LATEST 'LAW WATCH' FREE VIDEO NOW OUT

See my new shirt on my new video. What a treat. And there's some law too. A Court of Appeal decision on what was not - and what might be - unreasonable behaviour sufficient to lose you the costs protection which usually applies in county court small claims. How you might escape having to pay into a service charge reserve fund for your home. New rights for housing association tenants. And when you may be able to avoid disqualification for too much speeding. Just click below. 

SOLICITORS' CHARGES: GOING UP?

You may be hearing from your solicitor any day. Not necessarily to say you have won your case but to notify you that the hourly rate they will be charging you for their future work is going up by 2.28%.

Here's why. Solicitors in England and Wales are now set guidelines each year on what it is reasonable for them to charge the opposing party when that party has lost a case or an application in proceedings and had an order for costs made against them. These charging rates can be reduced or increased by the judge who fixes the final figure but they will usually be applied. Generally, though, what the opposing party is ordered to pay cannot exceed the amount you, the client, could be charged by the solicitor if dipping into your own pocket to pay for the work. So what you could be charged can be expected to be at least the same as the guideline rates.  

The 2.28% increase in the hourly rate is to account for inflation since the last increase and will apply to civil but not family cases. They are intended to be used where the judge makes a summary assessment of what the opposing party has to pay in less complicated hearings but will often be adopted for detailed assessments in more substantial  litigation. 

Different hourly rates are used, depending on where the solicitor is based and who in the solicitor's firm is doing the work. The higher the status of the person doing the work in the firm, the higher the guideline rate for their work. At the top are solicitors and legal executives with over eight years' experience. They are followed down by solicitors and legal executives with over four years' experience. Then other solicitors and legal executives with less experience.  And, on the bottom rung, come trainee solicitors and paralegals (who aren't qualified lawyers but support the qualified lawyers in the firm).   

The highest new guideline rates are in London. For firms in the City and Central London, the hourly rate tops at £422 and drops to £157. However, when it comes to very heavy commercial and corporate work conducted by any centrally based London firm, that range jumps from £579 to £210. For firms in Outer London and Dartford and Gravesend, the range is from £319 to £146.

Out of London and Dartford and Gravesend, there are two groups of locations - the more expensive group including such places as Liverpool. Manchester and Nottingham and cities and towns within Hampshire and Surrey and the less expensive group for everywhere else. So in the first group, the new hourly rate ranges from £295 to £142 and in the second group from £288 to £142. To check into which group the firm you are or are thinking of using falls, go to https://www.judiciary.uk/guideline-hourly-rates-2026/ (see pages 3 to 14).

Some important points-

• The work may be carried out for you by more than one person in the firm. For example, a trainee solicitor may do a lot of it and a qualified solicitor with more than eight years' experience supervise them and do the rest of the work so that different charging rates may apply to different parts of the case. 
•  You may have agreed a fixed fee with the firm in which event the fee cannot be increased unless your agreement with the firm allows for an increase.
• The firm may quote you charging rates which are more or less than the guideline rates. There is nothing to stop you seeking to negotiate a lower rate and even shopping around. The guideline rates will give you an idea of what is regarded as a reasonable rate. But remember, the cheapest may not be the best and a simple case may justify a rate which is under the guideline rate: a complicated case, something greater.
• If the case is likely to involve court attendances, then it will probably be cheaper for you to use a firm in or close to that locality but, again, the cheapest may not be the best.
• There is much more on how to select the right lawyer for you - solicitor or barrister or both - in my book 'The Return of Breaking Law'.

'LAW WATCH' VIDEO FOR SEPT/OCT: LATEST LAW

Enough sun. Catch up with legal developments in a relatively painless way with a click for my latest free video. Feast on

• saving on power of attorney registration fee
• earning £24 an hour as a litigant in person
• less info for the public at Companies House
• lower interest on personal injury special losses
• the sanctity of the financial dispute resolution appointment
• getting paid for caring for a relative
  

You can also download the factsheet here.  

'LAW WATCH' VIDEO GOES CPR CRAZY

My latest video is unfit for litigant in person consumption  but anyone can take a look.  It's about my pick of the latest Civil Procedure Rule amendments and Practice Direction 171. Some Fixed Recoverable Costs. Some Writs and Warrants of Possession. And a pinch of Brexit. Do click below.

LAW WATCH - FROM STEPHEN GOLD

Will this law never stop? No. And just to prove it, here is another free video. This one is about why you may be claiming too little for personal injury damages, avoiding the 'fixed recoverable costs' regime for civil proceedings kicking off on 01 October 2023 (although note that the regime only applies to personal injury cases where the right of action accrues on or after 01 October 2023) and why the taxman's penalty may not be wholly or partly payable. Click below.

NEW DIVORCE LAWS: COSTS GUIDANCE ISSUED

As I predicted in my video on the new divorce laws coming into force next week, the President of the High Court's Family Division has issued (just yesterday) guidance on how the courts should approach an application by one party for an order that the other party should pay their costs of proceedings. In fact, the guidance covers not only proceedings for divorce but proceedings for a dissolution of a civil partnership or for separation in marriage and civil partnership where mirror reforms will also come into force on 06 April 2022.

The guidance has a special eye on proceedings that are uncontested and where, because of the legal reforms, the court will no longer be considering the conduct of either party towards the other during their relationship. It makes clear, however, that the conduct of the party being asked to pay the costs of the other party in connection with the actual proceedings, rather than the relationship, may be relevant. This will be particularly so if, for example, the other party has attempted to evade service of court documentation and increased the costs as a result. Raising spurious or unreasonable arguments in proceedings will also be taken into account and could lead to a costs order.

This guidance in no way affects current proceedings or those which are started between now and 06 April 2022. This means, as I have been suggesting, that bringing proceedings under the current laws may well make it more likely that the blameless party will score on costs than under the new laws.

All is explained in my video which you can access by clicking on the video image in one of the posts below. 

New Procedural Rules For Family Cases

Here we go with some important changes for family cases (such as divorces, financial remedy applications and applications relating to children). Give thanks to the Family Procedure (Amendment) Rules 2020 SI 2020/135 and amendments to certain practice directions which will be published before 13 March 2020.

As from 6 April 2020, writing to the court on the sly will generally be taboo. As with civil cases, anything written to the court by a party to family proceedings of substance or about procedure,  must be copied to the other party or their representatives and state on its face that this is being done.  The only exceptions will be a compelling reason for non-disclosure provided it is explained and communications that are purely routine, uncontentious and administrative.

From the same date, there's confirmation that no use may be made in court of unofficial recording equipment without permission.  And clarification that apart from the parties, generally, anyone who seeks a transcript of a hearing requires permission and the money to pay for it. The court will also empowered to assist a litigant in person by directing the compilation and sharing of another party’s note of the proceedings.

As from 6 July 2020, parties to applications for financial remedies in the course of  matrimonial proceedings will have to comply with strict rules aimed at getting faster settlements and keeping costs under control. Each party must send to the court and the other party an open proposal for settlement after any financial dispute resolution appointment has failed to procure a settlement and usually within 21 days of that appointment.

Also from 6 July 2020, there is a toughening of the procedure for telling the court and the other side how much each party has so far spent on the case. These costs estimates will need to be sent to the court and the other side no later than one day before every hearing in a financial case (and a copy taken along to the court for the hearing), be verified by a statement of truth in the form which will be specified in the practice direction and there will be a special one for litigants in person. And, where the party has a solicitor, they must discuss the estimate  with the client  (although there is no obligation on the solicitor to have a bottle of smelling salts available in case the client passes out with shock).

You'll find lots and lots about financial cases and how to handle them in my book Breaking Law.

New Civil Procedural Rules: MORE!

I've provided you with the first dose of the new civil procedural rules coming into force next month. Please digest http://www.breakinglaw.co.uk/2019/03/new-civil-procedural-rules-open.html with a glass of cold water but not on an empty stomach. Here's some more to be taken with your evening meal.

Summary assessment of costs This is only likely to interest you if you are a lawyer,  professional litigant. or slightly eccentric. On 01 April 2019 a pilot scheme for the summary assessment of costs is introduced. It doesn't matter when the claim was started. If the assessment is to take place on or after that date then the party who will be asking for costs can use a new form instead of the current N260 and can utilise an electronic spreadsheet. For an interim application, use new form N260A: for an assessment which is going up to and including trial, use new form N260B. You''ll find the new forms with CPR update 104. With that update, you will also find a new budget discussion report form for multi-track cases which must be used as from 25 April 2019.

What did the judge say? The court hearing will have been recorded and you can request a transcript of what was said. If the judge raised their eyebrows during the hearing or your jaw dropped a few feet when you heard the judge's decision then that, of course, will not show up on the transcript! The cost of the transcript has to be borne by whoever asked for it. It can be high. The longer the hearing, the longer the transcript and the costlier it will be. If you want the transcript for an appeal then the likelihood is that only the judgment - the judge's announcement of their decision and why they have reached it - will be needed. However, judgments can be lengthy and, for a variety of reasons, there can be delays in the transcript being produced for you. This can hold up the appeal. A new provision in the procedural rules which will come into force on 01 April 2019 encourages the judge to assist a party, and particularly a litigant in person, to give directions for the compilation and sharing of any note or other informal record of the hearing which has been made by another party or their lawyer or, indeed, by the judge. This is to be welcomed and should accelerate the determination of any appeal.

Act Fast On Package Holiday Sickness Claims (Or There's A Poisonous Fly In My Soup)

New court rules are about to come into force  - probably by the end of this month - which will encourage the travel industry to fight package holiday sickness claims.  They will limit the legal costs which the tour operator would otherwise have to pay if it lost the case. That means there will be less of a financial risk for them to try and get the claim thrown out. The message, then, is this. If you have been poisoned by food served up on a package holiday at a hotel abroad, start off your claim by issuing proceedings FAST so as to beat the new rules which are unlikely to be retrospective.

Behind the change is the steep increase in bogus claims and campaigning by the Association of British Travel Agents and others to protect tour operators.

Must go. I've got a terrible....

Litigant In Person Escapes Costs Order

Court proceedings about the welfare of  a child under the Children Act 1989 are often painful enough for the parents (or other parties) without them being saddled with having to pay the legal costs of the other side which has been successful.

The Court of Appeal has just reiterated the principle that in cases of this kind there should not be an order for costs against the unsuccessful party unless their behaviour in the proceedings has been reprehensible. In the case in question, the unsuccessful party on an appeal was a litigant in person, had not behaved reprehensibly and had not been warned in advance that a costs order was going to be sought. Even if there had been reprehensible behaviour, the procedure for getting costs dealt with at the hearing which generally applies had not been followed. That requires the party seeking costs to have sent to the other party a particularised statement of the costs involved and to have done so at least 24 hours before the hearing. In the absence of doing so, the judge might well refuse to make an order for costs even if they would otherwise have done so. The procedure also applies to other family and civil cases.

The costs order in the Children Act case* was quashed.

For how a litigant in person can obtain a costs order in their favour, see chapter 26 of Breaking Law.

* Re A (a child) (2008) CA 13 March 2018

Victory on Costs in Small Claims

One of the delights of losing a claim which has been dealt with in the county court under the small claims regime is that, if the winner was legally represented, you won't have to pay the legal costs they have incurred. There may be certain expenses you will have to be reimburse and for full details of them, the traps and how to handle a small claim, see my book Breaking Law. 

Is there any exception to this protection from a costs bill? Yes. You won't enjoy the protection if you have been guilty of unreasonable conduct. You might have deceived the court and the claimant into believing that you were defending the claim and then deliberately stayed away from the final hearing. Or you might have brought a hopeless claim and lied your head off when you got to court with some of the biggest whoppers the judge had ever heard. Whether the conduct was or was not unreasonable is going to depend on the circumstances of each individual case.

But the Court of Appeal * has just endorsed some guidance on how the question of unreasonable conduct should be approached which will apply where you have attended the final hearing and not lied until your head dropped off. Conduct will not be unreasonable simply because you lose. And it will not be unreasonable if a more cautious litigant would have acted differently. The acid test is whether the conduct complained of can be reasonably explained. If it can, then your conduct (for example, in pursuing a failed claim or defence) might be regarded as optimistic but it will not be unreasonable. The Court of Appeal went on to express the view that it would be unfortunate if litigants were too easily deterred from bringing or defending a small claim by the risk of being held to have behaved unreasonably and so rendering themselves liable for heavy costs.

In the case in question, the claimant had failed in a claim because of an obscure point of law which had gone against him. He then appealed  to a circuit judge and failed again but the circuit judge ordered him to pay the legal costs of the defendant which had been represented by lawyers, on the basis that he had been guilty of unreasonable conduct in pursuing the appeal. The Court of Appeal decided otherwise and quashed the order for costs. It was especially influenced by the fact that the circuit judge had actually given the claimant the necessary permission to make the appeal.

If you are making or pursuing a small claim and your opponent has lawyers, you may have heard from or you may be hearing from those lawyers to the effect that their client's legal costs amount to £40,000,000, accusing you of unreasonable conduct in the proceedings and threatening to ask the court to order you to pay those costs if, as they expect you do do, you lose. You might mention this latest Court of Appeal decision to them!

* The case name is Dammermann v Lanyon Bowdler LLP [2-17] EWCA Civ 269