It is so obvious, but often needs repeating, that costs aren’t something that just happen at the end of cases. Here are a few reminders of how you can help yourself to maximise your recoverable costs.
Let’s start at the beginning. Have you reviewed your standard retainers recently? Have you ensured that they include an entitlement to retain any recovered interest and any 10% uplift arising from bettering a Part 36 offer made on behalf of your client (such monies will belong to the client in the absence of a specific term)? Are the hourly rates appropriate? Does your retainer allow for rates to be reviewed annually? If so, have you done that and notified the client accordingly? We see so many cases where this has not been done. Have you given notice of cancellation rights where appropriate? Don’t get caught out by the “distance selling” regulations. With increasing numbers of cases involving fixed costs does your retainer provide for you to charge them to you Client in full? If not, and the work done on the file is less than the fixed fee, the balance may be due to your Client.
ii. Settlement terms
Let’s bookend this discussion by looking at the conclusion. In cases which settle without proceedings, have you made sure there is a clear unambiguous entitlement to costs from your opponent? In some cases there is no automatic entitlement to costs and there are many insurers who will seek to avoid any liability due to a lack of a contractual agreement. Don’t get left high and dry by agreeing the damages but failing to make a condition precedent that costs must also be part of the settlement.
iii. Time recording
Good time recording is essential if you are going to recover costs for the time spent on any case. With many cases now subject to fixed fees and with “paperless” provisional assessments, the importance of detailed file notes may be considered less important – but it may well happen that you will end up being able to recover costs on the standard basis. Detail in notes will reap rewards. Try to avoid one-liners like “reviewing medical records – 30 minutes” – the judiciary can be sceptical at times. How often have we seen “file review” disallowed because the Judge thinks this is just part of the standard case management process, whereas it may well be an entirely reasonable review to ensure that all avenues are being properly explored.
iv. Interim payments for costs
Try and agree an interim payment for costs when settling damages. If there are proceedings, try and include it within the final order. Judges are normally amenable to such a request and it certainly improves cashflow. There is no entitlement to an interim costs certificate until the bill has been lodged for assessment – it is always worthwhile remembering to make such an application where necessary, but so much better if you have an interim early on in the detailed assessment process.
v. AND FINALLY
You know this already, but no costs briefing is complete these days without mentioning it….. don’t miss that deadline for filing and serving your budget. The consequences of failure can be catastrophic.
Once you have helped yourself with these reminders, why not let us take care of all your further costs requirements? We are here to help in the course of the action with costs budgets and attendance at hearings relating to them. Of course, we are also here to help with drawing bills of costs and the whole of the assessment process.