I could really do with a bit of legal help

Posted by: ARC on 16 April 2004

I posted a while ago about some problems my brother was having with legal costs from the other side (defendant) having lost a claim for compensation for an injury at work, he was legally aided.

Things have progressed somewhat but the confusion has only increased. I have a couple of questions for anyone who may know (we have totally lost confidence in my brother's solicitor) and are currently seeking a better one.

1) If costs are awarded against you, who would do that and when? Bearing in mind there was a 15 month gap between the date of my brother's final appeal and the arrival of the request for costs I have some doubt as to whether they were awarded at all. I need to know how to find proof that they were indeed awarded.

2) If costs were not awarded against my brother and the other side are trying it on as it were is there any requirement to pay?

The other side are now willing to accept £22K instead of the original £34K, should we just try and scrape it together to sort this out.

Our solicitor stated that the costs of a case go with the loss and whilst we can dispute them we should pay. When I spoke to a solicitor at the actual legal services commission today he said that it is true that costs go with a loss but not for a legally aided claimant. It is actually very uncommon but not unheard of for costs to be awarded against a publically funded person. When costs are awarded against a person in that position it is usually only if the judge expects the person to have lied or something as serious.

Any help as to the costs process would be much appreciated.

Sorry if this is a bit garbled, 3 days of waiting by the phone for help from the CAB and LSC has taken its toll.

THanks Brendan
Posted on: 16 April 2004 by Justin
An order from the court awarding costs would have been sent to your brother, no? He would have received this order directly from the court. In addition, I cannot imagine that the defendant would not have referenced the order in his request for costs.

If costs have been awarded, there will be an order. That is my guess. I don't live in the UK, but I can't believe that courts order things without written orders served on both parties.

judd
Posted on: 17 April 2004 by ARC
Thanks for the replies.

We assumed that there would be something in writing issued to our solicitor about costs but have not seen it. We will try and get a copy from the solicitor and discuss it with the legal services commission for some independent advice. At present we feel that having read the legal aid regulations about cost protection that if costs were awarded then these should be claimed via the legal services commission directly. Our solicitor doesn't seem to know about these regulations so we are having to do the leg work ourselves and keep aware of the fact that a little bit ok knowledge is a dangerous thing.

Brendan
Posted on: 18 April 2004 by Harvey
Wow, that's a suspiciously large cut in the bill. Was this after detailed assessment? If not has your costs guy looked at the bill? If thta cut is voluntary it would kind of question their fides in the original billing and I would definitely want a look to see how much of what's left is BS. The lawyer's mantra ABB (always be billing)can be a license to print for some unscrupulous practices. I also didn't think that LSC plaintiffs ever paid costs but that's not based on any specific knowledge or experience. If you've spoken to the LSC and they also say this then you need to chase this up with them.

Your lawyer is obliged under the CPR44 to provide you with details of any adverse costs i.e. a copy of the costs order which they WILL have received from the court within weeks of the order being made. I don't know what efforts you've made to this end but if your lawyerr is showing any reluctance you need to be extremely forceful and suggest that you may have to pass the matter to the Law Society.
If this has been dragging on for a while I would
1.speak to the Law Society anyway to cover your ass and find out if you're being jerked about.
2.speak to the LSC about your case in detail
3.Defintiely get a copy of the original costs order. Tell the court if your lawyer is stalling, you might be lucky though they proabably won't send a copy directly to you
4.Get a costs guy to look over the bill or get a detailed assessment at the court.

In these circumstances time is your enemy. You need to start shaking some trees to get the fruit to drop.

Might help if you have a look at the rules I referred to above as the whole costs prcedure is laid out in reasonably plain english http://www.courtservice.gov.uk/using_courts/guides_notices/notices/scco/guide/preliminary.htm

Section 2 is most relevant to you but I would recommend having a a look at the rest for a broader picture.
Posted on: 18 April 2004 by ARC
Harvey,

Thank you for the reply, the link to the court sevice is very useful. In particular sections 2, 4 and 25 are helpful. Assuming costs were awarded against my brother section 25 of that document along with sections 21 to 23 of the costs practice directions should at least allow us to keep track of whether my brother or the LSC are liable.

The decrease in the costs from £34 to 22.5K came about after my brother's solicitore wrote to them and stated that she thought their costs were excessive in comparison to their own.

Brendan
Posted on: 18 April 2004 by Harvey
It's a pleasure. Glad to be of any help.

Just got to say though, that the notion that the defendant's lawyer got a letter from your guy asking him to cut 35% off his bill on the basis that his bill was £22k and he said "yeah ok" sounds highly suspect. I don't work in this area so although £22k doesn't sound excessive to me, who knows what they've done and it'd be nice to see this. I wouldn't drop a cent from a bill without a detailed list of points of dispute, clear cut evidence of bulking and a great deal of negotiation. If there was 35% of clear bulking in a bill I'd be expected to answer some very difficult questions about my competence.

I say go back to my last post and work through the steps. Clap eyes on that order, speak to the LSC, ask about your case and why you should pay (get them to reference the relevant regs) and get someone with smarts to run through that bill. At least if you have to pay up you won't lie in bed at night wondering if you've been turned over and could have avoided it.

Goes without saying that none of this is legal advice, just common sense and a hopefully helpful nod in the right direction.