Immigration Law Newsletter – December 2019

The first edition of the Complete Counsel ‘Immigration Law’ newsletter is now available for download.

It features an article on ‘the DO NOT’s of adducing evidence in asylum claims
based upon sexual orientation’ by our barrister Lorraine Mensah.

Click here to view the PDF.

Michelle Fanneran in the latest PIC Magazine

Complete Counsel barrister Michelle Fanneran appears in the Winter 2019 issue of the PIC Legal Magazine.

View the magazine online here – Michelle appears on page 12 where she writes about inquest costs. Visit the PIC Legal website here for more information.

Michelle Fanneran features in Liverpool Law Magazine

In the latest update from Complete Counsel, Liverpool Law Magazine posed some questions to Michelle Fanneran about her career and how Complete Counsel differs from others Chambers.

Click here to read the article and others.

Can Flexible Working Really Work in a Barrister Environment

Five years ago, Claire Labio, Emma Wall and Helen Southworth worked in the same barristers chambers as they had done for many years. They each had specific roles and worked fixed long hours, predominantly at a desk.

Now they share the management of three businesses, Complete Counsel, Complete Mediation and Facilitate Expert Solutions, as well as supporting Pro-VIDE-Law, a pro bono training and education initiative. They each have a defined focus in the management of the businesses.

Click here to read the full article (page 38).

Charles Austin in Liverpool Law Magazine

Charles Austin appears in the September 2019 issue of the Liverpool Law Magazine:

The Court of Appeal decision in Goldscheider v Royal Opera House Covent Garden Foundation [2019] EWCA Civ 711 is important for employers. It raises the question whether Section 69 of the Enterprise and Regulatory Reform Act 2013 would have altered the decision.

Click here to read the issue. Charlie’s article can be found on page 32.

Who knows what the future holds? – Charles Austin in Liverpool Law Magazine

Charles Austin was featured in the latest issue of the Liverpool Law Magazine.

Having recently qualified I have to admit to being somewhat disconcerted about the sustained gloom that characterised the conversation of established practitioners. Clearly change is on the way. Older heads tell me that change and dire predictions about it are a constant at the Bar. Yet the Bar seems to survive and indeed prosper. However, there can be no doubt that the Civil Liabilities Act 2018 and its consequences will substantially reduce the work for junior civil barristers many of whom get by on a diet of whiplash based claims

View the full article on page 28 here.

Costs consequences of late acceptance of a Defendant’s downgraded offer

This article first appeared in the March 2019 edition of the Liverpool Law Society magazine

What are the costs consequences when a Defendant makes a Part 36 offer and then without withdrawing it simply reduces the value of that offer under CPR 36.9, thereby leaving the offer open for acceptance throughout – but in its downgraded state? Should the reduction be treated as a new offer, thereby entitling C to a new 21-day period for consideration? This issue was considered recently in a County Court case in which I acted for the Defendant.

The claim arose from an RTA which was uploaded to the portal. Proceedings were issued and shortly afterwards in October 17, the Defendant made a Part 36 Offer of £17,000. That offer expired in early December, following which the matter was allocated. In March 18 the Defendant notified the Claimant that the terms of the offer had been varied to offer £10,000, i.e. the offer had been downgraded. The matter was listed for trial but 11 days before the trial, the Claimant accepted the £10,000.

The parties agreed that, pursuant to CPR 36.20(4), as a result of accepting the offer out of time C was entitled to costs for the stage applicable at the date on which the ‘relevant period’ expired and that the claimant was liable for the defendant’s costs for the period from the date of expiry of the relevant period to the date of acceptance, but there was a dispute between the parties as to when the relevant period expired.

D contended that there was just one offer and therefore C was entitled to costs limited to the expiry of the initial Part 36 offer (post-issue/pre-allocation) and C had to pay D’s fixed costs calculated as the difference between the costs applicable at the time when the offer was accepted (post listing/pre-trial) and the costs to which C was entitled (post-issue/pre- allocation). By contrast, C contended that C was liable to pay only those costs arising after the expiry of 21 days following the revision of the offer and thus from 6th April 18 (post-listing /pre-trial).

The parties agreed that the question for the Court was when the ‘relevant period’ expired.

D argued that there had been only one offer and that the variation simply meant that the terms of that offer had been changed pursuant to CPR 36.9 which permits an offeror to change the terms of the offer without permission. CPR 36.9(5) expressly provides for an upgraded offer to create a new offer and a new period of 21 days in which to consider it. D argued that the Court could infer that if the draftsman had intended that a downgraded offer would amount to a new offer he would surely have drafted 35.9 to apply to any varied offer rather than only an improved offer.

D further argued that the Court need only step back and look at the justice of the situation; if an offeror decides that the existing offer is too low and that more should be offered, it is only right that C recover the costs for the period between expiry of the first offer and the expiry of the improved offer (which, pursuant to 36.9(5) is a new offer) since the improved offer shows that C was justified in not accepting the lower offer and entitles C to time to consider the improved offer. However, where an offer is revised downwards, C has in effect had the opportunity to accept a sum equal to or greater than the settlement sum since the offer was made (in this case since October 17). In these circumstances C was not justified in declining to accept the offer and causing D to incur continuing costs for 9 months after expiry of the higher offer. Moreover, justice demanded that C ought not to be compensated for recovering less than the sum that had initially been on offer.

The Claimant argued that the immediate impression given was of two offers, especially since the event which triggered the settlement of the case was the ‘second’ offer. C argued that the purpose of Part 36 was to encourage parties to settle and that an offer had to be taken in context. At the stage C accepted the offer a trial was looming and the perception of risk had changed. C argued that the earlier offer had impliedly been withdrawn and D ought not to have the costs benefits of that offer when it was no longer available for acceptance.

C argued that there was no express provision in the rules which set out the relevant period where an offer was downgraded and therefore it would be dangerous to draw any inference from the rule about upgraded offers attracting an extra 21 days. Had the rule drafters intended that downgraded offers would not attract an extra 21 days then given that they went to the trouble of making an express provision as to the existence of a second ‘relevant period’ when an offer was upgraded, the fact that nothing had been said about downgraded offers could not give rise to any inference at all.

Having heard the argument, the Deputy District Judge accepted D’s proposition because he found that it would be unjust to award costs to C for the extra period.

Although this was a fixed costs case there are parallels with the operation of 36.13(5) in standard costs cases which require the Court, unless it considers it unjust to do so, to order that C have costs up to the date on which the relevant period expired and that the offeree pay the offeror’s costs thereafter, until acceptance. In deciding if it is “unjust’ the Court must consider ‘all the circumstances’ including the list of factors in 36.17(5), hence there is potentially a higher hurdle to cross. However, in the writer’s view, the injustice of an offeree having costs for a period after expiry having declined to accept the earlier offer and later settled for less, will weigh heavily in the balance against the other factors.

Michelle Fanneran, Barrister Complete Counsel

Michael Sherry to speak at Private Client Conference in conjunction with STEP Liverpool

Complete Counsel barrister Michael Sherry will speak at the Private Client Conference in conjunction with STEP Liverpool – 14th May 2019.

Details of the event can be found at the Liverpool Law Society website where you can also book your seat at the event.

Lorraine Mensah in Liverpool Law Magazine

Complete Counsel barrister Lorraine Mensah was featured in the February 2019 issue of Liverpool Law with her article title ‘Britishness under the radar’.

The decision to Brexit saw our rights as British Citizens expounded as an intrinsic motive to leave. Whatever your views, it appears we all value our ‘Britishness’. In Claudia Font’s article in the December edition of The Liverpool Law, an option for continued smooth movement is to consider residence rights in another EU country.

Click here to read the full article (page 30) along with the rest of this month’s issue.

Recoverability of agent fees… the battle goes on by Andi Barnes

Article taken from the January 2019 issue of the Liverpool Law Magazine. View the complete magazine here.

Andi Barnes of Complete Counsel examines recent costs cases and the recoverability of agent fees

The costs world no doubt hoped, following the Supreme Court decision in Crane v Canons Leisure Centre Limited [2007] EWCA Civ 1352, for a definitive binding precedent on the issue of recoverability of external agents’ fees as a base cost whether with or without a pre-LASPO success fee. Indeed, a plethora of costs case law was cited and the matter carefully considered with May LJ proclaiming his distaste for the unsavoury flavour of “satellite costs of assessing those costs in the Part 8 proceedings begun for that purpose” and Hallett LJ carefully addressing any potential breach of the indemnity principle and finding none.

However, it appears that the battle goes on with paying parties continuing to dispute recoverability of external agents’ fees as a base cost and/or recoverability of a pre-LASPO success fee. The problem appears to have arisen having regard to the starting point cited by May LJ in Crane; the definition of base costs given in the Collective Conditional Fee Agreement (CCFA). The Supreme court held the external agents’ fees of Costings Limited was work that a solicitor would have been retained to undertake and amounted to base costs suitably incorporated within the CCFA as “charges for work done by or on behalf of the solicitor which would have been payable if this agreement did not provide for a success fee”. Furthermore, the Supreme Court allowed a pre-LASPO success fee on such costs.

In Guy v Morpeth Borough Council (2006) Case 4ML01218, 9 December 2006 (cited in Crane) HHJ Hewitt held the issue turned “on the terms of the CFA and its proper construction” and considered not only the wording of the CFA but also any other terms and conditions that were said to be to be incorporated into that agreement on the definition of basic charges. He held that costs draftsman’ work was not recoverable as a base cost as it did not fall within the definition of “solicitor agent” in the CFA and therefore a pre-LASPO success fee was disallowed.

In Ahmed v Aventis Pharma Limited [2009] EWHC 90152 (Costs), Master Gordon- Saker, in the detailed assessment of costs to be paid by the Legal Services Commission, considered whether work done by a medical records agency, Medical Clerical Bureau (MCB), could be recovered as a base cost or disbursement. He was satisfied that, work done by MCB sorting and summarising medical records was solicitor’s work and therefore recoverable at a higher rate than the sum charged to the solicitor on the basis that “the work done by MCB to sort and analyse the medical records was solicitors’ work”. In Ahmed it was accepted that pagination was not fee earner work and photocopying was a disbursement with charges for photocopying recoverable where they held to be exceptional. The issue of whether a success fee was recoverable did not arise.

The matter of recoverability of MCB’s fees was further explored in CM (as
Dependent and Administratrix of the Estate of JM, Deceased) v a NHS Trust (2018) Case SCCO Ref: BRO 1801402, 5 December 2018 where I appeared for the Defendant paying party; a detailed assessment of costs concerning recoverability of MCB’s work as a base cost together with a pre-LASPO success fee. The matter was initially listed for detailed assessment on 12 June 2018 with the success fee having been assessed at 60% but was adjourned, part-heard, by Order of Master Brown for further evidence and skeleton argument “as to recoverability of sums claimed in respect of the work undertaken in respect of medical records by ‘MCB’ as profit costs and in particular as to whether such work may be charged as if undertaken by a fee earner and, further, as to whether a success fee is recoverable in respect of the same work”.

The Defendant put the Claimant to strict proof that MCB’s work was a base cost properly recoverable under Shoosmiths solicitor’s CFA. The Master was asked to consider, in essence, three questions; 1) Was the work undertaken by MCB a base cost or disbursement? 2) If any of the work was held to be a base cost, could a success fee be recovered on such costs? and, in the event that the work was considered to be a base cost, 3) What hourly rate should such work be recoverable if incorporated into the CFA? Such questions were framed against the background of whether there was breach of the indemnity principle and having regard to the new test of proportionality; MCB having been instructed after the implementation of LASPO.

The Master considered the wording of the CFA; in particular the definition given under various sections of that CFA including ‘paying us’, ‘basic charges’, how charges are calculated in particular with the use of the words “and other staff ” and under charges for advocacy. The Master approached the issue effectively in two parts. First, whether the MCB work could be considered as a base cost recoverable within the terms of the CFA and second, whether there was breach of the indemnity principle. In giving an extempore judgment whilst he considered some of the work undertaken by MCB could be considered to be solicitor work that on consideration of the terms of the CFA and its proper construction, having regard to the indemnity principle, he could not be satisfied that the wording of the CFA incorporated MCB’s work as a base cost. He was not therefore satisfied that such work could be recovered as a base cost within the terms of the CFA and therefore a pre-LASPO success fee could not be recovered on such work. The Master did not find pagination and photocopying solicitor’s work but held that sorting and analysing records was solicitor’s work.

It appears therefore that the battle goes on, however, against the backdrop of the Supreme Court having already expressed a marked distaste for such satellite costs on costs.

View the full issue here