This is my first post since Jackson. I decided that rather than joining in the hysteria about the end of the world as we know it, I would wait until something new and interesting actually happened. It's taken 7 months. And I still feel fine....just a little irritated.
The Rules in respect of Points of Dispute and Replies have changed.
By virtue of s 8.2 of the Practice Direction to CPR Part 47 Points of Dispute must be "short and to the point" and must -
(a) identify any general points or matters of principle which require decision before the individual items in the bill are addressed; and(b) identify specific points, stating concisely the nature and grounds of dispute.
In addition it is directed that "Once a point has been made it should not be repeated but the item numbers where the point arises should be inserted in the left hand box as shown in Precedent G".
So rather than Defendants negotiators referring without irony to every single individual item within a bill as "duplicative", they can say it just the once, and then list the numbers of all of the items that they maintain are "duplicative" / "duplicatory" / "supercalafragilisticextraduplicatious".
Extraordinarily sensible you say. Indeed. RSI claims within the industry from constant copying and pasting will be vastly reduced. Negotiators will not have to think up ever more persuasive adjectives. Jackson knows his stuff.
The strange bit is the provision for Replies, which is at s 12.1 of the Practice Direction -
12.1 A reply served by the receiving party under Rule 47.13 must be limited to points of principle and concessions only. It must not contain general denials, specific denials or standard form responses.
To be entirely honest I have taken this with a pinch of salt until now. My suspicion was that the rule changes were intended to stop the sort of Points of Dispute and Replies that are of use to neither man nor beast. The "schoolyard" school of detailed assessment -
"My dad says 25 hours on documents is too high" - "Well my dad says, 25 hours is entirely reasonable"....and so on.
I had thought, or hoped, that everyone else would be pragmatic about it too. More fool me. The apparent desire on the part of some Defendants to conjure a dispute out of nothing continues unabated.
I was recently served with Points of Dispute that contained the following, in respect of a lay witness, whose statement would have been served had liability not been admitted and the case settled before exchange of evidence -
The Defendant notes that no
witness evidence was disclosed or relied upon during proceedings,
non-progressive in any event. No offer for this item.
My reply was as follows -
The time for exchange of witness
statements had not been reached at the point of settlement.
I thought it was a brief but constructive response that would assist the other side to see that their stance was wrong and it would help the court in the event that the matter went to detailed assessment, particularly as the case is likely to be dealt with under the new provisional assessment procedure.
The Defendants have just written back to say that the Replies are non-compliant with the CPR because they contain a specific denial. I suppose looking at the letter of the Practice Direction they are right....there is no doubting that it is a "specific denial". But it is a specific and reasoned denial of a point specifically raised, and which is based on an entirely false premise.
The implication is that I should leave it out, and hope that the court spots that the objection (which on the face of it is entirely reasonable) is wrongly brought. Not sure that I can do that. It could cost my client several hundred pounds if the work is disallowed. Remember that this bill will be provisionally assessed so I have no chance to augment my response with oral argument. And on provisional assessment, unless you can better the result of the provisional decision by 20% you are stuck with it, and a hefty costs order to boot, so getting the small points right first time round is actually quite important. We'll just have to see what the Court says. Hopefully good sense will prevail.
If it does not, a rule change that I suspect was a valiant attempt to reduce the costs of the detailed assessment process, will actually have entirely the opposite effect. On bills that are to be provisionally assessed costs draftsmen will have to anticipate every single point that might be taken by the paying party, whether good or bad, and effectively incorporate their "reply" into the bill narrative, which will vastly increase the cost of preparing a bill.
Otherwise on assessment, the Claimant will to all intents and purposes be unrepresented....in fact worse he or she will be completely mute.
Time goes by from year to year
And no one asks why I am standing here
But I have my answer as I look to the sky
This is the time of no reply
How true Mr.Drake.....how true!
Otherwise on assessment, the Claimant will to all intents and purposes be unrepresented....in fact worse he or she will be completely mute.
Time goes by from year to year
And no one asks why I am standing here
But I have my answer as I look to the sky
This is the time of no reply
How true Mr.Drake.....how true!
Thoughts on Costs Budgeting and The Cancellation of Contracts made in a Consumer’s Home or Place of Work etc. Regulations 2008 to come shortly.
Perhaps the Bill should have justified this at the outset?
ReplyDeleteTechnically you are probably right. But isn't that a nonsense? Is it not simply going to mean that bill costs increase drastically as we have to anticipate every single bad point that might be raised (and there are a lot of bad points that MIGHT be raised) and do a pre-emptive response to them in the bill?
DeleteIs it a nonsense? I'm not sure. A properly drawn Bill should always justify the costs claimed, not just operate as a glorified receipt.
ReplyDeleteIt's not necessary to identify every bad point, but it's easy enough to anticipate the key ones and deal with them in advance.
Yes, I think it is putting the cart before the horse. Of course a bill should justify the costs within it, and yes it is easy to anticipate the key points, but it is the smaller issues that are a cause for concern because unless the court makes the right decision on provisional assessment the 20% rule means that it may be impossible to put matters right. The corollary of that is that (if the above Defendant's interpretation of the practice direction is correct) we have to address not just the key points, but every single point that MIGHT be raised when drafting the bill. Dealing with every dispute that MIGHT be raised BEFORE they are raised will inevitably lead to a significant increase in the costs of drafting a bill. Whilst that might suit some people, I think it is short sighted.
ReplyDeleteI would hope that paying parties and the courts will adopt a pragmatic approach and (where the costs are to be assessed provisionally) allow Replies to continue to deal with specific issues where they can do so constructively.
The alternative I suppose, which really would be ridiculous, is that we have a preliminary hearing to determine whether (bearing in mind that the receiving party will have no right of reply whatsoever if it is allowed in) a wholly wrong headed Point of Dispute ought to be struck out before the costs are provisionally assessed.
The thing is, the court does not have time to read the PODs, Replies, any related paperwork and the Bill and then assess costs in all but the most low value cases. It is my experience that many Judges are reading the Bill, skimming the other documents for "key issues" (i.e. funding points) and then comparing costs to damages, which is sadly now the overwhelming issue.
ReplyDeleteI don't there is a cart anymore. We're all riding bareback.
I take solace in the fact that if a PP wants to try that tact then they will never have an extension for PODs from me - and if they are 1 minute late then they can try and have my DCC set aside. Swings and roundabouts except their failure will land us a windfall; dodgy Replies will probably affect nothing.