3+9=Costs (April 2024 Edition)

Costs Newsletter April 2024

Welcome to the 9th Edition of 3 + 9 = Costs.

The Costs and Litigation Funding sector remains as buoyant and busy as ever. Our team has been busy with editorial work for the Litigation Funding Supplement to the White Book (released April 2024), attending at the Brown Rudnick Litigation Funding Conference, speaking at the White Paper conference in London, attending at the Association of Costs Lawyers in Manchester, whilst maintaining busy practices, and we are only in April! More to come on the horizon and we look forward to seeing you very soon. Look out for our team at the Costs Law Reports Conference, London in September.

In the meantime, picking off our favourites of the last six months, there seems to be a theme of beneficiaries and litigation funding. Pivoting that seesaw, we bring you some practical guidance in a brain injury case.

First a visit to the Supreme Court, where judgment is awaited, in the case of Hirachand v Hirachand & Anr, in which case the Supreme Court is considering whether a success fee in a CFA is a ‘debt’ amounting to ‘financial need’ for the purposes of the Inheritance (Provision for Family Dependants) Act 1975, such that the Court can go on to consider whether to permit an award out of the deceased’s estate, upon an application by a dependant.

Second, we review a decision of the Court of Appeal in Kenig v Thomson Snell & Passmore. Here, the Court of Appeal reviewed the operation of s.71(3) of the Solicitors Act 1974 as it applies to beneficiaries under a will who seek assessment of solicitors’ costs even where those costs have been approved by the executor and paid by the estate. Section 71(3) operates differently from section 71(1), and so we are likely to see more challenges in this context.

Third, the pivot, we turn to Hadley v Przybylo, in which the Court of Appeal grappled with its expectations pertaining to costs budgets which claimed for fee earner time to attend rehabilitation case management meetings in a serious brain injury case involving a protected party.

On the other side of the seesaw, we focus on the theme of litigation funding and review a decision of the High Court in Jalla v Shell International. In this case, a law firm found itself the subject of non-party costs order application brought on the grounds that it had in fact become the real party to the litigation when it was, at the first stage, unable to demonstrate evidence of funding arrangements and authority to act on behalf of more than 27,000 claimants.

Sticking with the theme, we next turn to provide an update on the latest news regarding draft legislation to tidy up the PACCAR problem. Retrospective effect is anticipated, and hopes are that the Bill will get approval before Parliament’s summer recess. The litigation funding industry will be reassured by the fast progress as will we all in relation to protecting access to justice.

Finally, to round up this newsletter, we review the High Court judgment in Therium Litigation Funding AIC v Bugsby Property LLC. The case explores the current position post-PACCAR in the context of an application for injunctive relief for preservation of assets (settlement sum) brought by a funder and others against the claimants and its new solicitors. It shines a light on the possible mechanisms at play that might get around PACCAR and the way in which legal argument may be deployed to avoid those consequences.

Interesting stuff, I’m sure you’ll agree!

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