Back to Basics – how to present your file to the SCCO
As some of you reading this may be aware, these past few months have seen me moving firms and I am now up and running at A & M Bacon, heading up their fast expanding Court of Protection Department.
I am delighted to have joined such a long established and renowned costs practice and am looking forward to delivering top service to new clients nationwide.
As a result of my move, I have spent the majority of this year getting back to basics; doing what I like best, why I started all this many years ago; drafting Court of Protection bills of costs!
My focus has always been on drafting bills and remaining at the coal face. I feel this puts me in the best place to advise on trends emerging from the Court of Protection Section at the Senior Courts Costs Office (SCCO). Trends? Maybe we should call them reductions! But moreover, advising on the pitfalls to be avoided to ensure your costs recovery is maximised.
I have been drafting many bills over the past few months for many different firms. I have seen various ways in which client firms present their files and record their time. I thought that I would go back to the very beginning and have come up with a couple of pointers outlining some of the very basics of file presentation and time recording to please the court and ensure the time spent on quantifying and assessing your costs is minimised. I daresay most of the content will be second nature to most, but there may be the odd tip here and there you find serves as a useful reminder.
How should I present my file?
There’s a simple answer to this question………logically!
I have worked on a number of files where clients have chosen to present their files based on the parties upon which the work has been undertaken (i.e. in order of parties). The court seems fully accepting of this. However, I would suggest that you remember to file work notes, letters and calls in chronological order, in case the court needs to inspect a letter or file note.
Another common pitfall in presenting your file this way is that sometimes it is not always easy to know where to file a document or attendance note. I have seen several matters where documents have been copied. Do remember the Costs Lawyer will not know your file as well as you and it is best to ensure copies of documents are not copied to other sections of the file. This will reduce the risk of duplicate items being included in your bill and ensure that the protected party (P), pays only what is reasonable.
In my experience, most of our clients simply present their files in chronological order. This is entirely logical and ensures the court will be able to easily locate attendance notes and/or supporting documents.
It will make the life of the costs officer easier if you can ensure file notes are filed in order. The costs officers are, we understand, under strict time pressures in which to assess your bill. They therefore will not have time to trawl through a file looking for an attendance note and if they cannot locate what they need, there is an increased risk your time will be reduced significantly, or even disallowed entirely!
Many firms also open new files for each deputyship year. This assists in record keeping (the costs recovered against the time recorded can be easily established and recorded) and breaks the matter down into neat “sections”. This also prevents the need for voluminous files to be sent to and from the court.
Top Tips on file presentation
- Ensure file notes and documents are filed in chronological order so they can be easily located by the costs officer if and when required.
- Ensure your file is clearly labelled so the court knows which file it needs when assessing the bill of costs.
- Try to avoid filing duplicated documents which will reduce the chances of an item being included twice.
- You may wish to flag up longer attendance notes (for example a note recording a lengthy meeting) to ensure the costs officer will be able to locate the note quickly if required.
- Ensure attendance notes are available on the file, just in case the court needs to be inspect them. If a note is missing or the costs officer cannot locate evidence of the work undertaken, they will reduce or disallow the item accordingly.
- Files should be neat, tidy and appropriately bound to ensure file notes and documents are not lost.
A & M, always flag up to our clients any missing notes prior to assessment, to ensure the same can be provided to ensure a complete file.
Do I need to lodge documents with the court?
This is a slightly tricky question. Whilst on more straightforward matters, the inclusion of documents does not really add significantly to the volume of the file, on more complex matters, boxes of documents can add to your files.
My advice here is that we do not wish to bombard the court with reams and reams of papers and documentation. We suggest that if you choose to keep a separate documents file, this is not required for the assessment. However, it is worthwhile bearing in mind when recording time for working on documents to state, within the time record, the length of the document, so the court can appreciate the need for the time spent on a certain document, and therefore increase the likelihood of the item being recovered as claimed.
What about paperless files?
This is a question I am often ask and periodically raise this query with the court. As nice as it would be to be able to submit an electronic file (whether by CD/DVD or memory stick), due to cyber security issues, virus protection and compatibility issues, the court is currently unable to accept files presented in this way, at present. You will be required to print of your file if you are paperless.
That said, if you are a paperless office, and record your time onto a ledger, we will be able to draft your bill from the ledger and the CD/DVD file. This will save you having to courier your entire file to a Costs Lawyer and once we have completed your draft bill, you can simply print your papers required for assessment and lodge the bill with the court.
Paul Cruickshanks, Costs Lawyer & Head of Court of Protection
Post LASPO recoverable clinical negligence after the event (ATE) premiums; what is the present position and what can be done to assist in recoverability?
Where are we up to so far?
A carved out exemption to the end of the recoverability of additional liabilities is the ability to recover an ATE premium in relation to insurance covering the costs of expert report(s) concerning breach and/or causation in clinical negligence proceedings where the damages are more than £1, 000.
Sir Rupert’s Jackson recommendation, within his Review of Civil Litigation Costs, that the recoverability of ATE premiums be abolished was not accepted, neither were his recommendations for what should happen in the event that there was to be any recoverability maintained. The Government acknowledged the specific concerns in relation to the funding of expert reports in clinical negligence cases, and the need to provide a means of funding these to ensure that meritorious claims could be brought by those who cannot afford to pay for these reports upfront.
Pursuant to s.46 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”) there was the introduction of s.58C of the Courts and Legal Services Act 1990, which allowed for the recovery of such premiums from 1 April 2013. There followed the Recovery of Costs Insurance Premiums in Clinical Negligence Proceedings (No.2) Regulations 2013 (2013 No.739). Other than these statues, if you look in the White Book there are not any provisions or guidance dealing with the assessment of these premiums. The reason for there being somewhat of a lacuna here is that the recoverability of these ATE premiums was not part of the package of the Jackson reforms. Lord Justice Lewison encouraged the Rules Committee to deal with this lacuna at paragraph 79 of Peterborough & Stamford Hospitals NHS Trust v McMenemy, and Reynolds v Nottingham University Hospitals NHS Foundation Trust  EWCA 1941 (Civ), stating:
- “I think that it is unfortunate that the Rules Committee took the view that there was no need for rules or practice directions dealing with the recovery of ATE insurance premiums in clinical negligence cases; and would invite them to reconsider the question. At the moment, however the pieces of the jigsaw puzzle are manoeuvred they do not all fit properly.”
We know that the ‘new’ proportionality test, as detailed by CPR Part 44.3, applies to such premiums – with reference to paragraph 62 of McMenemy. However, generally there is little guidance upon the application of the new proportionality test. We know that CPR 44.4(1) provides the court must take into all the circumstances when considering costs, which I would aver cannot exclude the financial risk to the insurer and concerns regarding ensuring continued access to justice. There are still the same policy considerations as noted by the Supreme Court in Coventry v. Lawrence (No.3)  UKSC 50:
“ATE insurance was integral to the fundamental objective of improving access to justice in civil litigation. A premium that was reasonable in amount (having regard to the litigation risk) was necessary and, therefore, proportionate”.
We know that insurance can be taken out at the outset of the case, per paragraphs 74 and 76 of McMenemy, with the policy considerations in Callery v Grey  EWCA Civ 1117 in this respect still being relevant.
If you are practising in clinical negligence costs then you will probably be aware of stay requests coming in from Defendant paying parties in detailed assessment proceedings seeking to await further proceedings in the Court of Appeal, and such matters were alluded to in the McMenemy at paragraph 78, when it referred to another test case to deal with quantum. The cases being referred to are West and Demouilpied v Stockport NHS Foundation Trust (Court of Appeal references A2/2017/0928 & A2/2017/0930).
What are the West and Demouilpied cases about?
West and Demouilpied had permission to appeal given in July 2017, for what is the second appeal. They concern block rated premiums provided by ARAG, with the recoverable element of the policy being £4, 800.00 of the total policy cost, and the cases settled for damages of £10, 000.00 and £4, 500.00 respectively. The appeals are listed for hearing before the Court of Appeal in October 2018.
In West the District Judge allowed £2, 500.00 for the premium, and on the first appeal HHJ Smith held that ‘insofar as the judgment was based on an “instinctive” view that the premium was unreasonable, the District Judge was not entitled to proceed in that manner’. However, it was noted that that was not the only basis for his decision, and it was held that ‘on the facts of this case and given the nature of the challenge to the premium, the material produced by the Defendant was sufficient to satisfy the evidential burden’ and expert evidence was not required, with the appeal being dismissed.
In Demouilpied a Deputy District Judge allowed £1, 982.20 for the premium on the papers, and a different Deputy District Judge allowed £650.00 at an oral review hearing. HHJ Smith considered that the DDJ was entitled to consider the proportionality of the ATE premium in isolation, that he took into account certain factors he was entitled to as part of “all the circumstances” of the case, and he was entitled to find the premium was disproportionate. However, the conclusion that the DDJ ‘sought in effect to calculate premium’ was held “both inappropriate… and potentially impermissible”. Despite the findings, the allowance for the premium was considered within the ambit of discretion and the appeal dismissed.
Crystal ball gazing
So, what can we expect from the Court of Appeal, following a reserved judgment? Well, I don’t imagine that we will be given any one size fits all guidance upon proportionality, there are simply too many variables to do so.
We have seen the Court of Appeal give guidance to deal with recoverable ATE premiums before, such as in the seminal case regarding pre LASPO ATE premiums; Rogers v Merthyr Tydfil County Borough Council  EWCA Civ 1134 which A&M Bacon Limited were involved in. Paragraph 117 of that judgment became what was paragraph 39.2 of the Costs Practice Direction. However, I doubt the Court of Appeal is going to want to stray too far into such matters, given the clear statement in McMenemy that such is a matter for the Rules Committee. That said, the grant of permission to appeal was with regard to there being at a divergence of approach at first instance and a measure of confusion that we can expect the Court of Appeal to look to put right.
I suspect that the ATE market is as competitive as ever as between the various insurers; and I cannot imagine that solicitors are going to want to recommend an ATE premium to a Claimant that they think will not be recoverable upon assessment, or where there would be a strenuous challenge to the premium. However, Lord Lewison commented, at paragraph 49 of McMenemy, that “I am sceptical about the submission that ATE premiums can be controlled solely by market forces.” So perhaps there will be a more detailed review of the ATE market in West and Demouilpied, like there was in Callery.
I do not consider that the statement at paragraph 117 of Rogers has been in any way diminished over the past decade in relation to the workings of the insurance industry and what evidence has to be given to the court upon assessment when challenging an ATE premium:
“District judges and costs judges do not, as Lord Hoffmann observed in Callery v Gray (Nos 1 and 2)  UKHL 28 at ;  1 WLR 2000, have the expertise to judge the reasonableness of a premium except in very broad brush terms, and the viability of the ATE market will be imperilled if they regard themselves (without the assistance of expert evidence) as better qualified than the underwriter to rate the financial risk the insurer faces.
There are still the same policy considerations in place as applied at the time of Rogers regarding there being the need for access to justice, hence the recoverability of such premiums being maintained. This is supported by the comment at paragraph 77 of McMenemy referencing paragraph 117 of Rogers. We have seen such policy considerations applied in cases such as Plevin v Paragon Personal Finance Limited  UKSC 23. However, how does such sit with the new proportionality test, which these premiums have been brought into, as block rated premiums have no such specific case consideration. Perhaps the Court of Appeal will have their shoe horn out – it is not an easy fit.
Is it unfair to Defendants? I would suggest not, the issue was considered and Jackson’s recommendations specifically rejected. In the majority of won cases the paying party is the NHS, as in the cases under appeal, and the Government’s (or tax payer’s) money – which does seem a little odd that they are seeking to argue against Parliamentary intentions. Yes, costs are rising for the NHS, but costs arguments will only be adding to this and will invariably lead to increased premiums. It needs to be appreciated that block rated premiums are not set with reference to the specific case, that ATE insurance by its nature only applies in limited cases and that the ‘winners’ have to pay for the ‘losers’ for the system to work, with bespoke policies always being more expensive.
What can be done now to assist in recovery?
My key recommendation to the fee earners conducting the case is to write a brief file note at the time that the ATE premium is taken out to say why, with reference to what is known when the premium is taken out, the ATE policy is considered appropriate based on the case facts. Say, with reference to the anticipated quantum of damages and the risks of the case, such as the Defendant being unlikely to admit liability or causation being perceived to be difficult. Yes, I appreciate that is on top of all the other obligations in relation to funding, however spending 6 minutes on this at the relevant time can save a lot of time and costs at the detailed assessment stage, and help ensure recoverability of the ATE premium.
Another thing that can be done is to have the senior fee earner that deals with the overall selection of the ATE provider prepare a generic statement detailing when the ATE review was undertaken, what was considered, and the reasons for the selection of the particular insurer. That can then be used across all cases insured; it’s likely a huge time saver in the long run. I would suggest that it is good practice to prepare such a statement to comply with what was paragraph 39.2 of the former Costs Practice Direction.
Caroline Cousins, Costs Lawyer of A & M Bacon Limited – July 2018.
It is Mental Health week 2018 and this years subject is ‘stress.’
Did you know, over the past year, almost three quarters (74%) of people have at some point felt so stressed that they felt overwhelmed or unable to cope. The survey, commissioned by the Mental Health Foundation and undertaken by YouGov, polled 4,169 adults in the UK in 2018.
While stress isn’t a mental health problem in itself, it often leads to depression, anxiety, self-harm and suicide. It can also lead to physical health problems such as cardiovascular disease and joint and muscle problems.
Here is a brochure on stress and how to cope stress-are-we-coping
“it’s 8 degrees & cloudy with spells of drizzle” was the announcement as the plane approached Heathrow – it was hard not to laugh given it is/was spring – old Blighty hadn’t changed at all. The q is/was, have I?
Just shy of 6 months had passed since I’d departed for my trip down under (Haribo & phrasebook in hand thanks to secret birthdays – yes, phrasebook – it’s not quite as bad as heading to the north of England etc but it at times it can seem like a different language down there).
A 3 week trip to watch the Ashes & experience Melbourne at Xmas & Sydney at new year had snowballed into 6 month jaunt for a variety of reasons.
I’d had the odd weekend travelling alone but had not spent a prolonged spell away from friends & family since bobbing off to uni 10 years previously – I’d grown up a lot at uni & wondered whether 6 months in a new environment(s) would result in something similar (not sure you can really grow up in your 30s, mind).
I opted to keep a note/diary of what I got up to & my thoughts daily. I haven’t gone through this yet, save for a note that I made when I skipped across to kiwi land which was c ½ way through the trip & consisted of my thoughts to that point. It could be the most important thing I gained from my time away & so it seemed sensible to use bits of this note as a foundation for this piece (permission granted for many peeps to stop reading now).
“I have realised that there are many things that I no longer do or have not achieved that I enjoyed or wanted to do when I was younger. There are also several skills/goals I have not achieved. Some appear to be only little things but to me, they all serve as examples of what is lost when the “real world” hits & the 9 to 5 (or 6, 7, 8) becomes the norm & focus (hardly surprising when it forms 5 days of the week, at least, mind). It’s too easy to get into a routine of going to work, cooking dinner, watching TV (etc) for a couple of hours to “switch off” & sleeping before doing the same over & over.”
Originally, I was puzzled when peeps hadn’t done this or that despite wanting to, but it became evident that it is v easy to make excuses not to do something (money or time, generally) & I had been guilty of it (until I had made the decision to go). As the trip went on, it became easier to go, “yeah, let’s do it” rather than looking for a reason not to – there’s no way I’d have been pushed out of a plane had I continued to look for a reason not to do so.
“Whilst I have met a lot of peeps on the way (some I hope will remains friends & others I’m glad I’ll never see again), solo travel has resulted in a lot of self-reflection. It makes you trust yourself & realise what you like doing/seeing/experiencing.”
One of my main gripes was being told I should do X, Y & Z from someone who I’d met in a dorm room or over a ridiculously priced beer (worse than London down there, & it’s generally weak) so didn’t know me & couldn’t tell whether I would appreciate or gain anything from those suggestions. It was about me – I had to find those places & do those things that suited me & not those that I was told I should do/see.
Now, I found that some of the places I went to & things that I did were shit disappointing, but it provided some strange self-satisfaction that I had discovered this on my own without guidance from the cheese loving German or the posing Frenchman. Had I not done this, there were many things that I wouldn’t have seen or done.
A need to trust one’s decision is strangely uplifting. Doing something that not many (or no one else) does or has not recommended is a strangely uplifting feeling. Equally, walking away from something can be just as rewarding.
“Further, with so many things going wrong that are beyond control (buses/flights being late & phones breaking etc), it is essential to find a positive in every day.”
Nothing is worse than negativity (verbal or non-verbal). It is/was very draining but unfortunately the individual person/people often don’t/didn’t appreciate the impact it has on others & the environment it can create. This is the case in every situation & can be applied to the office where pressures & deadlines etc mount.
According to folk I met along the way, the Brits have a reputation for being negative & moaning. Having spoke to several Brits also, I can see where this unflattering stereotype comes from – 1 bloke (he must have been around 20) made it sound like the world was coming to an end because he had to wait 1 week in a small town for the bus his mum had booked him on.
However, I found that it wasn’t necessarily always other peeps that created negativity – I could do so in my own company just by seeing or doing something that I didn’t like/enjoy.
I found the simplest way to avoid the negativity & ultimately, becoming frustrated/annoyed etc, in both situations, was to simply walk away & not dwell on it. Perhaps easier said than done at times, but there is always a positive in the day, even if it seems trivial or minor. Further, it helped to look forward to the next day which would invariably be better.
I had originally thought about sharing the following note via LinkedIn or something whilst still on my travels but thought again – I’d have become one of those self-righteous guys who think they know best. Now, it is just a message to myself (though I appreciate the somewhat hypocritical nature of sharing it in this piece):
“Thus, I urge everyone that reads this to take some time out, be it an extended holiday, a long weekend, a cup of tea or a long spell on the toilet (some folk love that for some reason), to really think about what makes/made you happy & then make a concerted effort/plan to incorporate that/those things into the here & now (if it/they aren’t already).”
At the end of the day, if you’re not ‘really’ happy, what’s the point? (hope those last 3 words don’t get taken out of context – to be clear, I did not consider suicide, whether by jumping off a mountain or excessive consumption of a poor man’s marmite, i.e. vegemite).
A lot of the things that I did whilst down under – ziplining, skydiving, scubadoo-ing (thanks again to my colleagues), coming face to face with deadly snakes, getting lost, drinking too much & eating fruit etc – are things that I enjoyed but will be forgotten over time. However, I hope that I will have obtained a more positive/less judgmental outlook & increased confidence in my own decisions that will last with me indefinitely (or, at least until I have saved enough for another adventure).
The above sets out 3 of the most important things I gained from my sabbatical. It’s difficult to write this without appearing to give advice which isn’t the point of this piece – it’s about what an extended break did for me & would not be the same for anyone else.
However, hopefully the points (not making excuses not to do/see something, trusting yourself & having a positive mindset) mentioned will resonate with some.
I would recommend a sabbatical to almost anyone.
One last bit of my self-righteous nonsense (though again, despite how it’s written, it’s a personal message that I will continue to reflect on):
“Also, & perhaps more importantly, ask yourself, what was good about yesterday & what aspects did I enjoy? (& then apply it for the whole of the week). If you can’t answer it or it is “another day gone until the weekend”, then please go out & look to change it ASAP – at the very least, get some Lego (everybody loves Lego & remains “great value” as I was told by the company’s creative director on top of Sydney’s Harbour Bridge).”
Written by James Parkinson, Costs Lawyer at A&M Bacon Limited
Join us on 12th June 2018 together with some of the industries leading experts in litigation funding and costs for up to date knowledge and some yummy pastries!
Details of this event are provided in the attached. COMMERCIAL LITIGATION FUNDING & COSTS BREAKFAST
We look forward to seeing you all there!
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