Mystery Footpath Case Solved

The Case
of the
Mystery
Footpath
Tracey Benson
Issue 9 | Winter 2014
The Introduction of
“Fundamental
Dishonesty”
Peter Jones
Are Fixed Costs in
Multi-Track Cases
on the Horizon?
Vincent Williams
Drafting by Numbers:
The Arrival of J-Codes
Steve Jepson

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WELCOME TO INSIDE LAW
With this our 9th edition of Inside Law falling pre-Christmas and in the midst
of the festivity season, I would like to wish you all a very Merry Christmas and
a prosperous New Year.
With that in mind I am, as ever, grateful to our contributors for their articles
and we have a rather timely contribution from the excellent Professor Dominic
Regan, suggesting ten top bottles worth seeking out over the festive season.
On a more serious note, we are being bombarded with J codes in the costs
arena and our own Steve Jepson attempts to add clarity. We are honoured
yet again to receive an excellent contribution from 9 Gough Square and
Vince Williams who talks about the possible introduction of fixed codes in
Multi-track cases and a “Whodunit” from the formidable Tracey Benson.
We hope you enjoy the issue, as always, your feedback is very welcome.
Please send your comments to info@rcostings.co.uk or alternatively, visit our
website should we be able to assist you in any costs issues that you may have.
Paul Reason
Costs Lawyer
Managing Director

The Case of
the Mystery
Footpath
8
Tracey Benson
COVER STORY
14 Drafting by Numbers:
The Arrival of J-Codes
Steve Jepson
18 Proportionality: The Key
to Inquest Costs
Helen Dunn
16 Are Fixed Costs in
Multi-Track Cases on
the Horizon?
Vincent Williams
12 10 Green Bottles
Dominic Regan
4 The Introduction of
“Fundamental
Dishonesty”
Peter Jones
CONTENTS
ISSUE 9 | WINTER 2014
6 Obtaining Costs After
Discontinuance from the
Client
Tom Loia
3

T
he Criminal Justice and Court Bill
was introduced into the House of
Commons on 5th February 2014.
Line by line examination of the Bill took
place during the Committee stage on
30th July 2014 with final amendments
being made to the Bill during the
third reading on 10th November 2014.
The Bill is now to go to the Commons
for consideration of Lords amendments
and is expected to receive Royal Assent
by the end of 2014.
One of the “costs benefits” of this Bill is
that its’ intention is to reduce the burden
of the costs of Court on hardworking
taxpayers by making those found guilty of
criminal offences, pay towards the costs
of their Court cases. However, with the
momentum fully in flow already post-April
2013, with regard to Personal Injury (PI)
claims, a significant addition was included
into this Bill, by virtue of Clauses 49 to 53.
Clause 49 (1) states that;
“This section applies where, in proceedings
on a claim for damages in respect of
Personal Injury (“the primary claim”)
(a)theCourtfindsthattheClaimantisentitled
to damages in respect of the claim, but;
(b) on an application (emphasis added) by
the Defendant for the dismissal of the claim
under this section, the Court is satisfied on
the balance of probabilities that the Claimant
has been fundamentally dishonest in relation
to the primary claim or a related claim”.
Essentially, Clause 49 (1) (b) allows a
Defendant to apply to the Court to dismiss
the whole of a PI claim if it, the Court,
finds, on the balance of probabilities, that
the Claimant has been “fundamentally
dishonest.” The effect of this on the
Claimant will be such that if he or she
is found to have been fundamentally
dishonest in one part of the claim, for
example by exaggerating symptoms of an
injury sustained, then both the claim for
General Damages and Special Damages
will be dismissed. Definition will be at the
interpretation of the Court, and will no
doubt lead to considerable legal debate
surrounding the standard of dishonesty
required, for the Defendant to be able to
satisfy a Court that the Claimant’s claim
should be dismissed in its’ entirety.
Previously, if the client had exaggerated
symptoms, it would not necessarily be
regarded as fundamental dishonesty,
but simply rather as exaggeration, and
damages could be reduced if applicable,
but the claim would not automatically be
dismissed. Thereafter the Court could
utilise their discretion under the pre-April
2013 CPR 44.3 (2) (b) in expressing their
THE INTRODUCTION
OF “FUNDAMENTAL
DISHONESTY”
44

disapproval of such conduct, by awarding
percentage related Costs Orders. Now,
however, the roles will be reversed with
damages being struck-out and a Costs
Order being made against the Claimant.
Clause 49 (5) states that, “a Costs Order
made by a Court which dismisses a
claim under this section may require the
Claimant to pay costs incurred by the
Defendant only to the extent that they
exceed the amount of damages recorded
in accordance with sub-section (4)”.
Clause 49 (4) states that;
“the Court Order dismissing the claim
must record the amount of damages that
the Court would have awarded to the
Claimant in respect of the primary claim, but
for (emphasis added) the dismissal of the
claim”. Thus, if a claim has been dismissed
due to fundamental dishonesty whereby
the Defendant’s costs are presented in the
sum of £25,000.00 and the Court concludes
that damages recorded under sub-section
(4) would have been £20,000.00, then a
Claimant pays the balance of £10,000.00
to the Defendant. The Claimant would
therefore lose his or her QOCS protection.
Clause 49 (2) states that whilst the Court
“must dismiss the primary claim” there is
the added caveat “unless it is satisfied
that the Claimant would suffer substantial
injustice if the claim were dismissed”. Whilst
“substantial injustice” is not defined, in such
circumstances, the Court would not be able
to find in favour of the Claimant but would
be able to reduce or eliminate damages.
Obviously, this Bill has yet to be presented to
Parliament and is not expected to become
law until early 2015, but it gives another
clear indication that the PI market is coming
under considerable scrutiny yet again and
procedurally Clause 49 (9) states that;
“this section does not apply to proceedings
started by the issue of a claim form before
the day on which this section comes
into force”. Whilst the provisions are
retrospective and will apply before the
law comes into force, they do not apply
prior to this Bill being implemented.
Thus, an influx of proceedings will no
doubt be issued beforehand, to prevent
as many cases as possible potentially
falling foul of, and being subject to the
scrutiny of, the provisions of Clause 49 (9).
Those of us within or close to the PI
market, should pay close attention to
developments over the coming months.
Peter Jones is a Costs Lawyer and
Manages the Costs Department
at R Costings. He has dealt with
the preparation of Bills of Costs in
practically every area and is a skilled
advocate having attended many
detailed assessments throughout
the country, both justifying and
opposing bills. Peter has been
involved in all aspects of large
clinical negligence and multi-
million pound personal injury cases
involving complex costs issues.
For all Law Costs queries,
please email
pjones@rcostings.co.uk
or call on 01480 463499.
Peter Jones
5

T
h is case saw the claimant
d i s c o n t i n u e a f t e r h a v i n g
obtained two adjudication
decisions against the defendant. The
claimant advanced the offer that:
“[If the defendant] pays our client the
£43,892.37 our client will discontinue
the court proceedings and will thereafter
negotiateingoodfaithwithaviewtoachieving
overall settlement. However, unless and until
that sum is paid by Peacock our instructions
are to continue with court proceedings
and obtain a judgment to enforce the full
amount claimed with interest thereof.”
No provision for costs was made in the
correspondence.Whetherornotthisomission
was owing to carelessness on the part of
the defendant - it came back to bite him.
The defendant accepted, and paid the
requested sum to the claimant. In line with
the agreement, the claimant discontinued,
and sought an order for costs in his
favour. The defendant contended that
he was liable to costs in this instance.
The claimant asserted that there was
nothing in the agreement with regard to
costs. The matter was put to the court.
The judge was satisfied that a binding
agreement had been created between
the parties but, as is the norm with such
agreements, no admission of liability
was made. The court was therefore
obliged to consider the question of costs.
By CPR Part 38.2(1), ‘A claimant has the
right to discontinue the claim at any time’.
Critically however, this is dependent on the
court granting permission to do so under
Rule 38.2(2)(a). In addition, Rule 38.5 clearly
provides that discontinuance takes effect
upon service of the notice of discontinuance.
Questions are now raised as to the effect
of inter partes agreements in drawing the
line indicating when costs cease to be
‘awardable’ to a winning party. Do these
ObtainingCostsAfterDiscontinuancebytheClaimant
DONT GET
BITTEN!
Rovkic v Peacock [2014] EWHC 3729 (TC)
6
6

inherently carry any weight as to calling time
on when the loser pays the winners costs?
In short, the answer is, “no”. Rule 38.5(3)
says discontinuance ‘does not affect
proceedings to deal with any question
of costs.’ Importantly, Rule 38.6(1) reads,
‘Unless the court orders otherwise, a
claimant who discontinues is liable for the
costs which a defendant against whom the
claimant discontinues incurred on or before
the date on which notice of discontinuance
was served on the defendant.’
So, until the claimant actually serves
the notice of discontinuance on the
defendant, he remains liable for the
defendant’s costs up until that date.
This is where things get interesting; Rule
38.6(1) (above), still affords the court the
power to request that the parties bear their
own costs, or indeed that the defendant is
to pay the claimant’s costs. In this case,
the court found, on the facts, that, in
negotiating to settle this matter in part,
the claimant had actually succeeded.
Ordinarily, discontinuance would occur
where the claimant feels he has no real
prospect of success. Here however, the
agreement was worded such that there
would be an ‘obligation to discontinue’,
and that the defendant would still pay
the net sum which the claimant was
claiming from two of its adjudications.
The claimant was duly awarded his costs.
So, what can be taken away from this?
Parties must be minded of the wording
in such settlement agreements. Where
possible, settlement agreements should
expressly refer to the payment of costs.
Tom Loia is currently studying the
Legal Practice Course (LPC) with a
Master’s Degree in Law, at the University
of Law in Moorgate, London, having
previously read Law at The University
of Reading, graduating in 2014.
Tom Loia
7

I
doubt very much whether any of you
have ever received a reserved written
judgment that begins as follows:
‘Agatha Christie might well have entitled
this “The case of the mystery footpath”.
When the path, the subject of this claim,
was built, by whom and who owns the land
upon which it was constructed is either
not known or has not been disclosed.
Furthermore, its status is disputed….’
The case of Canagasingham -v- Kent
County Council was heard on the 6th
November at the Mayor’s & City of
London Court by Judge Andrew Wallis.
The facts of the case are as follows:
Mrs Canagasingham lives within a housing
ndevelopment close to Bluewater shopping
centre in Greenhithe, Kent. There are a set
of descending steps on a footpath leading
from the housing development down to the
shopping centre. The steps were in disrepair
and on 12th October 2010 the Claimant
stumbled and fell as a result of the defective
nature of one of the steps at the top of the
footpath. She sustained multiple minor
injuries, the most severe being an injury
to her right elbow. Damages were agreed
at £10,000 on the morning of the trial.
A claim was intimated to Kent County
Council whose insurers immediately denied
liability on the basis that the footpath was
a public right of way because there had
been 20 years of continuous unfettered
use by the public and therefore they were
not liable to maintain or repair the footpath
and relied upon the case of McGeown –v-
Northern Ireland Housing. Then followed
a plethora of correspondence: We were
told that Kent County Council had no
record of ever maintaining the path in
any capacity whatsoever. In the midst
of correspondence persons who remain
unknown (!) cut back the undergrowth
and repaired the most dangerous of the
many steps. When questioned the insurers
could not tell us who had carried out the
repairs but were able to confirm that in
fact they had in the past inspected and
maintained the path on a reactive basis.
The very limited inspection documents
were eventually extracted from them.
When asked the specific question “Was
this a highway maintainable at the public
expense pursuant to S.41 of the Highways
Act 1980” the response was finally – yes the
path is in fact maintained at public expense
but no it is not a highway subject to S.41.
Tracey Benson is an Associate
with Slater & Gordon who has over
17 years’ experience conducting
all types of personal injury
law, specialising in Employers
Liability & Public Liability work.
Tracey Benson
The Case of the
Mystery Footpath
COVER STORY
8

Due to the rather conflicting information
given by the insurers we set about our own
detective work and obtained a copy of the
definitive map and obtained information
from KCC highways department. We were
told by an officer that the footpath was
maintained at the public expense and given
a copy of the definitive map and statement.
These documents confirmed that the
footpath ‘DR15’ was indeed a public right
of way but it was not clear whether it
was on the Defendant’s lists of highways
maintainable at public expense as required
by S.36(6) of the Highways Act 1980.
The definitive map and statement also
illustrated that at some point footpath DR15
was diverted creating a new DR15 but the
information was not complete. Despite
numerous calls to Kent County Council
and speaking to the Public Rights of Way
Manager, we were simply told that the
footpath in question was not a highway and
the circumstances were complicated but
no further information would be provided.
On the basis of the limited information
available to us it appeared that footpath
DR15 was stopped up by KCC using
the Stopping up of Highways (County
of Kent) (No 2) Order of 1993, made
by the Secretary of State for Transport
pursuant to his powers under S.247
of the Town and Country Planning
Act 1990. The footpath was formally
acknowledged as a public right of way
created by the council on the 1st April 2000.
Section 36(2)(a) of the Highways Act 1980
defines a highway constructed by a highway
authority, otherwise than on behalf of
some other person who is not a highway
authority, as a highway maintainable at the
public expense. (i.e. S.41 would apply).
It appeared from the definitive map that
the public footpath was created by the
highway authority as opposed to some
other person and as such our argument was
that it was a pathway maintainable at public
expense and Section 41 should apply.
Proceedings were commenced referring
to the old DR15 which was stopped up
pursuant to the Stopping up of Highways
Order 1993 and the new DR15 and
pleaded on the basis that the old DR15
was indisputably a highway and the new
DR15 must also be a highway and must be
maintainable at the public expense pursuant
to Section 36(2)(d) of the 1980 Act. In the
alternative the new DR15 was constructed
by a highway authority pursuant to Section
36(2)(a) of the 1980 Act and is therefore a
highway maintainable at the public expense.
A defence was filed denying that the new
footpath known as DR15 was a highway
within the meaning of the Highways Act
1980. KCC relied solely on McGeown
and did not even plead a Section 58
defence. Interestingly the defence gave
us some new information. The route of
the footpath was not built in accordance
with the route specified in the Stopping up
Order and on that basis it was denied that
Section 36(2) of the Highways Act applied
and the footpath was not a highway but
merely a public right of way. The defence
did not expand any more than that!
It was only upon exchange of witness
statements which included a witness
statement from the West Kent Area Public
Right of Way’s Manager (who had been
spoken to prior to the commencement
of proceedings) that the true history of
the footpath was revealed. The old DR15
was stopped up by Ministerial Order
and the Order was advertised in the
London Gazette. The new DR15 had to
be created because the old DR15 was
in the way of development of the now
extensive Bluewater Shopping Centre.
Mr Munn confirmed that the DR15 was
diverted as a result of a Stopping up Order
made by the Secretary of State in 1993
under the Town and Country Planning
Act 1980 and was certified as having
been properly constructed by an officer of
Dartford Borough Council. He specifically
confirmed that normally this would mean
the new footpath would have become a
highway maintainable at public expense.
The County Council’s Definition Team
then made a Definitive Map Modification
Order (DMMO) but made a mistake; the
route that was actually constructed and
certified and for which the DMMO was
made was not the route that was created
by the 1993 Stopping up Order. The actual
route constructed was constructed in the
wrong place! As a result, the Claimant
had her accident on the route that exists
on the ground, but not the route shown
on the Stopping up Order. The reason for
this was that during construction works
the ground was found to be unstable and
following a discussion with the developers,
the route was built in a different place.
It was decided by KCC Legal Department
that a formal variation to the 1993 Stopping
up Order was not required as the new
footpath was constructed just a few
metres away and broadly followed the
same route. Their view was that as long
as the re-sited footpath was adopted
as a public highway and used by the
public, there would be no need for any
further legal formalities as public use
would establish it as a public footpath.
A further meeting in 1997 led to the
decision that the route satisfied the spirit
and intention of the Stopping up Order
and accordingly no formal Variation
Order was required to reflect the slightly
diverted route. KCC subsequently realised
that the legal decision was wrong and
a formal variation of the Stopping up
Order ought to have been carried out.
Whilst the intention had been to create a
highway, the necessary administrative steps
were not taken and therefore the route
was not formally adopted as a highway.
Rather than creating a new DMMO, KCC
took the view that the public had acquired
a right of way through the presumption
of dedication on the route shown on
the definitive map and that the footpath
should simply be known as a public right
of way and not a highway. On that basis
their view was there was no statutory
requirement to maintain pursuant to
Section 41 of the Highways Act 1980.
The full set of circumstances only became
available to the Claimant upon exchange of
witnessstatementsjust3monthsbeforetrial!
We felt that despite the fact the case was
very difficult we would press on to trial.
Our case was that Section 36(2)(d) had
been satisfied. Section 36(2)(d) provides:
‘a highway, being a footpath … created
in consequence of… an order made by
the Ministry of Transport or the Secretary
of State under Section 247 of the Town
and Country Planning Act 1990.’ The
Stopping up Order was expressly made in
exercise of powers under Section 247 of
the Town and Country Planning Act 1990.
The correct legal question we submitted
was whether the new DR15 was created
in consequence of that order. We argued
that it was an insult to the language of
Section 36(2)(d) to find to the contrary. We
maintained that the Defendant’s decision
to construct the path in a slightly different
place did not mean that it was not made in
consequence of the order. We submitted
that “in consequence of” is much wider
than “pursuant to” and leads to the
sensible conclusion that even improper
implementation of the Stopping up Order
does not frustrate the legislative intent in
the 1993 order to replace one highway
maintainable at public expense with
another. We also argued that even if the
Court considered that the implementation
of the order rather than the enabling statues
10

may take precedence, the order itself was
drafted in wide enough terms to cover the
present situation; we strongly argued that
the modification of the definitive map and
reliance thereon was completely irrelevant.
It is of course possible for a public right
of way to also be a highway maintainable
at public expense. We submitted that
the Defendant’s argument was absurd
because taken logically there must still in
fact be a highway maintainable at public
expense where the old DR15 was as it
cannot lawfully have been stopped up.
That would mean there is a physically non
existent DR15 heading over a cliff and
that the path in question is something
completely distinct is equally absurd.
At trial the Manager of Public Rights of
Way at KCC was still unable to say who
had maintained/repaired the path on two
occasions since the date of the Claimant’s
accident and up to trial and confirmed
there was no documentation he could find
concerning the construction of the footpath.
Judge Wallis provided a detailed draft
judgment just 2 working days after the
trial and agreed with Claimant’s Counsel,
Robert McAllister’s submissions and
described the Defendant’s stance as
unattractively opportunistic. He agreed
that “in consequence of” has a wider ambit
than “pursuant to” and was of the view
that it was clear the path only came into
existence as a result of the shopping centre
development which itself gave rise to the
1993 Order and therefore must be a highway
maintainable at the public expense. He
was also very unimpressed that despite
the reams of documentation that must
have been created, the County Council did
not know by whom the path was built and
were unable to produce any disclosure.
Judge Wallis went on to consider whether
the council had maintained the path as
required by Section 41 and found in the
Claimant’s favour that they had not. A
Section 58 defence was not pleaded but
Judge Wallis also said that insofar as any
reliance upon Section 58 was suggested,
that it would have failed. Contributory
negligence was not pursued by the
Defendants and therefore judgment was
given in the agreed sum of £10,000.
A few days later the Defendants made
an application for permission to appeal.
Submissions were made regarding the
permission to appeal and the subject of
costs. The Judge agreed that in the interests
of clarity and certainty for a public authority
as to the status of a new footpath is a
compelling reason why an appeal should
be heard. He therefore gave permission
on both grounds but on the condition that
any appeal would be limited to the issue
of whether the path is maintainable at the
public expense and the Defendant will pay
all of the Claimant’s costs of any appeal
regardless of its outcome. The reason for
this is because the issue to be determined by
any appeal would essentially be one of public
law. He relied on the remarks of Jackson
J (as then was) in Morris –v- Wrexham.
The case of the mystery footpath
remains unsolved …
To be continued.
11

Professor Dominic Regan
is the leading authority,
orator and wit on all things
Civil Procedure and the
Jackson Reforms. As well
as his many contributions to
Inside Law, he is regular Wine
Critic for Counsel Magazine,
Columnist for New Law
Journal and visiting professor
at City University London.
Dominic Regan
10GREEN
BOTTLES
1. Tesco own label non-vintage champagne.
Normally, this is £19.99 and worth it, but
deals abound at the moment and you might
well get it for less. The quality is staggering.
2. Aldi Champagne £12.99. I tried their brand 2
years ago and hated it. The current offering has
been in the bottle for 4 years and has that fine
rich flavour which is the sign of a vintage bottle.
3. Aldi also stock a Sparkling French Blanquette
for £7. Only bottles from the Champagne
region in Eastern France can be labelled as
such. This is sound and award winning fizz.
4. Aldi Toscano is a fruity Italian red for £4-
50. It is not heavy. A great party wine but
it would support a pasta perfectly as well.
5. Several supermarkets stock reds from the
Rhone valley made by the reputable Cellier
Des Dauphins. Typically, you taste a zingy
peppery flavour. Again, not heavy so flexible.
6. Tesco 2010 Barolo at £14.99 is a big, opulent
wine if you want a treat. Barolo is on the up and
this is cheap for the quality. Perfect with beef.
7. Wolf Blass Chardonnay is widely available.
Listed at a tenner it is regularly on promotion
and I would like to think it a good buy at £7 or so.
8. The Ned Sauvignon Blanc is sold at Waitrose
and Majestic. Decent. The price jumps
about. Worth it at £7 (though not at a tenner).
9. Tesco Finest Fiano is a classy Italian wine.
Smooth and fruity. Lovely and gentle. £7.
10. Pudding wines are opulent. Provided you
are able to snooze afterwards I recommend
Campbell’s Muscat, sold by the half bottle
for perhaps £10. Big, boozy and rich.
H
e’s no stranger to the pages of Inside Law in his capacity as “leading expert in the
field of civil procedure and adviser to the top judiciary on law reform”, but as this
edition spans what for many of us is a festive time of year, we have invited Counsel
Magazine’s wine critic Dominic Regan, to share his Top Ten Tips for Fair-Priced Festive Tipple.
Here is a list of 10 bottles that I regard as fabulous quality at fair prices. You need not spend vast
sums to acquire a lovely glass.

Steve has over 20 years of efficient
and established experience in high
value personal injury and clinical
negligence claims, in (but not limited
to) preparation of all types of Bill of
Costs, advice, Points of Dispute and
Replies, with a proven track record
in Trade Union matters and Legally
Aided clients. He regularly undertakes
Budgeting work and has experience
with the preparation of Costs Budgets.
Contact Steve at steve@rcostings.
co.uk or call on 01480 463499.
Steve Jepson

I
n early September 2014, the LEDES
Oversight Committee (LOC), approved
a set of computerised codes known
as J-Codes.
The Committee was set up in response to
the review of litigation costs undertaken
by Lord Justice Jackson, resulting in what
have become known as ‘the Jackson
Reforms’. The purpose of the LOC was
to oversee the development of a set of
computerised uniform time recording codes
which will be implemented by the Legal
Profession in England and Wales. These
codes are intended to assist Courts and
other Parties to summarise and analyse
time worked and costs incurred during
a litigation case. It is further intended
that they will be used in the preparation
of both Bills of Costs and Budgets.
J-Codes are essentially a set of litigation
task codes developed for time recording
purposes, by reference to ‘phases, tasks
and activities’, as part of the objective of
developing a new model form Bill of Costs,
for use by the Courts in England and Wales.
So, what are the J-codes?
The J-Codes represent the first step towards
the new model form Bill of Costs, the second
step being the Bill itself, which although in
advanced stages has not yet been approved.
TheJ-Codesareasetofstandardisedcodes,
spread over 3 levels, for use in time recording
that will categorise every activity undertaken
in any case such as routine communications
ie: letters, emails, telephone calls, personal
attendances, long telephone conversations
and other work such as drafting, research,
reviewing and consideration (ie: Task
Codes) within the civil litigation process
for costs assessment purposes, and will
be further categorised within the Phases
(ie: Phase Codes) as contained within the
existing Budget in Precedent Form H. In
addition, disbursements will be recorded
within the third level (ie: Activity Codes).
How will the J-codes work?
TheTaskCodes,whichwillberecordedbythe
fee earner, will be able to generate a formal
Bill of Costs for assessment purposes. Each
Task is specific to a Phase. The same Task
Codes will therefore be linked to the Phase
Codes which in turn will be able to generate
a Budget in Precedent Form H format.
Software
The LEDES Oversight Committee large-
ly comprises legal software vendors
and large law firms ie: the key parties
that will either develop or use the soft-
ware on which the J-Codes are based.
Clearly new software will be required
but some existing software providers
may, I am sure, be in the process of
developing and ultimately be providing
‘bolt-ons’ or additions to existing software.
However, as with the recent introduction
of the Budget in Precedent H Format, the
purchase and use of such software will
not be compulsory, for the preparation
of the new model Bill of Costs.
J-Codes – Generally
The idea of software that can automatically
generate Bills and Budgets is not a new
one, as this type of software already exists,
however, as a general word of caution, it is
wise to be wary of any document produced
with unfiltered automatic data processing
and especially so as the J-Codes are not
user friendly and their complexity may
well detract potential users. This is quite
understandable as with anything connected
to the computerised world, the end result
is only as good as the data inputted.
This is where the expertise of your
Costs Draftsman in producing Bills,
Schedules and lately, Budgets, is vital
in achieving an acceptable result.
The future
At the moment, the J-Codes have no
status in the rules, clearly, as the Bill of
Costs has yet to be developed. Once the
new model Bill of Costs is released and
approved then those that have been using
the J-codes will be at a distinct advantage.
TheuseofJ-Codesmaybeextendedtoother
areas of Civil Ligation, such as family cases.
Reference:
A copy of the approved J-Codes, and
the report that accompanies it, is now
available from the Uniform Task Based
Management System website: http://
utbms.com/jackson-ew-utbms/
For further reading on the J-Codes see
the following:
Main guideline document that provides
the details of the J-Codes: http://bit.
ly/1uwWIQl. Letter from the Judiciary
of England and Wales requesting LOC
ratification/endorsement : http://bit.
ly/1pfCUoJ
CODESOF
J
THEARRIVAL
15

Are Fixed Costs in
Multi-Track Cases
On The Horizon?
O
n the 30 September 2014, Lord
Justice Jackson gave the keynote
speechattheInauguralConference
of the Costs Law Reports. Describing the
occasion as a “joyous” one, he took the
opportunity to review the progress of
the civil justice reforms promulgated
on the back of his recommendations as
set out in the Review of Civil Litigation
Costs Final Report (“Final Report”).
A considerable portion of the speech
was devoted to the question of fixed
costs. As Lord Justice Jackson noted
“one simple way of ensuring that costs
are proportionate is to introduce fixed
costs or scale costs. Such costs are, by
definition, proportionate and they obviate
the need for detailed assessment.”
The Final Report, now nearly 5 years
old, recommended that costs in all fast track
cases should be fixed. It also recommended
that a scheme of scale costs be introduced
for Intellectual Property cases in the Patents
County Court (now the Intellectual Property
Enterprise Court). Most importantly, for
present purposes, the Report recommended
that after fixed costs had been introduced
into the fast track, serious consideration
should be given to introducing fixed costs
into the lower reaches of the multitrack:
“2.10 Once the necessary reforms have
been implemented in the fast track and
in multitrack cases in the Patents County
Court (the “PCC”), there must be a period
of evaluation. Following that period of
evaluation, I recommend that further
consideration should be given to the
possibility of introducing a scheme of fixed
costs or scale costs into the lower reaches
of the multi-track. When that consideration
takes place, the views of court users
should be elicited by surveys of the kind
thattheFSBkindlyundertookduringPhase
2. Such surveys should be undertaken
on a more extensive basis amongst a
variety of categories of court users.
2.11 If, following that future consultation
process, any scheme of fixed costs or
scale costs is to be adopted, there will
be a variety of models for consideration.
One model would be a system of scale
costs subject to an overall cap, such as
that which is planned for the PCC. Another
model would be the CMS scheme. A third
model would be a scheme of fixed costs of
the kind operated in Germany. The German
costs regime is described in PR chapter
55. Since the German civil justice system
is structured differently from our own, the
German costs rules could be a general
guide but not, of course, a template.”
Fixed costs for fast track personal injury
cases were introduced on 1 April 2013.
Lord Justice Jackson considered the new
scheme to have been extremely successful.
He referred to reforms in relation to IP cases.
Since October 2010, the recoverable costs
for determining liability in IP claims were
capped at £50,000. The recoverable costs
for determining quantum were capped at
£25,000. Lord Justice Jackson opined
that these reforms had not “made the
Intellectual Property Enterprise Court any
less attractive to users. Quite the opposite
is the case.” He reached this conclusion on
the basis that the number of new cases in
that court had doubled in the two years
following implementation of the reforms.
The most interesting part of the speech
concerned Lord Justice Jackson’s
present views on the introduction of
fixed or scaled costs to multitrack cases.
Lord Justice Jackson referred back to the
Final Report and the proposals contained
therein for the introduction of fixed
recoverable costs for lower value multi-track
cases. He alluded to the scheme proposed
by CMC Cameron McKenna LLP for fixing
costs in cases up to a value of £250,000.
• If the case settles pre-issue, recoverable
costs would be 10% of the settlement
sum.
• If the case settles post-iss ue, but
pre-allocation, the percentage goes
up to 15%.
• The percentage would then rise in
stages. If the action proceeded to trial,
recoverable costs would be 40% of the
judgements on (or of the sum claimed,
if the defendant is the victor).
In his speech he noted “Five years have
now elapsed since the publication of the
FR. The recommendations for fixing costs
in the Intellectual Property Enterprise Court
and the fast track (except for non-personal
injury cases) have all been implemented.
The time has now come to take stock
and to develop a scheme for fixed costs
1616

Vincent is a Barrister with 9
Gough Square. His practice
encompasses two principal areas,
personal injury and police
law. He has been described in
C h a m b e r s & P a r t n e r s a s
“an extremely astute barrister of
undoubtedly high ability”.
Vincent Williams
in the lower reaches of the multi-track.”
Lord Justice Jackson believed the
introduction of fixed costs to multitrack
personal injury cases to be desirable
because it would dispense with the need
for costs management and costs budgeting
in cases valued at less than £250,000. “At
the same time litigants will have certainty as
to (a) their costs exposure if they lose and (b)
their future costs recovery if they win.” He
referred to the President of the Association of
HM District Judges who had stated that there
was “overwhelming support” for fixed costs
both in the FastTrack, and in the lower value
multi-track cases. The President had “not
heard a voice which dissents from this view.”
One can, perhaps, see why the majority
of District Judges would be keen on such
a scheme. Whether such enthusiasm
is shared by legal practitioners, and
costs draughtsman, is less clear.
If a fixed costs regime is extended to
personal injury multitrack cases of a value
up to £250,000, the reality the situation is
that the vast majority of personal injury cases
will fall within that fixed costs regime. The
number of cases valued at over £250,000
must represent a very small proportion
of the overall total number of cases.
Whilst there is undoubtedly a powerful
argument in favour of fixed costs in relation
to fast track cases, those arguments become
less persuasive in relation to larger and
frequently more complex multi-track
cases. The assessment of costs in such
cases will become an essentially arbitrary
exercise, bearing no real relationship to
the complexity of the individual case. As
one commentator has noted1
, fixed costs
are not meant to produce a “reasonable”
figure on an individual case basis; at best
they are designed to produce an average
figure that is reasonable across a range
of cases. Undoubtedly true – but of little
consolation to the practitioner working
on a difficult and unpredictable case.
Kerry Underwood, on the other hand,
appearssanguineinrelationtothesuggested
changes - at least in so far as solicitors
are concerned2
. He makes the point that
the fixed percentages/fees are likely to
include counsel`s fees but exclude VAT and
disbursements. In other words counsel`s
fees will be included in the solicitor`s fixed
fee. “The potential massive losers here are
barristers. Once solicitors are paying counsel
out of their own fixed fees things change.”
One might add costs lawyers and costs
draughtsmen to the list of `massive losers`.
The Association of Costs Lawyers annual
survey revealed a very significant rise in
demand for costs lawyers. Some 59%
of those surveyed said the reforms had
led to an expansion in their practices.
Whatever the lawyers` perspective, from
1 See Gibbs Wyatt Stone, 20th October 2014
(Lexis Nexis).
2 See `Fixed Recoverable Costs in All
Civil Cases Up To £250,000”: https://ker-
ryunderwood.wordpress.com/2014/10/03/
fixed-recoverable-costs-in-all-civil-cases-up-
to-250000/.
a litigant`s point of view, the scheme may
well prove to be attractive: the certainty
of knowing maximum exposure and
maximum recovery may outweigh the fact
that overall recovery is likely to be reduced.
Will the fixed costs regime be extended to
multitrack cases; and if so, when? There
appears to be strong judicial support for
the proposals, from district judge level and
probably up to the Master of the Rolls. Lord
Justice Dyson, as he then was, submitted a
personal response to Lord Justice Jackson’s
initial report supporting the introduction
of fixed costs or scale costs for multi-
track claims up to at least £100,000.
As with all these things, the real determinant
will be political will. It is likely that Government
will have its hands full in the next couple
of years but do not be surprised if the
recommended reforms are implemented
at some point late in the next Parliament.
A final note. In a speech given at the Labour
Party Conference, Andrew Slaughter MP
and Shadow Justice Minister, indicated
whilst there would be no money available
to repeal the legal aid changes, Labour
would be willing to look at those parts of
the Legal Aid, Sentencing and Punishment
of Offenders Act relating to CFA’s which
were politically motivated. Of course, the
chances of Labour winning the next election
are anyone’s guess. Even if they do, one
suspects that amending the CFA regulations
will not be especially high on their agenda.
1717

I
n 2009 Mr Justice Davis in Roach v.
Home Office [2009] EWHC 312 (QB) set
out the principle that inquest costs were
recoverable as costs of and incidental to
the civil proceedings but warned that:
“I would however wish to add an observation
on the question of proportionality. There
may well be cases where the costs of
antecedent proceedings claimed as
incidental costs are so large by reference
to the amount of damages at stake and/
or the direct costs of the subsequent civil
proceedings, if taken entirely on their own,
that a Costs Judge will wish to consider
very carefully the issue of proportionality”.
Now, some 5 years later, Master Rowley in
Lynch v. Chief Constable of Warwickshire
Police, Warwickshire County Council and
Coventry and Warwickshire NHS Trust, does
just that. Master Rowley was faced with a
Bill of Costs containing £750,000.00 in costs
arising from an inquest. In considering Roach
v.HomeOfficeMasterRowleyheldthatitwas:
“inconceivable that the approach adopted by
the Claimants in this case would be upheld
as a proportionate method of bringing
these claims to a civil hearing. No case
managing judge would allow sums of the
magnitude claimed here to be spent in the
working up of the claim before the close
of pleadings in the court proceedings”.
The case of Lynch concerned the murder of
Colette Lynch by her former partner Percy
Wright in 2005. Prior to the murder Colette
andmembersofherfamilyhadcontactedthe
policetoseekhelponanumberofoccasions.
The claim was brought by the victims mother
following her murder. An inquest took
place in 2009 and lasted over 3 months.
MasterRowleyconsideredthethreeprinciples
as set out in Re Gibsons Settlement Trusts
[1981] 1 All ER 233 in considering the costs
of attending the inquest. Costs must be:
Of at least potential benefit to the Claimant;
Relate in some way to the issues
which arise or are likely to arise in
the proceedings concerned; and
Attributable in some way to the Defendant.
Master Rowley found the costs of attending
the inquest to be globally disproportionate
and in assessing the costs of the inquest he
applied the principles set out in Roach and
Re Gibsons Settlement Trusts and extracted
periods of time that were incidental to the
civil claim and allowed only reasonable
costs for those extracted periods.
Master Rowley did indicate that his
conclusions related to this claim alone
however it is clear that a hard line will be
taken when costs arising from an inquest
are assessed.
Helen is a Law Costs Draftsman
with R Costings. She joined as
a Trainee Costs Draftsman in
September 2013 shortly after
graduating from Northumbria
University, having studied the
Graduate Diploma in Law and
the Legal Practice Course.
Contact Helen at
helen@rcostings.co.uk
or call on 01480 463499.
Helen Dunn
TheKeytoInquestCosts
Proportionality
1818

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