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Costs Update

Proportionality:

Since the decision in BNM v MGN Limited [2016] EWHC B13(Costs), 2 Masters have now ruled that the decision to apply the new proportionality test to additional liabilities was incorrect. Master Brown in Murrells, Estate of v Cambridge University NHS Foundation Trust [2017] EWHC B2(Costs) and Master Rowley in King v Basildon & Thurrock University Hospitals NHS Foundation Trust [2016] EWHC B32 (Costs) both ruled that to apply the proportionality rules to additional liabilities would leave those who entered into pre-commencement agreements in a considerable prejudicial position as these were entered into with the expectation that additional liabilities would continue to be recoverable.

BNM v MGN Limited [2016] is due for Appeal in October this year.

Fixed Costs:

The government reported plans to extend fixed recoverable costs to low value clinical negligence cases. There is further concern about the expansion of the FRC scheme and the impact on access to justice and viability of these areas of work.

As part of Lord Justice Jackson’s review of the FRC scheme, the Association of Costs Lawyers has warned that the proposed expansion is too soon and that the impact of the current regime has not yet been fully assessed. Other mechanisms to restrict costs, such as budgeting and the new proportionality rules, are yet to be reviewed.

Legal Aid:

Review of LASPO:

Nearly 4 years after the introduction of LASPO, the government has announced a review process and plans to submit a post-legislative memorandum regarding the effect of the changes, further to which work will commence on a full post-implementation of legal aid. Many feel that changes brought in by LASPO have restricted access to justice and the reductions made to the legal aid fund should not have been made. There are now fewer applications for legal aid being granted and restrictions on expert fees have resulted in the potential for un-equal footing between parties, depending on their funding method.

Appeals on CCMS:

It has been 12 months since the mandatory use of CCMS. Whilst there have been some improvement to the system, many firms continue to note concerns about delays caused.

In order to Appeal an assessment, an Appeal Bill must be created and submitted. This will include only items which you are appealing and provide a narrative of your justifications. There are procedural difficulties caused by the Appeal Bill no longer mirroring the original bill as item numbering will change. Therefore, your narrative should include clarification of these changes.

With regards to appealing enhancements, a different procedure is in place. The LAA has provided a QuickGuide for this, however this is not readily available. Please contact us if you wish to obtain a copy.

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