Judicial review costs budgets (plus general CPR rant)
Discussion
It is not like me to bang on about how crap the law is, but the CPR suck! 67 amendments in 15 years. 8 amendments last year alone. Harry Woolf, you are a total sweetie, but **** off, will ya?
I have an instructing solicitor who is sure that costs budgets now apply to judicial review claims, but Google as I might I cannot confirm this. I have even emailed HHJ Judge Brown QC the Costs Guru asking if he knows (lawyer asks Judge for legal advice - very bad form!).
Do any of my learned friends here know?
PS: My Pupilmaster told me that it is better to say "m'friend" than "m'learned friend", because then you are only lying once!
I have an instructing solicitor who is sure that costs budgets now apply to judicial review claims, but Google as I might I cannot confirm this. I have even emailed HHJ Judge Brown QC the Costs Guru asking if he knows (lawyer asks Judge for legal advice - very bad form!).
Do any of my learned friends here know?
PS: My Pupilmaster told me that it is better to say "m'friend" than "m'learned friend", because then you are only lying once!
What I know about judicial review claims stops at how to spell "judicial review". With that health warning in situ...
3.12 provides that budgeting applies to multi-track claims, and they aren't multi-track claims, are they? A defendant files a response, rather than a defence, so Pt 26.3 (by which the court provisionally allocates to a track) doesn't bite (and coincidentally you wouldn't know what date by which to serve it).
I think.
Do you have a CMC in a JR claim? If not, then there's no fall back date for filing under 3.13 either.
There's also this article: http://www.hardwicke.co.uk/insights/articles/costs... which suggests it is recognised as being up in the air.
However, the real test of nerve is this: do you *really* want to risk not filing one? heheh!
3.12 provides that budgeting applies to multi-track claims, and they aren't multi-track claims, are they? A defendant files a response, rather than a defence, so Pt 26.3 (by which the court provisionally allocates to a track) doesn't bite (and coincidentally you wouldn't know what date by which to serve it).
I think.
Do you have a CMC in a JR claim? If not, then there's no fall back date for filing under 3.13 either.
There's also this article: http://www.hardwicke.co.uk/insights/articles/costs... which suggests it is recognised as being up in the air.
However, the real test of nerve is this: do you *really* want to risk not filing one? heheh!
Yep, but reading the "kill the poor" ranting in NPE is a pretty good downer too.
Here's our esteemed Minister of Justice at a Cabinet Meeting, announcing some policy changes:-
http://www.youtube.com/watch?v=6PQ6335puOc
Here's our esteemed Minister of Justice at a Cabinet Meeting, announcing some policy changes:-
http://www.youtube.com/watch?v=6PQ6335puOc
JR - Judicial review of administrative action. We are talking about claims in the Administrative Court (a division of the High Court) that seek to challenge a decision made by a public body. This is how the law keeps in check unlawful actions by the Government, local authorities, regulators, quangos and so forth. All Governments hate it, and the current Government seeks to curtail it, but that is another subject.
Judicial review is not an appeal system. The claimant has to obtain permission from the court to make the challenge, and must show that the decision complained of was unlawful, unfair or irrational.
Civil litigation in general is subject to a new and quite robust costs management regime, and the parties have to file statements of costs incurred and expected to be incurred early in the proceedings. This far, judicial review claims have not been subject to this regime.
The new costs budget regime is sensible, IMO. We civil practitioners have been running up silly bills for a while.
Judicial review is not an appeal system. The claimant has to obtain permission from the court to make the challenge, and must show that the decision complained of was unlawful, unfair or irrational.
Civil litigation in general is subject to a new and quite robust costs management regime, and the parties have to file statements of costs incurred and expected to be incurred early in the proceedings. This far, judicial review claims have not been subject to this regime.
The new costs budget regime is sensible, IMO. We civil practitioners have been running up silly bills for a while.
You're welcome. JR is great fun for lawyers because it raises constitutional issues and the relationship between law and policy. The cases rarely involve oral evidence (good! rule one is - call no witnesses, as your own witnesses always shaft you!). JR pays a lot better than crime or family work but a lot less well than commercial work. It's my main area of practice (otherwise I do employment, sports, media and general commercial tarting). My other work pays the bills, but JR is what gets me out of bed.
A Warning to the Curious.
No, not M R James, but this.
Following on from Mitchell etc, a law firm files a CMC checklist and on the same day posts a cheque for the court fee. The directions order said checklist and payment by 4pm 19 December. Checklist filed at 3pm, cheque lost in Xmas post or buried on desk of court officer. 200K claim struck out by DJ this morning (I wasn’t there, but have just had a somewhat agitated sol on the phone).
Application for relief from sanctions, er, in the post.
No, not M R James, but this.
Following on from Mitchell etc, a law firm files a CMC checklist and on the same day posts a cheque for the court fee. The directions order said checklist and payment by 4pm 19 December. Checklist filed at 3pm, cheque lost in Xmas post or buried on desk of court officer. 200K claim struck out by DJ this morning (I wasn’t there, but have just had a somewhat agitated sol on the phone).
Application for relief from sanctions, er, in the post.
onomatopoeia said:
I have no idea who Mitchell is in this context
Mitchell is the "plebgate" MP. He launched a libel action. Under the spanking brand new procedural rules, at the beginning of the claim, his lawyers had to file a budget setting out how much they were going to spend to take the claim all the way to trial. It came in at about £500k. They filed it late. Under the new rules, the consequence was that Mitchell would, if he won the action, be able to recover from the other side a maximum of a pittance of a couple of thousand pounds in costs, rather than the costs he would likely have incurred of £500k.
There's a "get out of jail" card you can play in those circs, which is to go to Court and ask nicely to be excused the late filing, and the hideous consequences of late filing. Mitchell's lawyers played that card. Historically the card is usually played successfully, because courts have been pragmatic/forgiving/indulgent/sensible (depending on your point of view).
Unfortunately, the Court of Appeal decided that under the brand spanking new rules, the get out of jail card can only very sparingly be allowed to be played. And this wasn't a case in which they were going to let it be played. And nor are there going to be many other cases in which it can be played.
This new "tough, no-nonsense approach" as the CA styled it has caused a few ripples amongst lawyers, not least because it is (a) going to allow the other side in Mitchell's claim to dick about safe in the knowledge that they are at zero risk of having to pay the costs of dicking about; and (b) lead to further litigation in the shape of negligence claims against solicitors.
Bet you're glad you asked, huh?
Edited by anonymous-user on Tuesday 7th January 15:29
This.
Also, in the case I mentioned, the cost saving approach means that there will now be an extra hearing that will probably result in the case being restored, so public and private money wasted to no good effect.
I generally agree with the new costs regime, and with being strict on rules across the board, as for too long people have taken the piss, but you can go too far.
Also, in the case I mentioned, the cost saving approach means that there will now be an extra hearing that will probably result in the case being restored, so public and private money wasted to no good effect.
I generally agree with the new costs regime, and with being strict on rules across the board, as for too long people have taken the piss, but you can go too far.
Agreed, especially as the court officer said "OK to post cheque" (twit sol shd not rely on this, but hey). The solicitor cocked up by leaving it to the last minute, but everyone does that sometimes.
Serious mucking about and non adherence to rules and orders should result in sanctions, but dropping an admin b
k should not. The cheque was, BTW, drawn on the account of a well established law firm, and was not at all rubbery.
PS: if court does not reverse decision, then law firm may be sued. This is where I come in, trying to get fat out of fire. Always a thankless task, as even if you succeed the sol then wants to forget he ever met you, as you are a bad memory.
Serious mucking about and non adherence to rules and orders should result in sanctions, but dropping an admin b
k should not. The cheque was, BTW, drawn on the account of a well established law firm, and was not at all rubbery.PS: if court does not reverse decision, then law firm may be sued. This is where I come in, trying to get fat out of fire. Always a thankless task, as even if you succeed the sol then wants to forget he ever met you, as you are a bad memory.
Edited by anonymous-user on Tuesday 7th January 16:19
No doubt. The Judge was still a knob, though, because he was dealing with a large law firm that had paid all previous court fees He was swinging the judicial dick in the light of Mitchell, but the message has been received and understood and there's no need to keep on yelling it.
Judges all have a memory wipe when appointed to the Bench, and forget the pressures of legal practice and making mistakes. They assume that all lawyers are there to jerk them around, and rant and rave about lawyers as much as a PH'er in a Romanian car wash.
The payment set up may relate to the usual Government IT project FUBAR (they can't just use the tested system everyone else uses), with misguided arguments about secrecy and data protection added on.
Judges all have a memory wipe when appointed to the Bench, and forget the pressures of legal practice and making mistakes. They assume that all lawyers are there to jerk them around, and rant and rave about lawyers as much as a PH'er in a Romanian car wash.
The payment set up may relate to the usual Government IT project FUBAR (they can't just use the tested system everyone else uses), with misguided arguments about secrecy and data protection added on.
Say from 15K ish to mid to high five figures per team for a one day judicial review. Some of the cases are straightforward, but some involve some complexity and high concept stuff, especially if there are lots of badly drafted Regulations to construe, or novel Europoints or human rights arguments.
The case that I mentioned above is now going to the Court of Appeal. The Mitchell approach to the rules is leading to lots of satellite litigation and increasing costs, tactical BS, and timewasting, so achieving the exact opposite of the effect intended.
The case that I mentioned above is now going to the Court of Appeal. The Mitchell approach to the rules is leading to lots of satellite litigation and increasing costs, tactical BS, and timewasting, so achieving the exact opposite of the effect intended.
carinaman said:
That sounds a lot. £15K for 'Don't be silly you've used the wrong set of instructions'?
Here are some example cases. Simple, you think?http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/c...
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/c...
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/c...
Relatively few people would get 40k for a three day trial, and these days there may be no junior, or the junior charges a lot less than two thirds of what the leader charges. I am quite expensive but for a three day trial would cost about 20k for the prep and day one and 1500 to 2000 per day thereafter, plus VAT. When billing for advisory work I am between 300 and 450 an hour, but for Government work in court or out I get 120 an hour. That rate has not changed for 18 years.
A clerk is a diary manager and a sort of pimp. Silk shows a style of clerking that all but died out twenty years ago. My clerks work under my direction and I get involved in the major fee negotiations, but I leave the clerks to do most of the booking of cases and setting of fees. They schmooze the market heavily. I have to schmooze too, but am bad at it. The clerks are on salaries with some performance bonuses, but are no longer on commission as they were back in the day.
My chambers led the way in the 80s when we retook control of the business, which barristers had ceded to clerks over time. In old school chambers the head clerk was King, but nowadays the Head Clerk is number two or three employee after the Practice Manager and Deputy if present. Our Practice Manager is an ex solicitor. Her Deputy is a professional Marketing guy.
A clerk is a diary manager and a sort of pimp. Silk shows a style of clerking that all but died out twenty years ago. My clerks work under my direction and I get involved in the major fee negotiations, but I leave the clerks to do most of the booking of cases and setting of fees. They schmooze the market heavily. I have to schmooze too, but am bad at it. The clerks are on salaries with some performance bonuses, but are no longer on commission as they were back in the day.
My chambers led the way in the 80s when we retook control of the business, which barristers had ceded to clerks over time. In old school chambers the head clerk was King, but nowadays the Head Clerk is number two or three employee after the Practice Manager and Deputy if present. Our Practice Manager is an ex solicitor. Her Deputy is a professional Marketing guy.
Edited by anonymous-user on Thursday 27th March 10:20
I add that Silk bears almost no relation to reality. It is wildly inaccurate and pure fiction.
I add also that barristers are self employed but pool resources and marketing effort by grouping together in sets of chambers. We pay a percentage of pre tax fees to chambers to cover staff, building costs, marketing etc, and on top of that pay professional subs, insurance, books, equipment, court clothes and travel. This leaves a profit margin of 60 to 70 per cent and on that we pay tax, so in rough terms I get about 35 quid from every 100 quid I bill.
I add also that barristers are self employed but pool resources and marketing effort by grouping together in sets of chambers. We pay a percentage of pre tax fees to chambers to cover staff, building costs, marketing etc, and on top of that pay professional subs, insurance, books, equipment, court clothes and travel. This leaves a profit margin of 60 to 70 per cent and on that we pay tax, so in rough terms I get about 35 quid from every 100 quid I bill.
Back on the original topic:-
Following a consultation, the CPR Committee has now agreed amendments to CPR Part 3 and PD3E which, subject to ministerial approval, will come into force after Easter. The scope of the rules are clarified so that rather than applying to all multi-track cases (subject to specified exceptions), they will from 22 April apply only to all Part 7 multi-track cases (again subject to specified exceptions). The Court retains the power, either of its own motion or on application from a party, to apply the budgeting rule in any other case.
So it is now clear that costs budgeting does not apply to JR (or other Part 8 claims) unless the Court orders the parties to produce costs budgets in a particular case, in the exercise of its ordinary case management powers.
On a wider note, Grayling talking cobblers, again:-
http://www.theguardian.com/law/2014/mar/26/judicia...
Following a consultation, the CPR Committee has now agreed amendments to CPR Part 3 and PD3E which, subject to ministerial approval, will come into force after Easter. The scope of the rules are clarified so that rather than applying to all multi-track cases (subject to specified exceptions), they will from 22 April apply only to all Part 7 multi-track cases (again subject to specified exceptions). The Court retains the power, either of its own motion or on application from a party, to apply the budgeting rule in any other case.
So it is now clear that costs budgeting does not apply to JR (or other Part 8 claims) unless the Court orders the parties to produce costs budgets in a particular case, in the exercise of its ordinary case management powers.
On a wider note, Grayling talking cobblers, again:-
http://www.theguardian.com/law/2014/mar/26/judicia...
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