1. Medical Negligence Litigation Conference 2019
Costs Updates

2. Michael Monaghan : Abacus Ireland
Speakers
Michael Monaghan : Abacus Ireland
Nick Portch : Abacus UK

3. Introduction
Update on the costs aspects of the Legal Services Regulation Act 2015
Recovery of two Senior Counsel
Split/Modular Trials
The importance of making a lodgement

4. Legal Services Regulation Act 2015
New Office of Legal Costs Adjudicators
Information to be given to clients
Fees of Junior Counsel – no longer a percentage of the fees of Senior Counsel

5. Legal Services Regulation Act 2015
Part 10 - Legal Costs
Part 11 – Legal Costs in Civil Proceedings
Schedule 1 – Principles Relating To Legal Costs

6. Legal Services Regulation Act 2015
Prohibitions on charging costs in certain circumstances: 149. (1) A legal practitioner shall not charge any amount in respect of legal costs if— (a) they are legal costs in connection with contentious business expressed as a specified percentage or proportion of any damages (or other moneys) that may be or become payable to his or her client, other than in relation to a matter seeking only to recover a debt or liquidated demand, or (b) they purport to set the legal costs to be charged to a junior counsel as a specified percentage or proportion of the legal costs paid to a Senior Counsel.

7. Legal Services Regulation Act 2015
Section 155(4): (4) the Legal Costs Adjudicator shall, as respects a matter or item the subject of the application— (a) verify that the matter or item represents work that was actually done, (b) determine whether or not in the circumstances it was appropriate that a charge be made for the work concerned or the disbursement concerned, (c) determine what a fair and reasonable charge for that work or disbursement would be in the circumstances, and (d) determine whether or not the costs relating to the matter or item concerned were reasonably incurred.

8. Legal Services Regulation Act 2015
Section 155(5): (5) In applying subsection (4) the Legal Costs Adjudicator shall, so far as reasonably practicable, ascertain, in relation to work (including work to which a disbursement relates)— (a) the nature, extent and value of the work, (b) who carried out the work, and (c) The time taken to carry out the work

9. Legal Services Regulation Act 2015
Section 157(3):
(3) a Legal Costs Adjudicator shall confirm the charge in respect
of an item of legal costs the subject of the application if, having regard to the matters that he or she considered and ascertained under section 155, he or she considers that—
charging in respect of the item is fair and reasonable in the circumstances, and
(b) the amount charged in the bill of costs in respect of that item is fair and reasonable in the circumstances.

10. Legal Services Regulation Act 2015
Section 157(4): (4) A Legal Costs Adjudicator shall, if he or she determines that it is fair and reasonable to charge an amount in respect of an item but that the amount of the charge in respect of the item is not fair and reasonable, determine a different amount to be charged in respect of that item.

11. Legal Services Regulation Act 2015
Schedule 1 to LSRA 2015: 1. A Legal Costs Adjudicator shall apply the following principles in adjudicating on a bill of costs pursuant to an application pursuant to section 154: (a) that the costs have been reasonably incurred, and (b) that the costs are reasonable in amount.

12. Legal Services Regulation Act 2015
Schedule 1 to LSRA 2015:
2. In determining whether the costs are reasonable in amount a Legal Costs Adjudicator shall consider each of the following matters, where applicable:
(a) the complexity and novelty of the issues involved in the legal work;
(b) the skill or specialised knowledge relevant to the matter which the legal
practitioner has applied to the matter;
(c) the time and labour that the legal practitioner has reasonably expended on
the matter;
(d) the urgency attached to the matter by the client and whether this requires or required the legal practitioner to give priority to that matter over other
matters;

13. Legal Services Regulation Act 2015
(e) the place and circumstances in which the matter was transacted; (f) the number, importance and complexity of the documents that the legal practitioner was required to draft, prepare or examine; (g) where money, property or an interest in property is involved, the amount of the money, or the value of the property or the interest in the property concerned; (h) whether or not there is an agreement to limit the liability of the legal practitioner pursuant to section 48; (i) whether or not the legal practitioner necessarily undertook research or investigative work and, if so, the timescale within which such work was required to be completed; (j) the use and costs of expert witnesses or other expertise engaged by the legal practitioner and whether such costs were necessary and reasonable.

14. Legal Services Regulation Act 2015
Plus ca change? Isabelle Sheehan (a minor) v David Corr [2017] IESC 44

15. Legal Services Regulation Act 2015
Isabelle Sheehan (a minor) v David Corr [2017] IESC 44
The Court of Appeal said the Taxing Master should have:
“considered the time and labour expended by the solicitors and assessed the number of hours spent, the seniority of the solicitor involved, the hourly rate for each solicitor and the appropriate professional charge for each element of the professional service”
And:
“every bill of costs must set out the time and labour spent on each element of the case”

16. Legal Services Regulation Act 2015
Isabelle Sheehan (a minor) v David Corr [2017] IESC 44
The Supreme Court disagreed – the Bill of Costs, as presented, was not inconsistent with the requirements of Order 99.
The amount of time spent on a case should not be elevated above the other Order 99 Rule 37(22) factors.

17. Legal Services Regulation Act 2015
Isabelle Sheehan (a minor) v David Corr [2017] IESC 44
Obiter comments of the Supreme Court on the general instructions fee:
“it is not satisfactory that the paying party who receives a Bill of Costs, in relation to the largest charge in the bill, the Solicitors’ instructions fee, is presented with pages and pages of narrative at the end of which is a single omnibus charge for all of the work as set out”.

18. Legal Services Regulation Act 2015
Section 168(2) - the order for costs may include an order that a party shall pay—
(a) a portion of another party’s costs,
(b) costs from or until a specified date, including a date before the proceedings were commenced,
(c) costs relating to one or more particular steps in the proceedings,
(d) where a party is partially successful in the proceedings, costs relating to the successful element or elements of the proceedings, and
(e) Interest on costs from or until a specified date, including a date before the judgment

19. Legal Services Regulation Act 2015
Conduct – Section 169(1)
169. (1) A party who is entirely successful in civil proceedings is entitled to an award of costs against a party who is not successful in those proceedings, unless the court orders otherwise, having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties, including—
(a) conduct before and during the proceedings,
(b) whether it was reasonable for a party to raise, pursue or contest one or more issues in the proceedings,
(c) the manner in which the parties conducted all or any part of their cases,
(d) whether a successful party exaggerated his or her claim,
(e) whether a party made a payment into court and the date of that payment,

20. Legal Services Regulation Act 2015
Conduct – Section 169(1)
(f) whether a party made an offer to settle the matter the subject of the proceedings, and if so, the date, terms and circumstances of that offer, and
(g) where the parties were invited by the court to settle the claim (whether by
mediation or otherwise) and the court considers that one or more than one of the parties was or were unreasonable in refusing to engage in the settlement
discussions or in mediation.

21. Legal Services Regulation Act 2015
Discontinuance – beware!
Section 169(4):
(4) Unless the court before which civil proceedings were commenced orders otherwise, or the parties to those proceedings agree otherwise, a party who discontinues or abandons the proceedings after they are commenced (including discontinuance or abandonment of an appeal) is liable to pay the reasonable costs of every other party who has incurred costs in the defence of the civil proceedings concerned until the discontinuance or abandonment.

22. Legal Services Regulation Act 2015
Part 15 – The Clinical Negligence Pre-action Protocol
Section 32C:
32C. The court in which a clinical negligence action is brought, on hearing the action, may:
(b) order that a party who has not complied with a requirement of the
pre-action protocol pay the costs, or part of the costs, of the other
party or parties (including, where appropriate, on an indemnity
basis);

23. The instruction of two Senior Counsel
Benjamin Gillick v The Children’s University Hospital Taxing Master Behan – 12th December 2017
The instruction of two Senior Counsel

24. Split Trials
Order 25 of the RSC allows the party to apply to have a point of law determined prior to the hearing.
“Any party shall be entitled to raise, by his pleading, any point of law, and any point so raised shall be disposed of by the Judge who tries the cause at or after the trial, provided that by consent of the parties, or by order of the Court on the application of either party, the same may be set down for hearing and disposed of at any time before the trial.
If, in the opinion of the Court, the decision of such point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set off, counterclaim, or reply therein, the Court may thereupon dismiss the action or make such other order therein as may be just.

25. Benefits of a Split Trial/Modular Trial
Split Trials
Benefits of a Split Trial/Modular Trial
By directing a preliminary issue in a case or a modular trial, in the context of a trial in respect of liability being dealt with separately to the issues of quantum, this can be an effective way of making the best use of the Court time and avoiding any unnecessary costs.

26. Advantages of a Split Trial
Split Trials
Advantages of a Split Trial
A split trial, in terms of liability and quantum has the major benefit of providing certainty as to the eventual outcome of the case.
The common feature in clinical negligence and high value personal injuries claims, is often the situation that causation of some injury and the extent of that injury are linked, this should not trump the benefits of having liability dealt with first in a split trial.

27. Split Trials
The Courts will take into account a number of issues including:-
Are the issues to tried by way of a split trial readily capable of determination in isolation from the other disputed issues?
Is there is a clear saving in Court time and costs, has this been identified?
Would a split trial order result in any prejudice to the parties?
Is the application a device to suit the moving party or does it genuinely assist the litigation by helping to resolve these issues?

28. The Importance of Making a Lodgement
Order 22.1 (i) in any action for a debt or damages or in an admiralty action the Defendant may at any time after he has entered an appearance in the action and before it is set down for trial, or at any later time by leave of the Court, upon notice to the Plaintiff, pay into Court a sum of money in satisfaction of the claim or (where several causes of action are joined in one action) in satisfaction of one or more of the causes of action.
Order 22.4 (i) where money is paid into Court under Rule 1 the Plaintiff may, within 14 days of the receipt of Notice of Payment into Court, or within such period as may be agreed upon by the parties, accept the whole sum or any one or more of the specified sums in satisfaction of the claim or in satisfaction of the cause or causes of action to which the specified sum or sums relate, by giving notice to the Defendant in the Form 6 in Appendix C and thereupon he shall he entitled to receive payment of the accepted sum or sums in satisfaction as aforesaid.

29. The Importance of Making a Lodgement
Order 22.6: If the Plaintiff does not accept, in satisfaction of the claim or cause of action in respect of which the payment into Court has been made, the sum so paid in but proceeds with the action in respect of such claim or cause of action, or any part thereof, and is not awarded more than, the amount paid into Court, then, unless the Judge at the trial shall for special cause shown and mentioned in the order otherwise direct, the following provisions shall apply:

30. The Importance of Making a Lodgement
(i) If the amount paid into Court exceeds the amount awarded to the Plaintiff, the excess shall be repaid to the Defendant and the balance shall be retained by the Court.
(ii) The Plaintiff shall be entitled to the costs of the action up to the time when such payment into Court was made and of the issues or issue, if any, upon which he shall have succeeded.
(iii) The Defendant shall be entitled to the costs of the action from the time such payment into Court was made other than such issues or issue as aforesaid.
(iv) The costs mentioned at Paragraphs (ii) and (iii) hereof shall be set off against each other; and if the balance shall be in favour of the Defendant, the amount thereof shall be satisfied pro tanto out of the money remaining in Court and, insofar as the money remaining in Court is not sufficient to satisfy the same, shall be recoverable from the Plaintiff; or if the balance shall be in favour of the Plaintiff, the amount thereof shall be recoverable from the Defendant.

31. Margaret Brown v Peter Van Geene & Others
 2018 IEHC 24
Important principles in respect of:
Costs should follow the event.
Conduct of the parties.
Liability v causation.

32. Specific queries? - please contact us! michael@abacuslawcosts.ie