concept…
It is all very well arguing that the burden of responsibility for proportionality should be in part borne by the Defendant. Those acting for Claimants will be well aware the converse is true.
IMPACT ON ACCESS TO JUSTICE The serious questions about access to justice have not been addressed. Personally, I believe that a bigger deal should be made of this aspect. The application of the rule is vague and inconsistent and by the very nature of the rule as drafted, one might even think the Civil Procedure Rules committee delegated the task of defining the proportionality rule to Franz Kafka.
(*With apologies for a few cheap Queen puns…) Alex Taylor FILEx, is the Newcastle Office Manager.
It seems no one wants to address the point that, very much like Josef K’s experiences in The Trial, the process is entirely shrouded in mystery. For practitioners, the rule is a concern but for ‘the man in the street,’ the rule must be utterly bewildering.
ARTICLE www.pic.legal
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Practitioner Costs Case Updates Changing Hearts & Minds Special Focus: Court of Protection Court of Protection: The Big Interview with Tracy Norris-Evans Introducing: Jessica Swannell, A&M Bacon A Day in the Life of a Coroner’s Assistant, Rachel Galloway Emergency Room: How to Manage Symptoms of Spinal Cord Injury #PICSocial You Ask… The Rt. Honourable Judge Smyth-Judge Bargain Bottles
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Working hard for the money Prinz Nagalingam suggests that while the professional is currently sailing within a ‘plateau of predictability’ in costs management, more should be done during budgeting to avoid falling down at a challenge or appeal stage.
continue to find the development of costs budgeting fascinating. From the early days of avoidance (including some in the Judiciary), to some rather gung-ho decisions in the months thereafter and now to the relative calm of some Courts and Judges, which has led to something of a plateau of predictability. I believe there should be much more development to come. However, it will require a few brave souls to ensure that happens.
Paragraph 7.6 One area I find of particular interest is Practice Direction 3E, and in particular the vastly underused paragraph 7.6 along with the inferences which may be drawn from the wording of paragraphs 7.4 and 7.5. To put this in context I perhaps need to take a few steps back. It strikes me that, for whatever reason, parties on both sides of the divide seem to have fallen into a practice of treating costs budgeting as one-off exercise and whatever you get, you’re stuck with. There have been odd tales of failed attempts to appeal a Judge’s costs management decision. However, appeals on such grounds are typically doomed to failure given that, generally, the Judge will have exercised their discretion based on what was known at the time, rather than erred in law. Seeking to later revise a budget on the other hand is not the same as an appeal. Yet at the time of writing this in July 2016, I have seen very little use of the otherwise useful paragraph 7.6 of Practice Direction 3E.
reference is made to the fact that “the court may not approve costs incurred before any budget”. I have added emphasis to highlight the fact that the need for more than one budget in a case should be considered nothing unusual.
Directions were also given for future review of the PTR phase on the basis that the requirement for the same and extent of the same could not yet be known at the present stage – being a proper use of paragraph 7.5.
Paragraph 7.5 provides that the court “may… give other directions for future reviews of budgets” which in my view implies that again, the need for budget revisions should not be considered unusual.
I would also point to the glaringly obvious skewing of the allowances for costs budgeting towards “costs of the budgeting and costs management” in paragraph 7.2, whereby the parties are allowed DOUBLE for managing the budget as compared with the initial cost of preparing the Precedent H.
Then there is the wonderfully crafted paragraph 7.6 which in one sense arguably compels a party to revise their budget up, or indeed down “if significant developments in the litigation warrant such revisions” – which is arguably a two stage test.
What constitutes a ‘significant development’? I would like to see much more testing of what constitutes a “significant development”. I also consider it will be extremely interesting to see how that plays out for either party. For example, a Defendant may consider an admission of liability as a “significant development” (the first stage of the test) that would “warrant” (the second stage of the test) a downward revision to a Claimant’s budget. In contrast, as indeed was the case on a recent matter I appeared on, a Claimant may consider significant new and voluminous disclosure a ‘significant development’ that warrants an upward revision. In that case, the Judge exercised her paragraph 7.6 discretion to largely approve the variations despite the revised budget being so ‘upward’ as to more than double the original approved budget.
This in my view is further evidence that budgeting was always intended to be an ongoing process involving the Court – discussions or hearings to revise a budget up or down were assumed to be a commonplace features. Indeed, when you consider the realities of litigation why wouldn’t that be the case?
Are you prepared? Wherever your loyalties may lie the fact is that (in theory) on a detailed assessment of costs there will not be a departure from the “receiving party’s last approved or agreed budget… unless there is a good reason to do so” (Rule 3.18). Whether you end up challenging or defending those costs, it is that ‘last’ approved or agreed budget that is key. This is the reason why everyone should be taking a much closer look at rules governing budget management and frankly working a lot harder for that 2%! Prinz Nagalingam is the Managing Partner and a Senior Advocate at Victoria Square Chambers.
victoriasquarechambers.co.uk
The clues to the intentions of the rule makers starts in paragraph 7.4 where www.pic.legal
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Costs Case Updates
FOR PRACTITIONERS Costs Law Reports guides us through two key costs cases, reported on costslawreports.co.uk
Churchill v Boot [2016] 4 Costs LO 559 (Picken J)
Rosenblatt v Man Oil Group SA [2016] 4 Costs LO 539
In this case, the court considered an application for permission to appeal against a decision to refuse the claimant permission to amend his costs budget, pursuant to CPR Part 3, Practice Direction 3E, Costs Management, section 7.6.
(Elisabeth Laing J and Master Haworth sitting as an assessor)
The claim related to an RTA that had settled as a result of successful mediation. The claimant’s costs budget had been approved in the sum of £114,000.00 on 16 June 2014. The claimant had applied for permission to amend his costs budget, with a revised costs budget in the sum of £239,643.84. The application had been refused on the basis that the Master considered there had not been a “significant development” so as to justify any amendment to the budget. The claimant sought to appeal on three grounds: (i) That the Master had erred in law and fact to refuse the application to amend the costs budget and find that there had not been a “significant development” in the case; (ii) That the Master had erred in a matter of fact by finding that the case had taken a predictable route which should have been predicted when the original budget was made, as being a reason for not amending the budget; (iii) The Master had been wrong to hold that there had been no regard for the additional budget. In support of the grounds of appeal, the claimant submitted that the claim had doubled in size from £1 million to £2 million since the original costs budget was set; the trial had been adjourned for a period of six to nine months as a result of an order made in January 2015; and further disclosure had been ordered by the court in January 2015. Held: Permission to appeal refused. A doubling of the size of the claim does not necessarily mean or justify an increase in costs; an adjournment, of itself, does not always amount to a significant development; and the further disclosure was standard for claims of this sort.
In this case, the court considered an appeal from a decision relating to the terms of the defendant’s retainer with the claimant where the claimant was a solicitor and the defendant was his former client. The terms of the retainer had incorporated hourly rates of charge for work done, a fixed fee structure and a right for the claimant to depart from the fixed fee structure should the express assumptions upon which it was based be superseded. The Master concluded that the fixed fee assumptions had been superseded but that the claimant was not entitled to claim payment from the defendant for any sum greater than the lower fixed fee. This is until the date when the claimant had given the defendant notice of its intention to render further charges for its work, following which the claimant was entitled to be paid at the agreed hourly rates. The claimant sought to appeal on the grounds that the Master had misconstrued the terms of the retainer, in particular the sentence: ‘should any of these assumptions prove to be incorrect, we reserve the right to revisit our fees’. The claimant submitted that the fees incurred prior to the date of notice of intention to render further charges should not be limited to fixed fees. Held: Appeal dismissed. The retainer agreed the hourly rates that would apply if fees were to be assessed by reference to hourly rates. However, the agreement did not specify that if the ‘trigger’ be pulled, hourly rates would automatically replace the fixed fee as the basis for assessing the fees due, and it would have been very easy to specify that if that had been the parties’ intention. Once the position was that no new fixed fee had been agreed and once the defendant had decided to continue with the relationship on a fully informed basis, the obligation to pay fees at the hourly rate set out in the retainer then crystallised.
Costs Law Reports are published every two months and the printed issues are supplemented with cases only reported online. The full text of 140 key costs cases are summarised and indexed each year. They are regularly cited in all levels of court, including the Supreme Court. To find out more about Costs Law Reports or to subscribe, please email Class Legal, info@classlegal.com or visit the site www.costslawreports.co.uk 26
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CHANGING
HEARTS
AND
MINDS
UK SMEs account for 99.3% of all private sector businesses have significant legal needs, providing law firms with a great opportunity for new business. However, before they can win the hearts of SMEs, legal practices must first be realistic about charging and take a creative approach to engaging the marketplace as Joe Rose, City Costs Management, reports.
O
n 8 July 2016, the Competition and Markets Authority released its interim report into the supply of legal services in England and Wales. This identified three main reasons as to why the legal services market is not working as well as it should be, with regards to small businesses instructing law firms.
Fixed costs issues now dominate the ‘commoditised’ end of the market in areas such as conveyancing and probate. However, the higher up the market you go, the more variables there will be and the more difficult it will be for law firms to put a specific price on their work.
These related to the affordability of legal services, the high proportion of consumers that were not seeking to purchase legal services even when they needed to, and overregulation resulting in a lack of competition.
As we have highlighted many times, the method of charging by hourly rate is still the prevailing choice but companies still need to have certainty over how much something is going to cost and what the potential risks / benefits are to allow for complete transparency.
AN UNTAPPED, DISENGAGED MARKET
The report even states that some law firms do not see transparency in pricing or consumer feedback as being in their best interests. This cannot go on indefinitely. Law firms will need to adapt if they want to continue to grow, given the growing tendency for businesses to go to accountancy firms to deal with their legal issues, or to try and solve it on their own.
GET THE PRICING RIGHT
This involves a detailed consideration of what will be needed to bring the matter to its desired conclusion.
BE CREATIVE Another way in which we try to assist companies is to come to an agreement whereby the law firm shares the risks, particularly in litigation. There are many ways in which this can be done, including a Contingency Fee Agreement which, in its simplest terms, means that the law firm doesn’t charge or charges a discount if the desired outcome is not achieved. Another area in which this can be encouraged is to set a budget and agree with the law firm that a bonus would be paid for coming in under budget. In addition, for discounted rates to be applied in instances where the budget is exceeded.
The common thread running through In any event, it is clear that law firms must all three of these is costs, although not adapt their fee charging arrangements if necessarily in that companies cannot they want to attract small companies to afford to engage a law firm. In many cases bring their work to them instead of allowing it is the inability to determine what value the accountancy firms to take this line of has or will be derived from instructing profit. City Costs Management will continue a law firm to act on their behalf. Few to assist both law firms and companies with legal matters can be this ultimate aim. put into a win/loss, yes/ THE FEDERATION OF SMALL BUSINESSES (FSB) Joe Rose, no dichotomy, which ESTIMATES THAT AT THE START OF 2015; Chief Executive Officer, makes it extremely City Costs Management Small business accounted for 99.3% of all private sector businesses difficult for a client to determine whether they Total employment in SMEs was 15.6 million (60% of all private sector jobs) CITY COSTS have derived any real MANAGEMENT Combined annual turnover of SMEs was £1.8 trillion benefit from instructing (47% of all private sector turnover in the UK) a solicitor. As you can see from the FSB data, the number of SMEs also appears to be continuing to grow, with the total number increasing from 3.5 million in 2010 to 5.4 million in 2015. This means that small businesses are one of, if not the largest potential source of income for law firms. However, the report highlights that even though most believe that addressing legal issues is key to the success of their business, the majority wouldn’t proceed to instruct a law firm to resolve these issues.
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COSTS: BE REALISTIC TO GENERATE VALUE In order to counter this, small businesses should be made aware of the costs parameters as early as possible and ensure the charging structure has complete transparency as well as flexibility. We work on behalf of companies to ensure that the parameters set out from the outset are realistic and achievable.
IN PRACTICE
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SPECIAL FOCUS
Court of Protection
Adrian Hawley, Head of Court of Protection costs at PIC, addresses the increasing pressures that Professional Deputies and Trustees face when dealing with the SCCO, OPG and the Care Act and how collaboration – in both industry events and by working with specialists – can help overcome these challenges. Over the last 12 months I have been overwhelmed, not only with the growth of my ever-expanding team but of the commitment to training and development of the team by the firm. It has given us a more in depth knowledge of the day-to-day case management of Court of Protection cases, offering us a unique insight and allowing us to advise clients on particular problems they have faced on challenging matters. We’ve had some particularly challenging Bills of Costs to prepare and again, the feedback we received following assessments in the SCCO has been overwhelming.
I have seen a number of cases where the Office of the Public Guardian has sought an appointment of a Professional Deputy in cases of financial abuse by family members, who have held a Lasting Power of Attorney or acted as a Deputy. Overall I think the Office of the Public Guardian has defined its role in policing the affairs of the Protected Party in the last few years, culminating in its new robust approach.
The Costs Budgeting Revolution We’ve all witnessed the new costs budgeting innovation from the Office of the Public Guardian with the introduction of the OPG105 form this year.
resulting in a stress-fee approach to completing the OPG105 forms.
Working together Over the last 12 months I have attended a number of seminars and conferences dealing largely with the Court of Protection and Brain Injury matters. Two recent conferences of note were the BISWG and SFE Conferences. I’ve mentioned these two specific conferences as both stood out for their own specific reasons and also highlighted the sector at its best, when working collaboratively. Starting with the BISWG (The Brain Injury Social Work Group) conference, held at the Etihad Stadium in Manchester in June.
Initially, some of our clients had panic attacks about the form filling required and estimating future costs. I’m pleased to report that by working in partnership with a number of clients we have shared our knowledge of preparing budgets from the litigation side of our business,
The biggest change to Court of Protection costs in recent years is the increased number of solicitors who appear to be taking on this type of work. As we work for a number of Professional Deputies across England and Wales,
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The conference, ‘Beyond the Rhetoric,’ turned out to be somewhat of an eyeopener. We started off with a review of the Care Act 12 months on and then heard from a Community Brain Injury Pathway project manager from Sunderland CCG. The most moving part of the day was hearing from Julie, who cared for her eldest son who had been involved in a road traffic collision and sustained a severe traumatic brain injury. She explained the daily challenges faced by the family and her own demanding work role as an Assistant Head Teacher. What caught my attention in Julie’s story was the work undertaken by the client liaison officer at Slater & Gordon. Ruth works alongside the solicitors and helps clients and families deal with the ‘non-legal’ problems they face following serious injury. She offers support with day-to-day issues such as rehabilitation, coping strategies, access to continuing health care, budgeting and welfare. This is a truly innovative position that other firms may benefit from while benefitting the Protected Party. We also heard from Janet Illett, Deputy Official Solicitor who has headed up the healthcare and welfare team since 2013. At the Solicitors for the Elderly conference in London this June, hosted at the British Museum, we heard from a number of speakers. The line-up included a retirement address from the outgoing head of the Court of Protection, Senior Judge Denzil Lush and a keynote address from Sir James Munby, President of the Family Division of the High Court of England and Wales. We were also given an update to the Care Act and its financial aspects that have led to a review being prepared for the Court of Protection’s new regime. The talk on the Court of Protection new regime covered the OPG publication of the Deputy Standards in July 2015 and moved onto the new OPG105 costs regime. The excellent event also covered the Residential Nil Rate Band with Gill Steel attempting to unravel the new rules to take effect from 2017. Finally, Michelle Cracknell of The Pensions Advisory Service closed the event and I recommend taking a look at the informative website www.pensionadvisoryservice.org.uk.
Adrian’s Top 5 Tips for Deputies When it comes to sharing our knowledge of costs assessments and recording time I’d like to share the following:
1. THERE IS NO SUCH THING AS A LETTER IN! Remember: at the end of the application process for Deputyship or in the yearly general management costs, an assessor at the SCCO will be going through your file with a fine toothcomb. The assessors have guidelines and will not allow reading incoming correspondence.
2. PRINT THAT NOTE / LETTER! Remember: that your paper file has to be submitted to the SCCO for assessment and this will continue for a number of years to come – at least until digitalisation arrives at the Thomas More building. Missing file notes will result in time being reduced on assessment.
3. DELEGATE! Remember: the more senior the fee earner, the more you will attract attention for dealing with more junior fee earning work. Does the Deputy need to queue in the bank branch to file a new standing form? Does the Deputy need to input data in the Annual Deputy return? No and no!
4. INTERNAL COMMUNICATIONS Don’t do it! The assessors at the SCCO always refer to Costs Officer Sainthouse and the decision in Leighanne Radcliffe. Inter fee earner communications WILL always be disallowed on assessment as they do not add any value to the legal services provided.
5. ARRANGING PAYMENTS Don’t spend too much time on this process. The assessors will allow you time to pay an invoice but usually at three minutes which includes checking the invoice total, arranging a cheque and preparing to send it.
Adrian’s 30 for 30 challenge Back in 2015, Adrian took up the challenge to swim one mile in the open water at the Great Swim in Salford Quays with a colleague, Phil Glynn. They practiced and completed the mile and raised £237 between them for the BackUp Charity. For the Back Up Trust charity 30th birthday in 2016, he was pushed to do something a little bit more spectacular. Back Up named its charity event the ‘30 for 30 challenge’ with the aim to raise funds by doing an event that related to the number 30.
Our intrepid Court of Protection costs specialist decided to run, swim and cycle a minimum of a mile every day for 30 days and then undertake a 30K triathlon on 31 July 2016. His swimming buddy and Ironman athlete accompanied Adrian on his 30K, which included a 25K cycle ride. We’re delighted to announce that Adrian completed the 30K and raised £210 for Back Up in the process. His plans for next year will be announced soon!
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SPECIAL FOCUS: COURT OF PROTECTION
TRACY NORRIS-EVANS, PARTNER & PROFESSIONAL DEPUTY, ROYDS WITHY KING Emma Waddingham, Editor, spoke to Tracy Norris-Evans, an experienced Professional Deputy about the challenges practitioners have faced in light of the new OPG105 form, a tendency for some firms to take a ‘one-size-fits-all’ approach to compensation protection for protected parties and her hopes for the future. Q: What has been the most challenging element of your role as a Professional Deputy in 2016? For our Compensation Protection Team the most challenging elements in 2016 are the cases that we have taken from other firms, ones that commoditise professional deputyship work. Clients in these cases have been poorly communicated with and have had little access to their professional deputy. In addition, in these cases, there is often little transparency around financial planning, budgeting and expenditure as some firms often adopt a ‘one-size-fits-all’ approach to Court of Protection work.
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relation to costs management. We now have to complete the OPG105 form (the professional deputy fees insert). It’s interesting to witness this development as the management of professional deputy costs has started to mirror the downward pressure which has been seen in civil costs in recent years, with descriptors such as ‘reasonable’ and ‘proportionate’ being principles that are applied. Q: Is costs management a more complex element of deputyship management and what are your top tips when preparing or challenging budgets?
Where we have become the successor deputy, clients see change quickly. Clients feel more empowered and we’re very much engaged with the family as well. We take very seriously the undertakings that we give to the Court of Protection when we apply to be made the professional deputy. We will regularly meet with the client and work with the case managers, therapists and IFA to ensure that the client’s complex needs are met.
Yes, because you now have to file OPG105 with the deputy report form; a copy also has to be sent to the Senior Courts Costs Office (SCCO) when we submit our bill of costs for assessment at the end of the next reporting period (which is annually).
We’re keen to offer a bespoke service, particularly for vulnerable clients with complex injuries; those cases where the financial deputy is required to protect the compensation so that it lasts for the client’s lifetime.
The Professional Deputy Standards implemented by the Office of the Public Guardian 3a(9) provides that professional deputies must: ‘Maintain a clear and transparent fee levying policy that operates in the most cost-effective manner for the client’. This means that you have to give a lot of detail about past costs in the form to the OPG and
A significant change this year that has added to the complexity, is the shift in
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For our deputyship work, whilst we do have cases in which fixed costs apply, the majority of our work is far more complex so we typically have our costs assessed by the SCCO.
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we now have to forecast future costs as well. If the actual costs being charged is 20% above the costs forecast then the deputy has to give an explanation as to why this is. So yes, the costs side of our work is increasingly complex. Since its implementation we have given the SCCO a great deal of costs information, in more detail than has been requested. We provide all of this information upfront but there are still always questions. However, the OPG105 process is not as sophisticated as the Form H system under the CPR and has a long way to go. This is very early days! With regards to managing our costs process for the future, we have built our own software for Form H and we see the need to do the same for deputyship costs. With civil costs budgeting, we utilise PIC to prepare our budgets and to attend the Costs Management hearings. It’s likely that we will work together with this law costs draftsman in the future to prepare costs budgeting for the OPG and the SCCO. Q: Do you see a rise in the number of professional deputies; if so, why is this? Yes, we have seen an increase. Firstly because of the pressure on the legal industry, brought about by the Jackson civil cost reforms and LASPO. Certainly, with the possibility of fixed fees being implemented for multi track claims, firms are looking for other areas of work and have moved into deputyships and trusts work.
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The other reason we think there’s an increase is that the OPG scrutinises deputies more closely. For example, in instances of gratuitous care payments (also due to more complicated processes in the Court of Protection) it’s less palatable for people to act as lay deputies; they would prefer to instruct a professional. So it’s market driven and it’s client driven too; it’s an opaque process.
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Q: Is the Court of Protection sector a more complex market that practitioners expect? What happens if / when things go wrong?
There are also lots of things that go wrong. For example, you might find yourself in breach of the CDM Regulations in a house adaptation project. You may also find that you have an Anonymity Order that has been ‘breached’. The litigator might have secured the order but if it wasn’t filed with the Press Office then details might be printed about that case. The press is entitled to do that if you haven’t lodged the Anonymity Order with the Press Office. Certainly, you can easily fall foul of employment legislation in your legal relationship with carers. With all these cases, there are often periods of crisis management. Ultimately, you need professional deputies with the right blend of expertise and good decision-making because there are so many pitfalls. I suspect there will be a rise of professional negligence claims over the next few years where lawyers haven’t delivered for the client. Q: Are there unexpected elements involved in being a Deputy? Sometimes you have to be careful not to trespass into welfare decisions but you need to take a holistic approach.
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Because I’ve been practising for a very long time, I am able to identify most of my clients’ needs but sometimes there are issues you might not be alive to, such as the need for sex workers. Perhaps in the past I’ve failed to have those conversations. You have to be sensitive about these matters but you do need to explore this side of things. It’s always important to work closely with the client and in conjunction with the family and not make decisions in isolation of the client.
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We have key partners that we work with; case management companies, doctors, therapists and a panel of IFAs. As you’d expect, we have a number of cases with each of them. To manage our time, we’ll meet with them and go through all the cases to reduce travel and meeting time. You have to keep it quite tight! We even share support workers across teams.
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A good example of this is where we have been able to send a few support workers on the CCMS care certificate three-day training course and we have been able to apportion the costs between a number of different clients. This means that each client gains value from the qualification that the support worker attains but at a portion of the cost. Email communication is also incredibly valuable. At no cost, you can copy someone in ensuring good communication, providing you keep that communication protected.
Tracy Norris-Evans
You need the specialism and A experience of having dealt with Court of Protection and OPG because these cases are multifactorial. As a professional deputy, you’re often co-ordinating the input of other professionals; for example, an employment lawyer, a construction lawyer and certainly with private client lawyers to arrange pre-nuptials and Wills, etc.
Q: How do you manage your relationships with instructed experts and still keep your management costs within the best interest of the client?
Royds Withy King utilises a pyramid structure and can leverage our costs thanks to this structure. Our deputyships are managed under the umbrella of a trust corporation. The pyramid includes a Lead Director, who makes the executive decisions; a lawyer who conducts the day-to-day client management and a paralegal who completes all the administration. Interestingly, we’re just about to employ an Apprentice to process basic work, such as set up standing orders, deal with payroll etc. All these things help to keep costs proportionate. Q: How are costs budgets being processed by the SCCO? Are there any notable changes or challenges that you can see / concerns you have around costs? Our difficulty is that we are finding the court is less generous when assessing costs. A particularly good example is where we have a French client with some complex issues relating to the different jurisdictions, such as employment, construction and heirship rules.
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We have had meetings in France with the client, conducted by a Grade A and Grade B fee earner. The SCCO has slashed the Grade B time completely. We appealed it because, in addition to the fact that it’s the most complicated case we’ve ever done, there’s also a security issue, such as travelling late at night to and from the client’s home on public transport. However, the Court was immovable and disallowed the appeal. Q: With a new Senior Judge set for the Court of Protection, is there an opportunity for change? Senior Judge Denzil Lush will be an extremely hard act to follow (some would say impossible) because of his flexible, liberal and empathetic approach to managing these cases. In terms of change, watch this space!
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Aim for the Having risen quickly through the ranks of the costs industry at such a young age, we asked Jessica Swannell, Costs Lawyer & Practice Manager, A&M Bacon, about her career progression, her ambitions and her plans for the practice in the future. remember starting sixth form at Abbey College, Ramsey (near Cambridge) and having absolutely no idea what I wanted to do. I never wanted to go to University; I felt I was just an average student with GCSE grades B-D.
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Not only did I qualify as a ‘new breed’ of Costs Lawyer at just 21, I was also awarded the gold cup for the highest marks in my qualifying year. This was the defining moment in my career where all the blood, sweat and many tears had all paid off.
In 2007, my parents moved next door to Alison & Michael Bacon who at the time were the Directors of A&M Bacon Limited. At the time, I had never heard of Costs Law, let alone considered it as a potential career path.
After having my son, I quickly returned to work. However, as I was so used to working hard and studying, I felt like I needed to be more than just a Costs Lawyer. I wanted more, I wanted to continue to grow and develop.
One evening, my father returned from a good session up the pub on a Sunday and said that Michael wanted to see me about an administration / Trainee job. I instantly thought, my father had way too much to drink but he was being serious!
Reuben Glynn took over A&M Bacon in 2012 and appointed me as Practice Manager of A&M Bacon Limited when I was only 23 years old.
When I went to see Alison and Michael with my father, they explained costs law to me (which went straight over my head). I initially joined the A&M Bacon team in the administration department – a role that I found very hard (never under estimate an administrator’s role in a law firm!). Michael then took me under his wing and I started assisting him with the basic costs work on his files. He took me through a complete file journey and to this day I remember what that file looked like and its case name. Soon, it started to dawn on me what a high profile person Michael was in costs law and why some of my colleagues and his peers called him ‘the chief.’ Gradually, I picked up the costs law processes and nuances and started to visit high profile practitioners, which made me more confident. I really appreciated the opportunity I had been given.
Since taking over as Practice Manager, I have helped implement procedures and policies, gained and maintained clients and doubled the turnover of A&M Bacon Limited. I then had my daughter and returned to work full time within 5 months as I was missing my job! I have now attended many management courses and I am due to study further on the Institute of Leadership and Management. In 2015 I was highly commended as a Rising Star in the prestigious Modern Law Awards and I have just been shortlisted for Business Person of the Year in the Fenland Business Awards. I am a champion for First 100 Years of Women in Law and I am a member of the ACL Council. It really is wonderful to be recognised by such high profile organisations for my achievements so far.
They say you are meant to do something each day that makes your heart beat faster; push yourself every single day. In 2007, at the age of 18, I enrolled on the ALCD course (as it was known then). By the time I passed my first year, I started to believe in myself. I sat my ACL exam aged 21 - and eight months pregnant. It was hard work, revising for such a defining moment in my life; it was either failure or success. I studied and revised hard but I also took an interest in the way our minds work and how we absorb and remember information.
A lot of people ask me, how I achieved all this at such a young age with only GCSEs to my name. I guess you could say it is because my father enjoys a beer but truthfully, it was simply a result of someone igniting that light within me and allowing me to push myself to the limit.
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Tips for staff 1. Question everything. 2. Find a leader who will light your fire. Do anything you can to have them as your leader. 3. Understand that you are in work for a long time. Enjoy what you do and become the best. 4. Give yourself a break. You will make mistakes along the way, learn from them. 5. You are more than you actually think you are. Never underestimate your true value. 6. Reflect on all that you have learnt. Carry a book and write down something new you have learnt each day.
Tips for employers 1. You will never find the perfect individual, but you can develop key staff. Look for that little seed that you can grow into a forest! 2. It’s not always about what qualifications or fancy titles you have, it is about how hard you are willing to work for what you want. Look for motivation and someone who is willing to work hard and go the extra mile. This effort speaks volumes. 3. Continue to grow your staff. Stimulate your employees’ minds and push them. They will respect this if you explain why. 4. Treat them the way you want to be treated. 5. Human-to-Human management works best.
The key to success is continuous learning and improvement. The story has only just started for me, so watch this space!
Jessica Swannell is the Practice Manager for A&M Bacon Limited. 32
My tips for a happy, productive workplace
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A Day in the life… of an
Assistant Coroner A day sitting in the Coroner’s Court is still a new experience for Rachel Galloway, a full-time barrister who lives in Manchester with her husband (also an Assistant Coroner) and their three-year old daughter. 7:00am I am most definitely awake. I start by kicking our daughter out of bed (as she still kindly comes into our room and bed at about 5am). I then get ready for court and get Sophia dressed before our nanny arrives. My husband, James, leaves the house before 7.30am and I usually bombard him with last-minute legal/practical questions before he escapes. Sometimes he is lucky enough to have a few telephone calls from me on his way to work with further queries.
8:30am I will usually arrive at court at around 8.30am to assess what inquests I will be hearing that day. I have a short time to consider the files before the paperwork starts. There are a lot of forms for coroners to sign! Decisions have to be made on whether a post-mortem is required in any individual case and whether or not further enquiries – an investigation or an inquest – is needed. There are often last minute telephone calls, sometimes regarding witnesses and an inability to attend court at the last minute. A decision then needs to be made as to whether to take steps to ensure their attendance or whether the evidence can be read under Rule 23 of the Coroners (Inquest) Rules 2013. A few weeks ago I had a call from a Pathologist, recommending that the deceased’s heart be sent to a Pathologist specialising in cardiology in order to ascertain the cause of death. In that case, there was a suspicion of Sudden Adult Death Syndrome in a young adult and further investigations were needed. Beyond establishing the cause of death for the purposes of the Record of Inquest, it is important that these facts are established for families
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so that relatives can be made aware of any hereditary conditions so they can seek medical advice.
Working straight through… A day as an Assistant Coroner is usually a long day – I don’t stop from when I arrive until I leave the office. If I am lucky, I will get chance to have some lunch but often that does not happen; there is always something to do.
Rachel Galloway is a Barrister at Kings Chambers and Assistant Coroner for Greater Manchester South Region
I really enjoy the work. There have been a lot of changes to coronial law in the last few years (including introduction of the Coroners and Criminal Justice Act 2009, which came into force in 2013) and there are always new authorities to consider. Coronial law is a rapidly developing area of law and some inquests (where Article 2 of the European Convention on Human Rights is engaged and/or where a Jury is required) will last weeks or months and involve many legal and factual issues.
The months ahead I hope that, over the next year or two, I will have gained the experience to investigate these complex cases and hear such inquests. Whilst I have been instructed in many such cases in my role as a barrister (instructed on behalf of an interested party), this will be a new challenge for me, one that I look forward to.
A CLEAR FOCUS In my short time as an Assistant Coroner I have heard many cases, often where persons have taken steps to end their own lives, road traffic collisions and deaths following falls or following hospital care. Every case and every family is different. Some families find the inquest process helpful and some don’t. There are limitations on the inquest process and the coroner can only investigate how the deceased came by his or her death. The focus should be on the family of the deceased and addressing their concerns so far as possible. It is the nature of the job that many cases are sad and dealing with deaths of young persons can be particularly challenging.
Being a Coroner is very different to being at the Bar and I look forward to making important findings and decisions, although – I have to say – I have found that making judicial decisions is much more difficult than it looks!
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How to Manage
Spinal Cord Injury Symptoms The Brain & Spinal Injury Handbook provides Partners in Costs readers with an essential guide on how to spot and handle emergency symptoms associated with Spinal Cord Injuries. Symptoms of Spinal Cord Injury
Emergency Symptoms of Spinal Cord Injury
For spinal cord injury victims, the time that elapses between injury and treatment can be critical to the outcome for the patient. Prompt medical treatment in some cases can reduce the severity of an injury if received soon enough after trauma occurs. For these reasons, it is important to recognize the symptoms of spinal cord injury and to act promptly.
Severe spinal cord injury is not always immediately obvious. Paralysis or numbness can develop gradually from swelling or bleeding in or around the spinal cord. Anyone receiving significant trauma to the head, neck, or back should be medically evaluated at once for damage to the spinal cord.
Signs of spinal injury after an accident may include:
Pressure in the head, neck or back
Intense back pain
Paralysis, lack of coordination, or weakness in any part of the body
Permanent Symptoms of Spinal Cord Injury
Loss of sensation or numbness or tingling in the hands, feet, fingers or toes
Complete Spinal Cord Injury
Twisted or oddly positioned neck or back
Impaired breathing
Incomplete Spinal Cord Injury
The nature and level of impairment from spinal cord injury depends on the location and severity of the injury. Paralysis of the body occurs below the level of the injury. If you suspect that someone has suffered an injury to the spine, it is extremely important not to lift or move the injured person. It could cause permanent paralysis and other serious complications. Paraplegia – affecting part of the trunk, the pelvic region, and the legs, results from injuries lower on the spine. Quadriplegia – (also known as tetraplegia) results from injuries higher on the spine and affects the trunk, arms, legs, hands, and pelvic region.
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Paraplegia
Quadriplegia also know as tetraplegia
Paraplegia
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Quadriplegia also know as tetraplegia
Loss of control of bladder or bowels
Trouble walking and balancing
Keep in mind... Keep the injured person still. Try and support neck with towels or clothing. Prevent the person’s head and neck from moving until the ambulance arrives. DO NOT administer any medication, especially if head trauma is also involved.
Call 999 for the Emergency Services. This guide is an excerpt taken from Bold Media’s annually published The Brain & Spinal Injury Handbook 2016: issuu.com/boldmedialimited/docs/2016_ handbook_complete
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We’re exceptionally proud of our charitable activities and social engagement this season. We thought we’d share some of our top tweets with Partners in Costs readers. We’re committed to sharing the highest quality costs practice and industry news so if you don’t already follow us, look for @PIC_legal on Twitter and get involved!
@PIC_legal: ICYMI: Ian Moxon, Costs Lawyer at PIC, talks about Civil Litigation Costs in England & Wales http://bit.ly/2bC49DW #legal #law #costslaw
PIC staff raised £550 for @backuptrust
@SilvaGeoff: A fantastic evening for @babylifeline with @PIC_legal @HughJamesLegal @penn_clinneg @FtAnsteyInjury @ReynoldsLynda @JessicaaPie
PIC staff raised £550 for @backuptrust this summer to pay for 11 people with spinal cord injury to attend Back Up’s wheelchair skills training sessions in hospital, led by experienced wheelchair users! #Proud
PIC have proved themselves to produce accurate and detailed bills, resulting in near 100%recovery in major catastrophic injury claims. They are now our first choice of costs draftsmen in large scale claims. Partner, DAC Beachcroft LLP
@PIC_legal: Kind words from our excellent clients are always welcomed! #MondayMotivation #Legal #Law #CostsLaw
@LangleysMedical: Katherine, a Solicitor in the department, enjoyed her day with @PIC_legal on Wednesday! @ReubenGlynn
@PIC_legal: @AdrianPIC_legal completes month long 30 for 30 1 mile a day challenge followed by a 30K triathlon for @backup
@PIC_legal: @ReubenGlynn completes the British 10k in support of @londonlegal! Support & donations are ongoing http://bit.ly/29PdFWh #Law #Legal
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@PIC_legal: Out & about: @AdrianPIC_Legal at the @HeadwaySWLondon fundraising dinner with Claire Roantree from @Simpson_millar
@EspirituKat: Thank you @PIC_legal volunteers getting our dragoneers ready for the @backup trust #dragonboatrace
@PIC_legal: We take #MondayMotivation pretty seriously! Being ambitious, motivated & flexible in every task we undertake http://bit.ly/2cGpxd9 #legal
@PIC_legal: Today we had the pleasure of presenting @cbituk a cheque for funds we raised during our roadshows! #childbraininjury
@PIC_legal: Philip Glynn, Costs Consultant, PIC, played the... Magna Cart Cup – 100 holes of golf in one day – to raise £157.65 for the London Legal Support Trust! Phil scored 89, 84, 89 across three rounds and also won a trophy for the best eclectic score! #GolfHero
@PIC_legal: A big thanks to our Paul Haywood for taking part in some in-house #HR videos for our lovely staff! #FridayFun #Legal
@PIC_legal: Happy #NationalFitnessDay!
Here’s just a few times we’ve been sporty this year... www.pic.legal
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YOU ASK…
The Rt. Honourable Judge Smyth-Judge
RETIRED ND NEVER A R A B E H T T A S R A E 55 Y Brian, 69: “What was in the mind of the people who introduced this ridiculous rule of proportionality?” Ridiculous? This rule was carefully considered by the finest minds in England, Wales and the Commonwealth. Someone must rein in the excesses of lawyers or, much like that twisted woodland vermin the Grey Squirrel, they will run rampant; driving justice out in favour of collecting all of your nuts to line their wretched suburban nests! ‘Ridiculous’ indeed. Mizha, 30: “Fixed costs; yes or no?” Yes. A wholehearted, knee slapping, trouser dropping, dressageadmiring, yes! What is the alternative? A system of selfregulated, mutually beneficial inter-party negotiations with the Courts acting as a barely-involved eleventh-hour forum for debate and decision! Madness. We may as well all be wearing animal skins. Nothing to do with justice of course, it just means one can spend less time dealing with the tedious costs wranglings of lawyers and more time at the crease.
A DROP SPILT
However, when one considers the impact of negligence by those bound by ‘Victus quoque rationem ad aegrotantium salutem pro facultate, judicioque meo adhibebo, noxamvero et maleficium propulsabo,’ then one must confess that one’s stomach churns. Yes, one employs people to keep the proles away but I am not cloistered against the trials of those who suffer under the scalpel of medical incompetence. These victims require expert legal advice to secure not only compensation but to ensure that these mistakes are not repeated; and their opponent is a public body, albeit with one bureaucratic foot firmly daubed in Moscow red, with the resources to stall, outlast, prevaricate and bully all but the most resourceful and committed of the profession. Fixed costs at this level will only be another tactic available to the medical profession and, one feels, little more than a straw man in the government’s ongoing efforts to save money. In short and at risk of this evolving into a political dissertation, these proposals are an offence to the oath, “I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will”. With that, one needs a Versos 1891 and a cold compress.
Alex, 40: “How would you measure fundamental dishonesty?” It is all about the context. Clearly when one is enjoying an evening at Whites and a member is ejected when he is actually a she, then they are fundamentally dishonest. However, when one is dealing with the lower classes, they have a natural propensity towards dishonesty; especially when there are a few shillings at risk so the test is somewhat diluted. If they can’t hold my gaze, their personal hygiene is lacking or they arrive in Court dressed as if going to bed, then they are invariably fundamentally dishonest. All the rest are just nugatory liars. Waleed, 30: “Do you think the mooted fixed costs limit of £250k is reasonable for clinical negligence matters?” When one considers parasitic arguments pertaining to sore backs or neck ‘problems’ then fixed costs are to be embraced as one would embrace one’s secretary at the MOJ Christmas party.
Peter, 26: “Lord Justice Briggs has said online courts will eventually become the compulsory forum for resolving cases within its jurisdiction. Do you agree?” Online? We have come a long way from Dec 17 1903 but as far as I’m concerned the only thing that should use the web is a spider. One needs to smell the brandy on their breath to know whether their hearts are as black as their teeth! Karen, 44: “Do you think the appointment of Liz Truss is a step forward for equality and a good thing for the profession?” She is a fine looking woman (good hips) and one wholeheartedly endorses her appointment and wishes her a long and glorious career. Of course, one hopes that she will focus her attention back on the 2004 Hunting Act so that one can finally use the farm one acquired last year.
If you would like to ask The Rt. Honourable Judge Smyth-Judge a burning question in our next issue of Partners In Costs, please send an email to info@pic.legal 38
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BARGAIN BOTTLES BY PROFESSOR DOMINIC REGAN
BARGAIN BOTTLES Professor Dominic Regan downs tools and picks up a glass or two of the finest, best value wine offerings to enjoy this season.
Tastes change with the weather. At this time of year,the following wines come into their own. SURPRISINGLY, RED
PRETTY IN PINK
Red suggests heavy but Beaujolais is just brilliant in the late summer months. It is the red wine that comes into its own when chilled. The range is wide with top-end, expensive bottles named after a specific area such as St Amour. However, the lower range of Beaujolais Village wine is fine. All major supermarkets stock it. Go young and look for, say, 2014.
Pink is a pretty colour but is not generally flavoursome. Bandol in the South of France produces good wine but north of a tenner. Marks & Spencer stock (at £18) the Miraval, grown on the Brad and Angelina estate; it is good and so it should be.
A light red that goes with everything and will not upset anyone is the Waitrose Cuvée Chasseur (£4.99). Smooth and tasty. The Australian Stamp red range is good value in supermarkets when on offer at about £5 but do not venture in if it’s nearer the £7.50 mark. Pinot Noir is grown all over the world. French is expensive so look for Romanian (at Sainsburys), Chile or New Zealand. Raspberry is the key flavor here. It is not alcoholically heavy and is so flexible that it would work with chicken, fish or by itself. In this category, again look for something young, within the last three years. If you want true old school Red Bordeaux then give Marks and Spencer a visit. Whoever buys their French wine is clued up. The basic Claret is fine as is Waitrose Claret too.
Over the last few weeks, Marks & Spencer has continuously run a ‘buy 6, get 25% off’ deal. Weakness in the pound will push prices up so buy whilst you can.
FIZZ, POP, POUR Tesco Finest Prosecco (£8) recommended in this column months ago was a recent tip in The Telegraph and spot on. Aldi French sparkling wine from France (£7) is solid too.
The Bluff Hill at Marks & Spencer and its South African Graham Beck are impressive Champagne lookalikes.
WONDERFUL WHITES PIC’s Reuben Glynn recently directed me to the Marks & Spencer French Petit Chablis 2014, a luscious white. On the back label, look for the number 703. That is the very best and currently at £8. Sainsbury’s and Aldi both do a French Chardonnay (Limoux) that is like Burgundy but at £7 or £8, costs far less. If you like Sauvignon Blanc then ‘ The Ned ‘ from New Zealand is good on promotion at say £8 but I would not pay more.
Dom’s Top Tip
If you are going to France this autumn then go and visit any large supermarket or hypermarket. You will find decent white and red for no more than £4 per bottle. Duty on wine is much lower; in the same way that smokers will discover Belgium has the lowest prices in Northern Europe.
BOTTOMS UP!
(N.B. All prices correct at the time of writing.)
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