Ellis Grant

Tony Girling concludes by peering into his crystal ball for signs of the impact on costs professionals of the recent consultation paper on the claims process; especially the expansion of fixed and predictable costs. Andy also gets to ask the question he always wants to ask at costs conferences - and receives some reassurance.

In PodCost 2 Alex Hutton sounded a warning about the enforceability of discounted rate CFAs that also contain a success fee. As predicted, Tony Girling fights his corner on the efficacy of such agreements - provided they are drafted properly!

Whilst it has been fairly quiet in recent months on funding issues, Tony Girling has spotted that there is a growing interest since Arkin v Borchard Lines in the hedging of litigation risk through third party funding

The new Code renders mandatory what was previously exhortatory. Tony Girling takes a hard look at the implications.

In a related discussion Tony considers whether paying parties on detailed assessment will look to reprise the arguments in Garbutt v Edwards.

The trio of PodCost recordings on costs information concludes with a warning against assuming that sophisticated clients can be left to request costs updates. Tony highlights the recent decision of Master Rogers in Mastercigars v Withers (transcript available on Lawtel)

Rule 9 of the new Code deals with referral fees - including the disclosure to the client of the amount of the fees. Tony Girling discusses the new requirements and how they might be perceived by clients.

Conflict of interests has been largely redefined (and to an extent relaxed) within Rule 3 of the new Code. Tony Girling explains the changes and the requirements for the construction and maintenance of “information barriers” under Rule 4.

Tony Girling discusses client care requirements of the new Code. These include the need to set out your understanding of the client’s objectives at the outset and the various options available to achive those objectives - easier perhaps with contemplated litigation than with non-contentious work.

Rule 5 of the new Code deals with business management. Who is qualified to supervise? Tony Girling has the answers

The new Code comes into force on 1 July 2007. Tony Girling explains the background, the new terminology and key changes to existing practice.

With the new Solicitors’ Code of Conduct about to come into force, what better time to interview Tony Girling, former President of the Law Society, and widely respected trainer and commentator on law firm management, client care issues, costs and funding.

Andy caught up with Tony at the Cafe Royal on Monday 18th June 2007. PodCost 3 takes the form of essential guidance on the new code.

Andy thanks Alex Hutton and looks forward to Podcost 3 in June 2007 with Tony Girling (especially now he has learned how to upload the darn things!)

CFAs and CCFAs incorporating discounted rates when you lose and success fees when you win are said to represent a good deal for the client and the solicitor.

Alex Hutton and Andy Ellis discuss how success fees might be calculated and what could go wrong if success fees are too high

Alex Hutton provides useful advice to LLPs regarding existing CFAs and CCFAs - Novate or Assign? What are the pitfalls?

Alex Hutton and Andy Ellis consider the effects of Gaynor, a curious decsision of the Court of Appeal which gives an unexpected escape route for non-compliant CFAs.

Full citation and link to judgment:

GAYNOR V CENTRAL WEST LONDON BUSES LTD (2006)

[2006] EWCA Civ 1120

Alex Hutton discusses the implications of the recent Court of Appeal decision in Willis. Full citatation and link to judgment:

BRENDA WILLIS v NEIL ALICK NICOLSON (BY HIS MOTHER & LITIGATION FRIEND BETTY NICOLSON) (2007)

[2007] EWCA Civ 199

On 4 May 2007 Andy met with Alex Hutton at Hailsham Chambers to talk about four current costs topics

One of the more interesting CA decisions to emerge in 2007 is Lahey -v- Pirelli Tyres Limited.

Paying parties had been having a rough time trying to raise conduct points on detailed assessment since the CA in Aaron v Shelton reinforced issue estoppel principles and discouraged attempts to obtain a partial costs order via the back door of detailed assessment. The time to raise conduct points against the successful (or partially successful) party was in front of the trial judge, not the costs judge.

Now in Lahey, the lines appear to have softened, at least insofar as deemed costs orders are concerned (acceptances of Part 36 offers, discontinuances etc).

Not only did Dyson LJ allow for the possibility that a costs judge could impose a percentage reduction on conduct grounds (provided he did so as part of the assessment and not in advance of it), he also provided encouragement for paying parties to seek swingeing reductions under CPR 44.4(1) in approriate circumstances.

The example given was an entitlement to disallow all post-issue costs as unreasonably incurred when the costs judge considers that the claimant acted unreasonably in refusing an offer of settlement made pre-issue.

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Once in the main Podcasts page there is a menu box on the right hand side headed Quick Links. Select Power Search, in the title box that appears enter Podcost and hit the Search button on the far right.

Then choose Subscribe and that’s it. Future PodCosts will automatically download to iTunes and can be played via an iPod or on your computer. You can unsubscribe any time.

The costs team at 39 Essex St

Sign off and Happy Christmas