26 Responses
Comments are closed.
Subscribe to Blog via Email
Join 16.8K other subscribers
Recent Posts
- AVOIDING THE PITFALLS: DRAFTING SCHEDULES OF DAMAGES: WEBINAR 16th APRIL 2026: WITH SOME INTERESTING QUOTES TO WHET YOUR APPETITE..
- WASTED COSTS ORDER MADE AGAINST SOLICITORS WHEN THEY WERE MISTAKEN AS TO WHO THEY WERE INSTRUCTED BY: THE DEFENDANT ESTABLISHES CAUSATION
- COST BITES 375 : WHY THESE INTERIM BILLS WERE NOT STATUTORY BILLS: “VERY CLEAR EVIDENCE WOULD BE NEEDED TO ESTABLISH THAT AN INVOICE WHICH, ON ITS FACE, IS EXPRESSLY NOT FINAL HAS NONETHELESS BEEN AGREED TO BE FINAL”
- MAZUR IN THE COURT OF APPEAL: WEBINAR WITH CHECKLISTS: NOW AVAILABLE “ON DEMAND”
- THROWBACK FRIDAY (1): ADJOURNMENTS ON THE GROUNDS OF ILL HEALTH: A DETAILED CONSIDERATION (APRIL 2015)
Top Posts
- WASTED COSTS ORDER MADE AGAINST SOLICITORS WHEN THEY WERE MISTAKEN AS TO WHO THEY WERE INSTRUCTED BY: THE DEFENDANT ESTABLISHES CAUSATION
- THE JUDGE FOUND AGAINST ME BECAUSE THEY GAVE TOO MUCH LEEWAY TO A LITIGANT IN PERSON : ALLEGATIONS OF THIS KIND SHOULD BE PARTICULARISED (AND CAREFULLY THOUGHT OUT)
- SETTING ASIDE DEFAULT JUDGMENT: THE RELEVANCE OF DELAY AND THE DENTON PRINCIPLES CONSIDERED IN THE HIGH COURT
- JOINDER OF NEW PARTIES IN EXISTING PROCEEDINGS 2: THE PRINCIPLES (AND THE COSTS!)
- AVOIDING THE PITFALLS: DRAFTING SCHEDULES OF DAMAGES: WEBINAR 16th APRIL 2026: WITH SOME INTERESTING QUOTES TO WHET YOUR APPETITE..
Archives
Blogroll
Books
Useful Links
Copyright
© Gordon Exall, Exall Legal Training, Civil Litigation Brief, 2013-2026.
Unauthorised use and or duplication of the material contained on this blog without permission is strictly prohibited.
Privacy & Cookies: This site uses cookies. By continuing to use this website, you agree to their use.
To find out more, including how to control cookies, see here: Cookie Policy
To find out more, including how to control cookies, see here: Cookie Policy
Points for brevity?:
‘Record everything’
Which heart does not sink at the phrase “Qualified One-Way Costs Shifting?”
Costs are the Great Shame of English law. The law on costs is so complex that it has specialist lawyers, judges, textbooks and even law reports devoted to it. Understand its workings well enough to avoid its torture chambers, and to that end keep a careful note of what you have spent your time on, because one day someone will ask you to explain.
Make sure your budget is correct and accurate throughout the life of a claim. Monitor and review it regularly it and stay within it – if you need to vary due to a development, do it asap. Cost recovery is much higher and easier if you are within an agreed budget!
Is your retainer in place? Do you know what you can charge at? Good let’s go….Did you pick up that file…..yes…..why? Brilliant now write that down in some detail before you forget and make sure you put the time taken next to it.
Remember this my son! The client will always be out of pocket. If they win (a) they may be unable to enforce the order for costs (do not litigate if there is any doubt about enforcement), (b) even on an indemnity costs order they will receive something like 80% of their costs, (c) on a standard basis it is more like 66%. On the other hand they might lose and pay the other sides costs. Even if they win they may get a % order for costs. So remember this my son, the client will always be out of pocket …………and tell them this before you do any work.
Don’t think that because either:
A) costs isn’t your chosen area of practice
B) you have an internal costs team or
C) you instruct external costs lawyers
That you do not need to have any real knowledge of costs or the costs process generally. Its helpful/ essential from multiple perspectives -for best practice, good client care, commercial awareness, profitability for the firm, your own personal/ future development… and if nothing else it’ll help save your own sanity/ embarrassment during CCMCs!
When you’re given a draft letter and you need to make it better, think costs.
When your client is in a hurry and asks for a meeting, don’t worry. Think costs.
Have you spent an hour doing something boring? Don’t forget your time recording. It’s all costs.
If you have a budget, don’t lose your composure if you need to go over. Provide an update on costs.
If the other side doesn’t know what they’re doing it’s best to tell them trouble’s brewing. On costs.
If your application hearing is for less than a day, can you guess what I’m about to say? Serve details of costs.
If clients need the best information, don’t forget proper communication. On costs.
And when you act no win no fee, and it’s a total catastrophe, try not to think about costs too much. There’s more to the job.
In this green and pleasant land, litigation is inherently expensive and time consuming. The costs of the litigation are generally awarded by the Court to the successful party, unless the Rules or the Court orders otherwise. Those costs can very quickly outweigh the judgment sought and so it is prudent, if at all possible, to avoid incurring them by way of early negotiation, which even if unsuccessful will provide some protection from an adverse award. You may not recover all of those costs from the losing party and so it is crucial that the retainer between the solicitor and the client, and subsequent billing, follows the correct – but archaic – Solicitors Act rules. In the end, contemporaneous time recording and a good retainer reign supreme!
Don’t turn over every pebble on the beach. You won’t get paid to do so. Decide which ones are likely to be worthwhile. That decision is part of your job.
Be tough but pragmatic.
Record your time religiously and separately for each piece of work (and for attendances/conferences record, where applicable, a breakdown of the total time spent by reference to the phases of a budget) so as to avoid potentially arbitrary and unfavourable ex post facto apportionments. Other than that, just do what you are good at and befriend a reputable and experienced Costs Lawyer to do what they are good at: they will (should!) be better, quicker and cheaper at all matters costs than you and, at the very least, you would, in most cases, be most unlikely to recover your charging rate for doing ‘costs work’. There’s a good reason why we costs folk have occasionally been referred to (albeit rather unfairly I suggest) as “the necessary evil” (emphasis on the ‘necessary’ bit…).
To succeed follow rules one to four, but rule one in particular.
1) Have clear and open communication with clients about costs from the start
a) establish clear expectations & avoid any misunderstandings.
2) Be efficient with time.
a) use legal technology e.g. document management systems, schedulers etc.
3) Streamline your workflow
a) prioritize and focus on the most important tasks,
b) avoid procrastination.
4) Keep track of all expenses – use cloud storage and upload as receipts are presented.
a) be mindful of the costs associated with your work
i) e.g. court filing fees, expert witness fees,
ii) other expenses.
To quote Judge Cook:
“Most costs hearings are two people who nothing about costs arguing in front of someone who knows even less”.
So best advice is to get a copy of Cook on Costs; and take it with you!
But to maximise your chance of recovery, make sure you tick all the preliminary boxes. It’s missing the simple stuff that can really ruin your day.
Client care letter. Make sure it fully complies and covers the work you are claiming for and that at the rates you seek to justify. Also have on hand the relevant guidance that says they don’t have to be signed; just on case (but do get them signed!)
And get your schedule in at least the 24 hours before. That’s a really annoying technicality. to lose all your costs on
Develop many specialisms…other than costs!
Please sir, can I gave some more? Better to have too much time and not need it, than have to approach the bench, cap in hand, and ask for more. Be realistic with time needed and jobs required. Record vehemently, phase appropriately and for goodness sake, take proper notes!
Always make sure that there is a costs schedule whatever the nature of the hearing. If you are the advocate about to seek the costs set out in the schedule – make sure you yourself understand the schedule and how it is constructed. Importantly if all the work has been done by a Grade A fee earner understand the complexities of the matter and why such a grade was required. .
Check if the Guideline Hourly Rate for the area in which the court is located has been claimed. If not – why not ?
There are three categories of lawyer: those who know about costs, those who think they know about costs but don’t and those who know they don’t know anything about costs. Even if you think you are in the first category, you are almost certainly in the second. When it comes to costs, do what any sensible person would do when confronted by a specialism in which they do not practice: seek expert advice. No good ever came of a lawyer attempting to wing it on costs. You are not the exception to that rule.
1) Compose every communication to anyone in anticipation of its being read by a judge and/or published in the Daily Mail.
2) Compose every communication of advice to your client in anticipation of its being read and acted on (in unrelated circumstances) by a non-client, so (A) even if using defined terms for parties, try to use your client’s and antagonists’ names as much as possible (B) do not state any generalisations without applying them to the facts in question.
3) Compose every communication to colleagues as you would to a good friend, even if their conduct is provoking you to articulate a momentarily gratifying but ultimately damaging remark. You’ll be glad when the judge reads it and it’s published in the Daily Mail.
Don’t forget to do a file note recording the time for lengthy letters; telephone calls and preparing documents. They may be on your WIP ledger but the Judge at DA likes to see a document on file.
Don’t forget if you travel anywhere to record and evidence your expenses. They may not always be recoverable (local journey) but when attending a JSM, Conference with Counsel, etc, out of town, produce the evidence.
Prepare a file note for thinking time in the shower, or driving home from work, etc. If you are thinking of what you need to do the following day, you are still working.
You start your career with a reputation as honest. You can only lose it once. Be a principled negotiater and keep the best records of everything you do. Balance risk against reward.Be helpful to opponents, provided it doesn’t prejudice your client. never forget your duty to the court and to the administration of justice. This advice applies to costs as to all areas of practice…
Not everything is black and white – the law is open to interpretation. Keep learning and be adaptable – Costs is an ever changing landscape. Remain honest and amicable – integrity & compromise is better than losing.
Be passionate in your chosen career – if you do a job you love, you never work a day in your life!
Young man/woman/person… you might think no one enters the legal profession to specialise in costs; they are the accountants of the legal profession I suppose!
The lawyers aside, no party tends to enjoy litigation because, amongst other stresses, it is costly to them. Given we are starting from this negative stand point, you must practice protecting yourself from reprisal by recording everything you do, with a detailed narrative. Do keep an eye on budgeting and reserves throughout your case so there are no unwelcome surprises!
Costs teams (if you’re lucky enough to have one) will appreciate you clearly allocating your recorded time to the relevant phase of the case, for when they are drafting budgets and drawing up bills etc.
All work may not be recoverable but it is all recordable. Record the when, what and why. When did you do it? What did you do? But most importantly WHY did you do it?
The first think to know about costs
Is whether you won or you lost
If you won you insist
That just one minute missed
Would have rendered the whole case a frost.
If you lost it’s a touch more complex
And requires intellectual flex
The judge bought a pup
The storm’s in a teacup
And de minimis non curat lex
Never surprise your client with an invoice
For all those who hated maths at school,
And went into law as it would never be a vital tool.
A lesson above all that must be learned,
To avoid your fingers, fees and finances bring burned
To do multiples of 2.5 in your head, a challenge indeed
But to judges bored of costs, a genius you will be
Never ever EVER forget the VAT.