This was a headline from the Law Society Gazette from 23 July 2019. In a case called Timokhina v Timokhin, The Court of Appeal reduced counsel’s fees for a hearing about who should pay the costs of the substantive hearing. The Respondent husband, represented by Withers, turned up to the hearing mob handed with leading and junior counsel, charging £25k and £12.5k respectively whilst the appellant had junior counsel at a modest £1.5k. The Court of Appeal rightly disallowed leading counsel’s fees entirely and slashed the junior’s fees in half.
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Such behaviour gives lawyers a bad name. What were Withers doing turning up with leading and junior counsel for a costs hearing and why didn’t they negotiate a reasonable fee with the clerks. I have no doubt that Withers turned up with their own team, all busy scribbling superfluous notes! This is a particularly bad example but the number of times in my career, I have been confronted in court by leading and junior counsel, a partner, associate and trainee with somebody expected to pay for the charade!

It is very common for non-lawyers to use the term "without prejudice" on legal letters for no other reason than they feel they should. This is not surprising given the mystique that has surrounded the law for so long but it is often used wrongly by lay people and sometimes even by lawyers who should know better!

Without Prejudice is properly used in the course of negotiations between parties who are trying to settle a dispute, often in the course of litigation but not necessarily. It means that neither party to the without prejudice correspondence can refer it to the court at a hearing or use it for any other purposes. It is therefore useful because the parties to a dispute are free to make offers which they wouldn't want a judge to know about.

Just because something is marked "without prejudice" doesn't mean anything. The party writing a without prejudice letter or email has to justify why it is properly marked with those words. Please also note that there are occasions where someone makes an admission of wrongdoing in a letter when "without prejudice" will not prevent the other party relying on that admission.

Then there's "without prejudice save as to costs" which we will save for another day.

Bad Brexit news....the Paris Commercial Court is to recognise common law decisions and to publish its decisions in English and French. This will be a big challenge to London's dominance.

There is no doubt that litigation funding is beginning to revolutionise the litigation market but has still a long journey to make before there is anything like equality of arms between a wealthy litigant and a party with more limited means. There are obvious problems which may be difficult to overcome such as funding a defence or where the remedy is not primarily monetary. The other issue is the take by funders from the potential damages. Funders are right to point out that 50% of something is better than 100% of nothing but that argument should not be an excuse for greed or uncompetitive behaviour. It will be the case that the more competition there is in the market the more prices will come down but funders must be more prepared to think laterally, such as mixing no recourse funding with straight lending and taking equity.

It is such a shame that successive governments decimated civil legal aid. My company, Unity Legal Solutions is working on a report which will show how cost effective civil legal aid was in giving access to justice. However, it became an easy target at a time when there was public disquiet not about civil legal aid but the perception of criminal law silks getting rich on the back of legal aid given to apparently undeserving criminals. It may be some time before there is any return to state aid to litigants but the private sector must find ways of filling in the gap.

​I note the initiative taken by Debenhams Ottaway to create of panel of funders in an attempt to reduce commission paid to brokers. This ignores the fact that such commission is a small part of the overall cost including mark up on solicitors fees when fees are deferred, the take of the funders and ATE premiums. It also does not take into account the non chargeable work that solicitors adopting this model will have to undertake in getting a case across the funding line. Unity overcomes this problem by procuring initial advice as to the merits of a case, putting together the right legal team for the case, negotiating the fees and the funding in return for remuneration which is payable directly by the client and consisting partly of upfront fees and commission on success.

One of my resolutions for 2018 is not to get so annoyed at bureaucracy or the behaviour of fellow professionals. It achieves nothing other than to increase my blood pressure. The worst blood pressure raisers for 2017 were:
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1. The High court Master who transferred my client's claim valued in excess of £700k to the Central London County Court.
2. The Central London County Court who then sat on the fie for 2 months and then gave me a date for a case management conference 6 months off.
3. The firm of solicitors who conveniently forgot to pay the court trial fee leading to their client's case being struck off. The trial date was lost and they have now applied for relief against sanctions. If they get it, my client will have lost at least 4 months. If they don't get relief, the solicitors have threatened to issue new proceedings for the same thing. Have they not heard of abuse of court and res judicata. Probably not ! Happy New Year!