KERRY UNDERWOOD ON QOCS: A REVIEW
A review of QOCS, Section 57 and Set off. Kerry Underwood. £25.00. Available online here
Qualified one way costs shifting is here to stay. It may be extended to other areas. A detailed knowledge of the rules and regulations is now essential to most practitioners. So will you benefit from reading Kerry’s book?
THE PURPOSE OF A REVIEW
I have reviewed many books over the years. The main purpose of a review has to be to let the reader know whether it is worthwhile spending their hard-earned cash on the book in question.
£25 WELL SPENT?
There are many ways to waste £25. This is not one of them. This is material we all need to know. Set out in readable form. £25 well spent. That is, probably, all you need to know.
AND I COULD GO ON
I was tempted to stop the review there. However we all feel the need to “show our workings” or “give our reasons”.
THIS IS NOTHING NEW
Kerry points out that the Jackson Report merely follows a model of costs used in 1531. The 1531 legislation provided protection for “poor persons”. The Jackson Report recommended a similar model, but that it should be means tested. The means tested element was rejected by the Rules Committee.
A LOGICAL STRUCTURE
Kerry clearly wants you to read the book all the way through, like a Grisham novel, only, of course, much more gripping.
- Section 57 and the structure of costs.
- The exceptions to QOCS (which are going to be a fertile battle ground).
- The statutory material.
- The law of set off (of crucial importance in QOCS cases).
AND YOU HAVE TO DO EXERCISES
There are several exercises which, fortunately, have the answers immediately after with some clear, and often compelling commentary, for instance:
“One of the points being missed is the solicitor’s risk of being left with a liability for post-Part 36 disbursements that a client who has failed to beat a Part 36 offer cannot, or will not, pay. This is bound to influence solicitor behaviour. There is no point in a client spending a substantial sum on after the-event insurance to cover this Part 36 risk unless they are likely to recover a sum that exceeds the Part 36 offer by at least as much as the premium, in which case why take out the insurance at all?”
The role of witness evidence is going to be crucial in cases of fundamental dishonesty. This is a good example of the practical and hard headed guidance given is in this short section.
“The Judiciary Working Group Guide for Litigants in Person, prepared by six Circuit Judges, states:-
“Too often (indeed far too often) witnesses who have had statements prepared for them by solicitors tell the Judge that matters in the statement are not correct; they say (all too believably) that they simply signed what the solicitor had drafted for them without reading it through carefully and critically.”
It is of extreme importance that solicitors check with their clients that they have read and understood every word of their statement.
Careful attendance notes should be made. A separate statement should be signed by the client and kept on file and be along the lines of:-
“I have read and understood my Witness Statement and I have had any parts that I was unsure about explained to me and I confirm that the statement is 116 true and accurate in every regard. I understand that any inaccuracy in my statement may lead to my whole claim being thrown out and me being ordered to pay the other side’s costs as well as my own solicitor’s costs and disbursements.”
SO BUY IT, READ IT AND USE IT
With all the pressures on the modern lawyer it is often forgotten that we are in the knowledge business. Here we have knowledge aplenty. Knowledge that is combined with clear and pragmatic guidance. Buying this is not wasted money, reading it is not wasted time.
Many law books are over-priced. This is not. The only mystery is what, precisely, the white cliffs are supposed to represent…
An email from the author explaining the last point.
“Those are not white cliffs. It is an ice shelf off of Antarctica😄 Since I took the picture it has fallen in to the sea ( the ice shelf not the picture). So it could be that Jackson is the global warming of the law, or that, as with icebergs you 90% is below the surface, or the contrast between dark and light. I just like the picture! “