Podcast by Practico - the PodCost series
2021 05 05 - Costs chat with friends - Andrew Hogan with Jeremy Morgan QC and Andy Ellis
This time our regulars Jeremy Morgan QC and Andy Ellis are joined by Andrew Hogan of Kings Chambers. Jeremy describes Andrew’s contribution as ‘enormously illuminative’ and we are sure you will agree. The topics covered are:
• Andrew’s thoughts on the effect of the pandemic on the High Court/ SCCO versus the County Court.
• The new regime for witness statements operating in the Business and Property Courts with effect from 6 April 2021 (https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part-57a-business-and-property-courts/practice-direction-57ac-trial-witness-statements-in-the-business-and-property-courts). In Andrew’s words, he has never seen anything like it and the pilot could be seen as ‘an exercise in shuffling the deckchairs.’ Andrew and Andy highlight some immediate and longer-term practical issues which may emerge, including the weaponisation of non-compliance by the parties.
• Solicitor client assessments can be the stuff of nightmares and the panel agree that the challenges we have seen thanks to CheckMyLegalFees.com (Belsner v Cam -https://www.bailii.org/ew/cases/EWHC/QB/2020/2755.html) and Swann v Slater & Gordon - https://www.lawgazette.co.uk/practice/cap-on-damages-amounts-to-informed-consent-court-rules/5107930.article) will inevitably outgrow their current home in personal injury and migrate to commercial litigation.
• Budget variations - the procedure provides a bridge between the certainty that exists for the parties when a costs budget is approved at the beginning of the case and the fact that cases often develop in ways which cannot be imagined initially. The panel discuss two recent budget variation cases (Thompson v NFL Limited  EWHC 679 (QB) and Persimmon & Taylor Wimpey v Osborne Clark  EWHC 831 (Ch)) and highlight the interplay between the separate routes of budget variation applications on the back of significant developments and establishing good reason to depart from an approved budget on detailed assessment. They also pose an important question – who is in the best position to decide whether a budget should be increased, the managing judge or the costs judge?
• The session finishes with a nod to the possibility of costs managing expert accountants’ fees in the future as mentioned by the Senior Costs Judge in the long running costs assessment in the case of Deutsche Bank AG v Sebastian Holdings Inc - https://www.bailii.org/ew/cases/EWHC/Costs/2021/B4.html
2021 03 08 Costs chat with friends - Andrew Post QC with Jeremy Morgan QC and Andy Ellis
In our latest PodCost, Andrew Post QC joins us from Hailsham Chambers and we talk about:
1 - The Zuberi v Lexlaw decision of the Court of Appeal on the enforceability of DBAs and what it means for the ability to effect termination clauses (easy) and to introduce hybrid fee arrangements (difficult).
2 - The possibility of partial relief from sanction for late filing of a costs budget based on obiter remarks in Heathfield International LLC v Axiom Stone (London) Ltd.
3 - Merricks v Mastercard will shortly return to the CAT and certification for this opt-out class action is expected. We discuss what this means for costs in collective actions and how the CAT may approach costs management if it can be encouraged to develop an appetite for budgetary control.
4 - A year after the first lockdown kicked in, we consider the good and bad aspects of remote working, in court, mediation and in daily practice.
2020-12-15 A costs chat among friends - Jeremy Morgan QC and Andy Ellis with Andrew Gordon-Saker
In this Christmas edition of the PodCost we were delighted to be joined by the Senior Costs Judge, Andrew Gordon-Saker for a review of the year in litigation costs and how (well) the SCCO has adapted and coped with remote hearings. There is also some news about the Guideline Hourly Rate Review and some thoughts about budgeting after the October rule changes
2020 - 10 - 15 A costs chat with friends - Jeremy Morgan QC and Andy Ellis with Alex Hutton QC
n this latest episode, Jeremy Morgan QC and Andy Ellis catch up with Alex Hutton QC from Hailsham Chambers. Topics include a short consideration of how litigation is holding up in the current pandemic and recession, the latest on the guideline hourly rates review, the possibility that the next iteration of the 'costs wars' may pit clients against their lawyers, and the key takeaways from the recent rule changes around budget variation
2020 - 09 - 17 A costs chat with friends - Jeremy Morgan QC, Andy Ellis and Nick Bacon QC
This is the third edition post-Covid of our virtual roundtables under the theme 'Costs talks with friends'.
In this edition Jeremy Morgan QC hosts a discussion with Nick Bacon QC of 4 New Square and Andy Ellis. MD of Practico. The ground covered is in part a trailer for some forthcoming appeal decisions of interest to litigators. One concerns the thorny issue of informed consent by clients to situations where their liability for costs to solicitors is likely to exceed the sums available to be recovered inter partes.
We also discuss the question of what constitutes litigation services in the context of argument in a recent case involving Ryanair, wherein at first instance it was decided that the solicitors did not have lien on costs that would prevent Ryanair from paying compensation direct to represented claimants.
Nick and Andy suggest that reform of the Solicitors Act is long overdue and rounding up recent decisions we look at a little known decision on costs budgeting arising from Depp v NGN which foreshadowed changes in the PD coming in next month.
2020 - 08 - 27 A costs chat with friends - Jeremy Morgan QC With Marion Smith QC And Paul Darling QC
In the second of our 'Costs chat with friends' series our host Jeremy Morgan QC catches up with former chambers colleagues Marion Smith QC and Paul Darling QC from 39 Essex.
Topics were wide-ranging and included the latest on non-party costs orders (including against experts), implications for third party funders, and the importance of going for indemnity basis costs when circumstances encourage it.
Cases referred to include:
• The Ikarian Reefer  2 Lloyd’s Rep 68,  2 WLUK 373
• Phillips v. Symes (No. 2)  EWHC 2330 (Ch),  1 WLR 2043
• Jones v. Kaney  UKSC 13,  2 AC 398
• X Local Authority v Trimega Laboratories Ltd  2 FLR 232,
• Re A v. B, C, D, E and F and Local Authority A (Fact finding honour based violence)  EWHC 406 (Fam)
• Re Capita Translation and Interpreting Ltd  EWFC 5
• Thimmaya v Lancashire NHS Foundation Trust  1 WLUK 437  PNLR 12
• Arkin v. Borchard Lines Ltd (Nos 2 and 3)  EWCA Civ 655,  1 WLR 3055
• ChapelGate Credit Opportunity Master Fund Ltd v. James Money, CA  EWCA Civ 246 and first instance (Snowden J)  EWHC 997 (Ch)
• Singularis Holdings Limited v. ChapelGate Credit Opportunity Master Fund Ltd  EWHC 1616 (Ch)