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Report of theLegal Costs Implementation Advisory Group
30-01 02/07 (500) Brunswick Press Ltd. (18128)
Report of the
Legal Costs Implementation Advisory Group
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Contents
Foreword 5
Executive Summary 7
1 Introduction 10
2 Assessing legal costs 12
3 Recoverable Costs Guidelines 19
4 Client information 21
5 Legislative and procedural changes 23
6 Miscellaneous 25
Appendices
1 Executive Summary of the Report of the Legal Costs Working Group 27
2 Illustrative model Bill of Costs 31
3 Costs annex of client engagement letter 44
4 Disclosure of Legal Costs and Costs Agreement between a Barrister and a Solicitor 45
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Foreword
Earlier this year, the Tánaiste and Minister for Justice, Equality and Law Reform, Michael McDowell, TD, established the Legal Costs Implementation Advisory Group to progress the recommendations of the Report of the Legal Costs Working Group chaired by Paul Haran.
Issues of cost and efficiency of the litigation process have, quite legitimately, become a focus of public interest and concern in recent years. Implementing change in the Irish legal system is both complex and contentious. Our task has been to elaborate on the general recommendations of the Legal Costs Working Group and to identify suitable structures and processes to implement those recommendations. The task has been time consuming and difficult. The recommendations we have produced may not satisfy all concerned.
We recommend that
• the legal costs regulatory body be established, that it should consist of three part-time commissioners and appropriate staff and that it be established on an interim or designate basis as soon as possible
• the legal costs regulatory body be tasked, inter alia, with the drawing up of appropriate guidelines governing the items of legal costs recoverable on a party and party basis
• in tandem with the setting of guidelines, the practice by solicitors and barristers of charging global fees such as brief fees and instructions fees be abolished and that, in their place, there be substituted fees and charges set out on an hourly rate or daily rate as appropriate
• that solicitors and barristers be obliged to use time recording in the preparation and compilation of their charges and that the bills containing such charges be supported by these records
• in all civil litigation and immediately subsequent to the taking of initial instructions, solicitors should issue a client engagement letter in accordance with the terms of section 68 of the Solicitors (Amendment) Act 1994 as further enhanced by the recommendations contained in the Report of the Legal Costs Working Group
• upon instructions being received and/or a retainer being accepted, both solicitors and barristers be required to enter into a legal costs agreement with the client
• a legal costs assessment office be established to take over the functions of the existing taxation of costs system and that this body should be separate from and independent of the legal costs regulatory body
• the changes in legislation and Rules of Court governing procedures in court recommended in the Report of the Legal Costs Working Group be implemented as soon as possible
• rules of court should require the court to exercise greater discrimination when awarding liability for costs as between the parties
• the monetary jurisdictions of the District and Circuit Court provided for in the Courts and Court Officers Act 2002 should be implemented (except for personal injury cases)
• the jurisdiction of the Small Claims Court should be increased
• action should be taken to deal with delays in the courts process, and
• the current Appendix W of Order 99 of the Rules of the Superior Courts be abolished.
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Time recording may be challenging but we are satisfied that it will lead to greater efficiency and transparency. We hope that the recommendations will lead to greater competition and predictability of legal costs and discourage the incurring of unnecessary costs and recourse to wasteful practices in the conduct of litigation.
If our legal system is to work efficiently, economically and fairly for all concerned, the litigation process, methods of caseload disposal and working practices within the legal profession must – quite aside from the issue of assessment of costs – be subject to closer examination with a view to further modernisation and improvement.
I should like to express my sincere thanks and appreciation to the many persons and professional bodies who made submissions and met with us. I must also thank most sincerely the members of the Legal Costs Implementation Advisory Group who gave so freely and generously of their time and commitment.
Finally, I should like to thank Dave Fennell who has been an excellent secretary to the Group.
Desmond Miller
Chairman
November 2006
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Executive Summary
The Legal Costs Implementation Advisory Group has made the following recommendations.
1 The assessment of costs in a particular case must involve an examination of the work actually
done in the case concerned (2.27 – 2.42).
2 Solicitors and barristers should be obliged to have in place a proper system of time-
recording. Bills should be supported by time records (2.1).
3 The requirement as to time-recording should also be accompanied by solicitors and barristers
setting out their hourly/daily charge-out rates (2.2).
4 Solicitors should be required to issue a client engagement letter with detailed costs
information (4.2 – 4.10). Barristers and solicitors should also be required to make a legal
costs agreement (4.11 – 4.13).
5 An appropriate penalty, ranging from censure to non-recoverability of costs (or part thereof)
should be applied in the case of a solicitor who fails to adhere to the legislative requirements
in relation to costs information (4.7).
6 There should be a simplified, written assessment process (with recourse to oral assessment
in certain circumstances) conducted by a legal costs assessment office (2.12 – 2.13). The
assessment should be conducted by reference to guidelines set by a new legal costs
regulatory body statutorily empowered for the purpose (2.6 – 2.11).
7 The new assessment procedure should incorporate the following features:
• A requirement that a bill of costs be produced within a twelve week period,
extendable by the court under conditions
• The party liable for the costs would have an opportunity to request assessment of
any part of the costs they dispute
• A facility for the making of a lodgement or tender to satisfy disputed costs by the
party liable for the costs
• The issuing of a default costs assessment certificate for costs not disputed within the
time allowed
• A written procedure, with provision for an oral procedure (a) at the option of either
party, where the bill exceeds €100,000 exclusive of V.A.T. or (b) where the costs
assessor considers it necessary in order to clarify or resolve an issue concerning the
costs
• An appeal to an Appeals Adjudicator (or in the case of Circuit Court costs to the
County Registrar) by way of oral hearing
• A further appeal to the Court from the decision of an Appeals Adjudicator on a point
of law only (2.27 – 2.42) .
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8 The guidelines – which will inform assessment - should, in addition to taking into account
time expended, have regard to criteria such as the value of the claim, complexity, novelty
of the issues, and urgency of the relief being sought or opposed. The guidelines should be
realistic, workable and kept up-to-date (3.2).
9 “Global’ fees” (whether in the form of the solicitors’ instructions fee or the barristers’ brief
fee) should be abolished and replaced by a set of charges based on the component steps
making up the work done (3.3).
10 The current Appendix W should be abolished (3.12).
11 The format of the bill of costs should be revised so as to give effect to the above
recommendations, and the IAG has proposed an illustrative model bill format for the purpose
(2.29 and Appendix 2).
12 The legal costs regulatory body should comprise three part-time commissioners appointed
by the Government, supported by a Chief Executive Officer and appropriate staff. The body
will be responsible for formulating and updating recoverable costs guidelines, regulating the
procedure for the assessment of costs, and providing information to the public on legal costs
(2.6 – 2.7).
13 The legal costs regulatory body should be established on an interim or designate basis as
soon as possible (2.8).
14 Legislative provision should be made to ensure that the legal costs regulatory body has
access to taxed bills of costs and can obtain information as it requires (2.10).
15 The courts, when determining liability for costs in respect of an action, should be required
by rule of court to take into account a range of factors such as the extent to which the
party seeking costs has been successful, whether a party has caused costs to be incurred
unnecessarily or otherwise unreasonably and whether a party has made reasonable efforts to
settle the claim (5.6 – 5.7).
16 The legislative and procedural recommendations contained in the Report of the Legal Costs
Working Group should be acted on - by way of primary legislation or rules of court, as
appropriate. These recommendations deal with
• sanctions for delay,
• the fixing of liability for costs at the pre-trial stage,
• post-proceedings letters of offer,
• costs penalties for delay and
• provision for estimates of costs (5.1).
17 Consideration should be given to the suggestion that the parties entitled to make a tender in
respect of costs should not be confined to the insured sector and the State (5.3).
18 The increases in the monetary jurisdictions in the District and Circuit Courts provided for in
Sections 13 and 14 of the Courts and Court Officers Act 2002 (bringing the jurisdictions up to
€20,000 and €100,000 respectively) should be implemented (except for personal injury cases)
(6.1 – 6.4).
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19 The jurisdictional limit of the Small Claims Procedure should be increased from the existing
limit of €2,000 to €3,000 and revised every two years thereafter. The IAG further recommends
that the Minister give consideration to expanding the range of cases dealt with by means of
the procedure (6.5 – 6.6).
20 The factors causing delay in the allocation of hearings and in disposal of litigation should
be the subject of examination and remedial action. The IAG recognises the primary role of
the judiciary in this regard and recommends that the resources of the Department of Justice,
Equality and Law Reform should be made available to the judiciary in relation to any such
examination (6.8).
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1.1 In September 2004, Mr Michael McDowell TD, Tánaiste and Minister for Justice, Equality and
Law Reform, announced the establishment of a Working Group to look at ways of reducing legal
costs. The Working Group finalised their report in November 2005 and the Tánaiste subsequently
brought the report to Government to secure its endorsement of the Report’s recommendations.
1.2 There are three main strands to the Report of the Working Group. Firstly, the Report
recommends the replacement of the existing taxation of costs system with a regime which would
comprise the establishment of:
• a legal costs regulatory body to formulate recoverable cost guidelines based on an
assessment of the amount of work reasonably required to be done in typical cases
• a written assessment process, based on the recoverable cost guidelines, to be carried out
by a legal costs assessment office where legal bills are disputed; and
• where assessments are appealed, an oral appeals process conducted by an Appeals
Adjudicator.
Secondly, the report calls for significant improvements to be made in the quality and quantity of
the information that a solicitor is required to provide to clients and the manner in which it is to
be supplied. Finally, the report recommends a number of legislative and procedural changes to
reduce delays in court hearings and generally designed to expedite the legal process. The executive
summary of the Working Group’s Report is at Appendix 1.
1.3 From the outset, the Tánaiste attached a very high priority to the implementation of the
Report’s recommendations. He was aware, however, that the recommendations span the operational,
policy and legislative areas and, as such, it was clear that a great deal of preliminary work would
be required before the recommendations could be implemented. To this end, in January 2006, the
Tánaiste established an Implementation Advisory Group drawn from the legal, business, academic
and public sectors.
Implementation Advisory Group (IAG)
1.4 Mr Desmond Miller, Chartered Accountant, was appointed as the Chairman of the IAG. The
other members appointed are:
Mr Garrett Cooney, Senior Counsel (retired)
Mr Maurice Curran, solicitor
Mr John Cronin, Department of Justice, Equality and Law Reform
Mr Bryan Evans, Chartered Accountant
Prof. Mary Lambkin, School of Business, UCD
Mr Noel Rubotham, Director of Reform and Development, Courts Service
Introduction1
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1.5 The IAG had the following terms of reference:
to advise on the timely implementation of the recommendations of the Legal Costs
Working Group, with particular reference to the establishment on an interim basis of
the proposed legal costs regulatory and assessment structure,
to consult with interested bodies in relation to the recommendations contained in the
Report and,
to report to the Tánaiste and Minister for Justice, Equality and Law Reform not later
than 30 November 2006.
1.6 Administrative support to the IAG was provided by the Department of Justice, Equality and
Law Reform.
1.7 In March 2006, the IAG invited a number of interested parties to comment on the Report’s
recommendations in writing. The IAG subsequently decided to ask certain of those parties to meet
with them to elaborate on their submissions. In this regard, the Group met with Mr Charles Moran,
Taxing Master of the High Court, the Personal Injuries Assessment Board, the Institute of Legal Costs
Accountants, the Bar Council, the Law Society, the Irish Insurance Federation, the Self-Insured Task
Force, the Family Lawyers Association and the Competition Authority.
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Assessing legal costs2Time recording
2.1 The IAG is of the view that solicitors and barristers should be obliged to have in place a
proper system of time-recording and that bills in relation to legal costs should, as appropriate, be
supported by time records.
2.2 The introduction of time-recording should also be accompanied by solicitors and barristers
setting out, as the basis of their charging generally for legal services, their hourly or daily rates, as
appropriate.
2.3 The IAG is mindful of the dangers posed by an over-reliance on a time-based legal costs
charging system. The point about any such system being a ‘plodder’s charter’ has been made
repeatedly. However, where a paying party is of the view that there has been an unacceptable level
of ‘plodding’ in a case, they will be free to refer the matter to assessment.
2.4 The point has also been made that time-recording may give rise generally to an escalation in
legal costs as lawyers charge for work which heretofore has not been specifically charged for. It is
not possible, however, to determine the extent to which this may occur and the costs implications.
It must also be borne in mind that time-recording represents one part of a series of wide-ranging
changes and reforms in relation to the charging of legal services and the assessment of costs where
they are in dispute. As such, it is difficult to assess the effects of one measure in isolation from all of
the other measures to be adopted.
The regulatory structure
2.5 The IAG recommends the establishment of the legal costs assessment office and the legal
costs regulatory body as two statutory bodies, separate from each other. The legal costs assessment
office will replace the Office of the Taxing Master.
The legal costs regulatory body
2.6 The IAG recommends that the legal costs regulatory body should comprise three part-time
members appointed by Government, with the necessary support staff. The three members of the
body will be responsible for setting guidelines (see chapter 3 for a detailed consideration of the
issues involved in setting recoverable costs guidelines).
2.7 The legal costs regulatory body would be required to maintain an up to date data-base
of legal costs trends as well as costs trends in the business and other sectors of the economy, to
inform the formulation of guidelines and any scales employed. Resources required for the regulatory
body would be primarily in the area of research, statistical analysis and reporting, and data-base
management, apart from administrative support.
2.8 Given the task involved in devising guidelines – which will be both complex and time
consuming, the IAG recommends the establishment of an interim regulatory body. The interim body
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would be responsible for formulating the recoverable costs guidelines, mindful of the practical points
raised by the professional legal bodies, collecting, analysing and publishing data in relation to legal
costs, availing where necessary of statutory powers for that purpose, and advising the Department of
Justice, Equality and Law Reform of how best the assessment procedure might be structured.
2.9 The IAG is of the view that the interim regulatory costs body should be put in place and
commence work as soon as possible. While it is not possible to estimate how long it might take to
devise recoverable costs guidelines, the IAG thinks it unlikely that the initial guidelines could be
devised in less than one year. It should also be borne in mind that the existing system will have to
operate in parallel with the new arrangements for some time (i.e., cases before the Taxing Master will
have to run their course. Legislative provision will have to be made accordingly).
2.10 It will be essential for the interim regulatory body to have access to taxed bills of costs
as part of its work in formulating recoverable costs guidelines. Insofar as the law as it stands
may preclude third party scrutiny of such bills, the IAG advises that it may be necessary to make
legislative provision – possibly along the lines of section 54A of the Personal Injuries Assessment
Board Act 2003 (as inserted by section 31 of the Civil Liability and Courts Act 2004) - to ensure that
the interim regulatory body will be able to have access to such bills and obtain information as it
requires.
2.11 Consideration should be given to the legal costs regulatory body assuming the powers
and functions - relating to the assessment of costs - of bodies such as the Rules Committees, the
Registration of Title Rules Committee, and the body authorised under the Solicitors’ Remuneration
Act 1881 (as adapted) to regulate solicitors’ remuneration for non-contentious business.
The legal costs assessment office
2.12 The legal costs assessment office – with a chief executive officer responsible for the running
of the office - will be responsible for the assessment process and will replace the Office of the Taxing
Master. It is difficult, at this stage, to estimate the staffing needs of the proposed regulatory and
assessment structure. At present, the Office of the Taxing Master comprises of the two Taxing Masters
and four support staff. This staffing complement deals with a case range of 400-500 cases per year.
All of these cases require an oral hearing. There is no provision for a written taxation procedure.
2.13 A key challenge in resourcing the legal costs assessment office will be to attract assessors
having sufficient expertise and experience to undertake assessments. This will depend on the
agency’s ability to offer competitive salaries to attract suitable candidates, and to offer a career
structure which will persuade competent personnel to remain in the agency. The variety and
complexity of assessments as well as career progression considerations justify a grading structure
comprising an assessor grade at entry level and a senior assessor grade.
2.14 The position of Appeals Adjudicator will be critical to the new regime in providing guidance,
through the precedents generated on appeal, for assessors to ensure conformity with the guidelines
fixed by the regulatory body. The Appeals Adjudicator would be the ultimate recourse - points of
law aside – on appeals of assessments of High Court costs on the merits. In addition, the Appeals
Adjudicator would perform other adjudicative functions, such as deciding whether a default
assessment certificate should be set aside (see 2.32). In view of the level of responsibility involved, it
is suggested that the position be remunerated somewhere between the salary levels of Circuit Court
and High Court judge.
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2.15 The IAG concurs with the recommendation of the Legal Costs Working Group that the
position should be filled by way of open competition, be open to suitably qualified persons and not
be confined to members of the legal profession. In view of the need for the Appeals Adjudicator to
be seen to be independent in the exercise of his/her functions, an argument exists that the position
should be permanent.
2.16 It can be safely said that, whatever structure is ultimately put in place, the number of staff
required to work the system will be greater than the number currently deployed. The total number
of bills taxed and certified in the High Court in 2005 amounted to 525. It is conceivable that, at least
in the initial phase of a new assessment regime, the caseload will increase substantially over that
currently disposed of on taxation, as litigants test the new assessment process. Once the professions
and the litigating public become familiar with the trends in assessment outcomes, caseload is likely
to stabilise, as bills of costs are settled by agreement in light of allowances made on assessment.
While it is difficult to estimate with any certainty the staffing levels required for the assessment
function, the IAG considers that a complement of one Appeals Adjudicator, two senior assessors and
six junior assessors, together with four clerical administrative staff, would be a realistic estimate.
2.17 Before dealing with the assessment process in detail, the IAG wishes to address a number of
general issues, i.e., the need for oral assessment, delays in billing and the costs of assessment.
Oral assessment
2.18 Concern was expressed about the feasibility of a mandatory requirement that all disputed
bills, even those of great complexity, should be first subjected to written assessment.
2.19 The IAG shares this concern and it is of the view that it should be possible for parties to
submit the more complex cases directly for oral assessment. The IAG recommends that, in cases
where the amount in dispute exceeds €100,000 (this could be subject to adjustment by the regulatory
body in consultation with relevant interests), parties should have the option of requesting an oral
assessment.
2.20 The IAG also believes that, while it is hoped that most cases will be amenable to written
assessment, it may well be necessary, on occasion, for the officer conducting an assessment to invite
parties to an oral hearing as to the items in dispute. In this context, it is not suggested that oral
hearings will replace written assessments, merely that the officer conducting an assessment will have
the option of using oral hearings to clarify issues in dispute.
Billing time-limits
2.21 In one submission to the IAG, concern was expressed that, where an award had been made
or settlement agreed in a personal injuries action, considerable delay often arises in quantifying the
legal costs, which can represent a significant element of the overall cost of the award, presenting
difficulties in closing the claim. The IAG takes the view that a paying party – whether an insurer
or other litigant - should be entitled to receive the bill of costs within a reasonable timeframe after
liability for the costs has been determined.
2.22 In England and Wales, the period for commencing detailed assessment proceedings is
set at three months after the date (a) of the judgment concerned, (b) of service of a notice of
discontinuance or the dismissal of an application to set aside such notice, or (c) on which the right
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to costs otherwise arose.1 Failure by the party receiving the costs to commence the assessment
proceedings within that time will entitle the paying party to apply to the court for an order
specifying the time within which the bill is to be presented, in default of which the court may
disallow all or part of the costs concerned.
2.23 Given the expectation that particulars of solicitors’ costs and counsels’ fees will be
provided in a more detailed manner and updated during the course of proceedings by means of
the client engagement letter (see Chapter 4), it is reasonable to expect that a bill of costs should be
forthcoming within a period of twelve weeks from the making of an order for costs or the ruling of a
settlement containing provision for costs.
Assessment costs and fees
2.24 The Report of the Legal Costs Working Group recommends that no costs should be allowable
in connection with an assessment (i.e. each party would be expected to pay their own costs arising
from the assessment). However, in order to provide sufficient incentive to parties to provide a bill
of costs within a reasonable time and to encourage acceptance of reasonable lodgments or tenders
in satisfaction of costs, two exceptions are recommended to this, viz. where the court had ordered
that they be paid by the party entitled for failure to deliver a bill of costs on time, or where the
party entitled declines to accept a lodgement or tender which is not exceeded on assessment. These
exceptions are detailed below in the description of the costs assessment procedure.
2.25 In relation to appeals against an assessment, the Report recommends that court fees of such
appeals should, in all circumstances, be paid by the party initiating the appeal. Insofar as appeals
are concerned, the Law Society and the Institute of Legal Costs Accountants maintain that the
outcome of the appeal should determine liability for payment of the fees. The IAG accepts that, with
a view to discouraging vexatious appeals and not disadvantaging meritorious appellants, the costs
and fees associated with the appeal should be borne by the unsuccessful party, unless the Appeals
Adjudicator, in exceptional circumstances to be stated by the latter, determines otherwise.
2.26 The IAG is also mindful that the rate of fees should – as envisaged in the Report - be lower
than that currently charged (i.e., 6% of the amount allowed after VAT has been applied). The IAG
is strongly of the view that the current court fee is a significant disincentive to referring a bill for
assessment and, in line with the recommendation in the Report, fully endorses the view that the
court fees associated with assessment (including appeals) should be significantly lower than those
that obtain at present.
Assessment procedures
2.27 The IAG suggests that the legal costs assessment procedure should encompass the following
elements or steps, but acknowledges that, in the drafting of the detailed rules or regulations
prescribing it, it may be further refined and supplemented.
1 Rule 47.7, Civil Procedure Rules.
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2.28 The party entitled to costs (“the party entitled”) should be required to furnish the bill
of costs within a period of twelve weeks, unless the parties agree to an extension, in default of
which the party liable for costs (“the party liable”) should be entitled to apply to court for an order
directing the furnishing of the bill within such further time as the court may specify. The costs of
such application should require under rule of court to be borne by the party entitled to the original
costs, and be capable of being set off against the costs due to that party. The court should also be
empowered on that application to direct disallowance of all or part of the costs due to the party
entitled in the event that they do not furnish their bill within the time specified by the court, or to
direct that the costs and fees of any subsequent assessment be paid by the party entitled.
2.29 The bill of costs should be prepared in accordance with a form to be prescribed. For
illustrative purposes, the IAG has designed a form of bill of costs covering costs of civil litigation,
which is set out at Appendix 2 (the IAG recommends that the barristers’ fee note should be revised
to reflect this format, as appropriate). The format would be easily adaptable to costs in respect of
individual motions or issues, or appeals. As will appear from its format, the bill breaks the costs of an
action into four stages, viz.: those arising:
a) prior to commencement of proceedings;
b) between commencement of proceedings and trial date;
c) in the course of trial; and
d) subsequent to trial.
2.30 At each stage, costs are itemised with reference to the date or dates on which the work
was carried out, a detailed description of work done for which costs are claimed, the name of the
solicitor, staff member, Counsel etc involved, together with the hourly charge-out rate of and number
of hours spent on the item by that individual and the amount claimed in respect of the item. A set
of instructions is contained at the outset of the bill as to how costs, fees and expenses arising are to
be itemised within this format. The bill would require to be accompanied by copies of itemised and
detailed fee notes of Counsel and expert witnesses and vouchers for expenses or outlays claimed
and an extract from the client engagement letters as issued and updated by the solicitor and Counsel,
respectively, for the party entitled.
2.31 On the bill of costs, copies of fee notes and vouchers and client engagement letters extracts
being furnished to the party liable, the latter should have 21 days within which to indicate that
they dispute the bill, or any item or items in the bill, and wish the disputed costs to be referred for
assessment. For such of the costs as are not disputed, the party entitled could, on expiry of the 21
day period aforementioned and on proof of service of the bill, apply to the legal costs assessment
office for a certificate of assessment of those costs in default. This certificate would have the same
effect, in terms of attraction of judgement interest on the costs as assessed and providing a basis for
execution to recover the costs, as the current certificate of taxation. For illustrative purposes, a form
of notice requesting referral of disputed costs for assessment has been included in Attachment 1 to
the form of bill of costs contained in Appendix 2.
2.32 A default assessment certificate could be set aside by the Appeals Adjudicator on the
application of the party liable where it could be shown that the bill had not been served on them, or
that a manifest injustice would otherwise result.
2.33 The party liable would be entitled, in respect of any costs disputed, to make a lodgement
with the Accountant of the Courts or – on the same basis as allowed for tenders of damages under
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the rules of court or any legislation which may provide for the making of tenders (see 5.3 below)
– offer to the party entitled a tender of such amount as they consider sufficient to satisfy those costs,
within 21 days of receipt of the bill and accompanying documentation. Where a lodgement is made,
the party liable would be required immediately to notify the party entitled of the lodgment. The party
entitled would have the right within 21 days from receipt of the notice, to accept the lodgement or
tender in satisfaction of the disputed costs. In the event that they do not, and the costs are assessed
at an amount not exceeding the lodgement or tender, the costs and fees of assessment would be
borne by the party entitled. For illustrative purposes, forms of notice of lodgement or tender and
acceptance of lodgement or tender have been included as Attachments 2 and 3, respectively, to the
form of bill of costs contained in Appendix 2.
2.34 The bill of costs would require to be lodged for assessment at the legal costs assessment
office, accompanied by:
(a) the extracts from the client engagement letters from the solicitor and counsel for
the party entitled, as updated;
(b) a completed questionnaire in a form to be prescribed, which should:
(i) set out a summary, in chronological sequence, of the work to which the
costs claimed relate;
(ii) indicate concisely the issues of law and / or fact which required to be,
and were, addressed;
(iii) indicate within what range of complexity, as determined by any relevant
guideline, the costs, or item(s) of costs claimed fall and provide reasons;
(iv) where it is claimed that any guideline applicable should not apply to the
costs, or any item of costs, set out the reasons why the guideline should not
apply;
(v) indicate any uplift claimed for complexity, special skill or other factor,
provided that such factor is not intended to be compensated under a
guideline applicable;
(vi) schedule the documents or extracts from documents, which are relied
upon principally in support of the claim for costs, stating date and relevant
page numbers of each, and furnish copies separately;
(vi) indicate whether or not the party entitled considers it necessary for their
litigation file or files to be produced for the purpose of the assessment; and
(vii) include – where the bill exceeded the requisite amount and oral
assessment was desired - a request to have the bill assessed by the oral as
opposed to the written procedure; and
(c) copies of the documents scheduled in the questionnaire and the original detailed
and itemised fee notes and vouchers for expenses and outlays claimed.
2.35 Where a bill, or part of a bill, had been referred for assessment, the party entitled would
be required to serve notice on the party liable that the bill had been referred to the legal costs
assessment office for that purpose, the notice to be accompanied by the completed questionnaire.
The party entitled would be required to furnish affidavit evidence of service of such notice to the
legal costs assessment office. The party liable would be entitled to inspect, and make copies of, any
documents referred to in the questionnaire with the exception of any content which was privileged,
and would have 14 days from receipt of notice of referral to lodge submissions with the office as
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to the amount in which the various items of the bill should be allowed, and serve a copy of those
submissions on the party entitled. Where the bill exceeded the requisite amount, the submissions
should include – where desired - a request that the bill be assessed by the oral as opposed to the
written procedure.
2.36 Where (a) the bill of costs exceeded €100,000 exclusive of V.A.T, and either party so
requested or (b) the legal costs assessor in the course of a written assessment considered it necessary
in order to clarify or resolve any issue concerning the bill, the bill, or the appropriate part of the bill,
would be assessed orally, in the presence of the parties.
2.37 The costs assessor undertaking assessment would, having received proof of service of
the notice of referral of the bill, notify the parties of the date of assessment in the case of an oral
assessment, and, irrespective of the mode of assessment, indicate a time within which the party
entitled and the party liable, respectively, would be at liberty to lodge with the legal costs assessment
office and serve on each other, supplemental submissions in reply to points made by the other party.
2.38 The costs assessment officer would, for the purpose of conducting any assessment, written
or oral, be entitled to call for any further documentation in respect of the litigation in the custody
or control of the parties or their solicitors, on terms that content subject to privilege would not be
disclosed to the other party, and to invite lodgement and exchange of further submissions from
either party, for the purpose of clarifying any issue.
2.39 On completion of the assessment and payment of the assessment fees, and in the absence of
an appeal within the time allowed for same, a certificate of assessment would issue from the legal
costs assessment office. The certificate would, as in the case of the default assessment certificate,
have the same effect as the current certificate of taxation, giving rise to accrual of judgement interest
and enabling execution for recovery of the costs.
2.40 Either the party entitled or the party liable would have the right to appeal an assessment on
its merits to the Appeals Adjudicator, or in the case of a Circuit Court bill to the County Registrar for
the county in which the proceedings had been instituted, within 14 days of receipt of notification of
the outcome of the assessment. The appeal would be conducted by oral hearing and based on the
material presented to the costs assessor. On the determination of an appeal, and in the absence of a
reference to the court on a point of law within the period allowed, a certificate of assessment would
issue on payment of the assessment and appeal fees.
2.41 The unsuccessful party to the appeal would be fixed with the costs and fees of the appeal
unless the Appeals Adjudicator, or County Registrar decided, in exceptional circumstances which
would require to be explained by the Appeals Adjudicator or County Registrar in writing, that liability
for the costs and fees should be otherwise allocated or apportioned between the parties.
2.42 A party to an appeal determined by the Appeals Adjudicator would have a right of further
appeal to the High Court on an issue of law only, within 14 days from determination of the appeal. A
similar form of appeal would be available to the Circuit Court in the case of an appeal disposed of by
the County Registrar.
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3.1 Recoverable costs guidelines should be devised in respect of work carried out by solicitors,
barristers and experts witnesses in the course of civil litigation.
3.2 The IAG recommends that any guidelines adopted by a regulatory costs body should take
cognisance of the value of the claim or counterclaim where these are expressible in monetary terms.
The guidelines should also take into account relevant factors such as time expended and complexity.
The IAG concurs with the views expressed in the Report of the Legal Costs Working Group in
relation to the importance of the ‘no foal, no fee’ arrangement in terms of providing access to justice
for many. Accordingly, the IAG considers it important that the risk involved in taking on such cases
should be taken into account in the formulation of the guidelines.
3.3 In relation to the abolition of the ‘global’ fees (i.e., solicitors’ instructions fee and the
barristers’ brief fee) and their replacement by a set of charges for work done, the IAG sees no reason
why this proposal cannot be acted on. Indeed, the IAG does not believe the retention of these fees
- as presently constituted - is compatible with a move towards charging for work on the basis of
‘work done’. It seems eminently reasonable to require those charging for legal work to systematically
itemise costs by reference to the various stages of the litigation process.
3.4 The IAG notes that the issue of expert witnesses was not considered in any great detail
by the Legal Costs Working Group. The IAG is of the view that the recoverable costs guidelines to
be formulated must take into account the increasingly wide range of expert witnesses now used
regularly in litigation. The interim regulatory costs body will have to address this issue.
3.5 The point needs to be made that, insofar as solicitor and client costs are concerned, no party
will be bound by recoverable costs guidelines. Parties will be free to enter into agreements with their
lawyers as they see fit (subject to the provisions relating to client information). Parties liable to pay
costs will also be free to decide to pay costs as they see fit. The guidelines are intended to offer an
indication – where costs are recoverable – of amounts or time periods generally deemed reasonable.
In cases of dispute, costs will be assessed on the basis of the guidelines while taking the particular
circumstances of each case fully into account.
3.6 The IAG accepts that there is a wide range of litigation and it would neither be desirable
nor feasible to put in place guidelines of a type which would provide a simple, mathematical model
designed to pre-determine the legal costs recoverable in every type of case.
3.7 However, the IAG does believe that it is legitimate and practical to put in place guidelines
designed to provide a degree of clarity to a potential litigant as to the extent of the liability he or
she might expect to incur in the event that they were held liable for the other party’s costs and,
conversely, how much they are likely to recover as party and party costs in the event that they are
awarded the costs of the proceedings. Ultimately, in cases of dispute, it will fall to an assessment
officer to determine what costs are reasonable in a particular case.
Recoverable Costs Guidelines3
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3.8 The IAG acknowledges that taking complexity and other relevant factors into account in
relation to guidelines will be challenging but this consideration is not such as should prompt the
abandoning of the proposal as to recoverable costs guidelines.
3.9 In order to take account of different categories of litigation, varying degrees of complexity,
urgency or responsibility undertaken within a litigation category, regional disparities in business
costs, and other variables, the regulatory body should be given the widest possible discretion
under statute as to how such guidelines should be formulated. The process will require the conduct
of research into current levels of solicitors’ costs, counsels’ and expert witness fees, and expenses
generally as allowed on taxation, as well as office and business costs in urban and rural areas.
The fixing of guidelines based on detailed research, and their regular review, and the allowing of
exceptions to the guidelines, should address concerns expressed by both the Law Society and the Bar
Council that guidelines would undermine the “equality of arms” principle by limiting unreasonably
the extent of the costs recoverable by a successful party under the “costs follow the event” principle.
3.10 The regulatory body should be constrained as little as possible as to the form which
guidelines should take or the range of litigation categories or activity which they may encompass
- options available would include guides as to hourly rates allowable measured against a timeframe
or hours allowable for the completion of steps within litigation such as preparation of a notice for
particulars or notice to admit facts or documents, or an interlocutory application such as a motion for
judgment in default of defence or for discovery.
3.11 Where guidelines are applied either to a category of litigation or to a particular step within
such a category, they should have effect unless the party presenting the bill can establish that the
case or step concerned was so exceptional in its nature as not to fall within that contemplated by
the guideline.
3.12 The IAG is opposed to the introduction of scales containing fixed costs, save possibly in
relation to routine administrative tasks. The current Appendix W should be abolished.
21
Solicitors
4.1 The IAG notes that all of the submissions received, which referred to the recommendations
in relation to client information, generally welcomed the notion of strengthening and improving the
mechanism currently provided for by section 68 of the Solicitors (Amendment) Act 1994. The letter
- which is sometimes referred to as a ‘section 68 letter’ and, sometimes, as ‘a client engagement letter’
- will be referred to as a client engagement letter from hereon.
4.2 The IAG believes that it should be possible to provide for an improved client engagement
letter along the lines proposed in the Report of the Legal Costs Working Group, taking into account
the practical considerations raised in the submissions.
4.3 As regards the practicability of furnishing a client engagement letter within a stated
timeframe, the IAG accepts that it may not be always possible to do so within a stipulated period.
Nevertheless, there is no reason to believe that, save in exceptional circumstances, it will not be
possible for a solicitor to issue such a letter within a reasonable timeframe.
4.4 The IAG fully accepts that it is difficult to predict all of the costs likely to arise in civil
litigation at the outset of the process. Nonetheless, it should not be beyond a solicitor to inform
a client of the costs likely to arise initially and give a general estimate as to possible future costs
depending on what might happen in the case. It is precisely for this reason that the periodic
updating of costs information is essential. The letter should also contain an indication from the
solicitor of whether it might reasonably be anticipated that an expert or expert witnesses would
require to be retained, and, where reasonably possible, provide an estimate of the outlay which
might be likely to be incurred in respect of such witness or witnesses.
4.5 The IAG notes that a ‘cooling off’ provision may, given the pace of civil litigation, be
somewhat academic in some cases. Furthermore, a person engaged in legal proceedings may, at any
stage in the civil process, decide not to pursue the proceedings any further. In the circumstances, the
IAG does not see any value in setting a ‘cooling off’ deadline which, in practical terms, has no legal
effect. The IAG recommends that the client engagement letter contain general information in relation
to withdrawing from a legal action and the consequences of doing so, legal and financial.
4.6 The updating of the client information letter is essential. The IAG notes that the Report
recommends that the letter be periodically updated whenever a significant increase in estimated costs
is anticipated and at critical decision points.
4.7 The Report recommends that failure on the part of a solicitor to issue a client engagement
letter should be subject to a meaningful penalty. In the view of the IAG, where a solicitor is in
breach of a requirement set out in law, and especially one such as this which is designed to protect
the financial interests of the client, an appropriate penalty must be levied. In the case of a solicitor
who fails to adhere to the legislative requirements in relation to a costs engagement letter, the IAG
recommends that an appropriate penalty, ranging from censure to partial non-recoverability of costs
should be applied.
Client Information4
22
4.8 To avoid any concern about the breach of legal professional privilege, the IAG proposes that
the costs element of the client engagement letter should be in the form of a separate ‘detachable’
annex to the letter. In this regard, the IAG has put forward a costs annex of the client engagement
letter for illustrative purposes (see Appendix 3).
4.9 The IAG proposes that the letter should be furnished to the client within 28 days from the
date of taking initial instructions. The letter should set out the basis on which charges and estimates
are made (e.g., hourly charge-out rate, daily fee etc) and it should contain a brief description of work
to be done in respect of each part of the litigation process. The letter should set out the fees charged
for each lawyer and expert separately. An estimate should be provided at the earliest possible
opportunity where it is not possible or practicable initially to estimate costs in relation to a particular
stage in the litigation process. Finally, the costs annex to the client engagement letter should be
updated every six months from the date of taking instructions and where, during the litigation, there
is a material increase in the client’s possible costs exposure due to particular developments in the
litigation.
4.10 The IAG recommends that the legislation to be drafted in relation to client information
should make it explicit that contentious business includes legal services provided with regard to
applications made to the Personal Injuries Assessment Board and that the requirements in relation to
the client engagement letter apply to all such business.
Barristers
4.11 The Bar Council addressed the issue of client information in their submission in great detail
and put forward proposals in relation to a requirement on barristers to disclose certain information
regarding costs at the time of, or as soon as practicable after, accepting instructions to act in a matter.
The Bar Council submitted a draft document which may be used by barristers and solicitors to fulfil
the dual function of providing information on legal costs and constituting an agreement as to legal
costs (see Appendix 4).
4.12 The Bar Council submitted that rules governing the obligation to make disclosure of legal
costs should be contained in a practice ruling to be issued by the Professional Practices Committee
of the Bar of Ireland and, if amendments prove necessary to ensure the efficacy of the disclosure
system, this can be achieved by amendments of such rulings, rather than necessitating the enactment
of amending legislation.
4.13 The IAG welcomes the Bar Council’s proposals and it would be happy to see the Professional
Practices Committee of the Bar of Ireland bring forward an appropriate practice ruling. However, the
letter of disclosure should be reformulated along the lines of the costs annex of the proposed client
engagement letter.
4.14 In summary, the IAG recommends the implementation of the recommendations in relation to
client information, subject to the points raised above.
23
5.1 This chapter deals with the recommendations contained in chapter 8 of the Report of the
Legal Costs Working Group. These recommendations emanated from a desire on the part of the Legal
Costs Working Group to identify current practices which may generate costs unnecessarily or operate
as an impediment to containing costs. The IAG recommends that all of the recommendations should
be implemented.
5.2 In relation to the recommendation concerning Order 99, rule 6 of the Rules of the Superior
Court (see Appendix 1), the Law Society suggests that the IAG should await the judgement of the
High Court in relation to the making of an Order by the Master of the High Court in Kennedy v
Killeen Corrugated Products Ltd. and Another. The Society advises that the case highlights issues of
relevance to the recommendation to extend the terms of Order 99, rule 6 of the Rules of the Superior
Courts. The IAG notes that the proposal relates to an amendment to the Rules of the Superior Courts,
and considers that it is a matter for that committee to decide whether to have regard to the Kennedy
case in addressing the proposal.
5.3 The Self-Insured Task Force suggests that the parties entitled to make a tender in respect of
costs should not be confined to the insured sector and the State. The IAG sees merit in the proposal,
but notes that this issue is logically linked with the facility currently available under the rules of court
to make tenders in respect of damages, and recommends that the policy issues as to what criteria
should determine entitlement to make a tender in the course of litigation be considered further by
the relevant Ministers.
5.4 The SITF also suggests that the period allowed to serve a summons should be reduced from
the present period of twelve months. As this is outside the terms of reference of the IAG, we can
only suggest that the matter be referred to the Minister for Justice, Equality and Law Reform for
consideration.
5.5 The IAG asked the Superior Courts Rules Committee whether it was considering giving
effect to the recommendations relating to procedural change. The Committee, in response, stated
that it has been decided to draw up a scheme to address the matters raised by the recommendations
in question. The IAG looks forward to the Rules Committee dealing with those recommendations
which fall to it for consideration. Ideally, it should be possible to implement these recommendations
by way of amendments to rules of court rather than by way of primary legislation. Insofar as other
recommendations are concerned, the IAG recommends that the Minister for Justice, Equality and Law
Reform should now proceed to have the required legislation drafted.
The Court’s role in fixing liability for costs
5.6 The IAG acknowledges the need for greater scrutiny and discrimination as to what costs
should be allowed when the court is fixing liability for costs between parties. Order 99 of the Rules
of the Superior Courts currently allows for exceptions to the general principle that costs follow the
Legislative and procedural change5
24
event2 , and permits a court to award costs of discrete issues3 , to deal with costs during the course
of the proceedings4, to determine the costs payable for specified stages of an action5 award a sum
in lieu of taxed costs6, and to order the setting off of costs awarded as between the parties. The
impression gained, however, is that discrete orders of this nature are the exception rather than the norm.
5.7 The court, when determining liability for costs in respect of an action, should be required to
examine the following factors:
(a) whether the party seeking costs had been wholly or only partially successful in
prosecuting or, as the case may be, defending, the case;
(b) whether a party has caused costs to be incurred, or time expended, unnecessarily
or otherwise unreasonably in the proceedings, either on their own behalf or on the
part of another party to the proceedings, and in particular:
(i) whether a party who has been successful in respect of any part of their
claim has exaggerated their claim;
(ii) whether a party has acted unreasonably in prosecuting or defending their
case on a particular issue, assertion or allegation;
(c) whether a party has made reasonable efforts to settle the claim comprised in the
proceedings either before the institution of or during the conduct of the proceedings;
(d) whether a defendant, or respondent to a counterclaim, has made an offer to settle
the proceedings on a “without prejudice save as to costs” basis (see recommendation
at paragraph 8.39 of the Legal Costs Working Group’s Report) and the time at which
any such offer may have been made;
and liability costs should be allocated or apportioned accordingly. Provision for this could be made
in rules of court.
2 Order 99, rule 1(1) , (2) and (3).
3 Order 99, rule 1(3) and (4).
4 Order 99, rule 5(1).
5 Order 99, rule 5(2)(c).
6 Order 99, rule 5(2)(a).
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Jurisdictional limits
6.1 The current civil jurisdictional limits for the District and Circuit Courts date back to 1991.
Sections 13 and 14 of the Courts and Court Officers Act 2002 provide that the civil jurisdiction of
the Circuit Court be increased from £30,000 to €100,000 and that of the District Court from £5,000
to €20,000. As the Report of the Legal Costs Working Group states: ‘There has been sustained
opposition from some sectors to the implementation of these provisions because of a concern that
such increases, if implemented, would push up the level of court awards. Implementation of the
provisions has been effectively ‘parked’ pending further consideration of the issue in the light of
ongoing developments, especially the establishment of the PIAB’.
6.2 The Legal Costs Working Group, having considered this issue, concluded that the failure to
increase the civil jurisdictional limits since 1991 has led to a situation where more and more cases
are unnecessarily heard in the higher courts with attendant increased legal costs. The Working Group
did express some caution in relation to increasing the limits. It accepted that the changes proposed
in the 2002 Act may well represent something of a shock to the system if implemented overnight.
6.3 Mindful of the need to control insurance costs and their impact on society, the Working
Group recommended that the jurisdictional limits of the courts be progressively increased and
adjusted regularly thereafter, save for personal injuries cases where the status quo should be
maintained for a further period until a more complete understanding of the dynamics of the
Government’s insurance reform programme is available.
6.4 The IAG is of the view that no sound reason has been advanced to ‘freeze’ the jurisdictional
limits indefinitely. The Oireachtas decided to raise the jurisdictional limits four years ago but nothing
has happened in the meantime. The concern expressed in relation to the limits has been in the
context of personal injury cases. However, the PIAB is now up and running and this will increasingly
take personal injury actions out of the courts. In all of the circumstances, the IAG recommends that
the increases provided for in Sections 13 and 14 of the Courts and Court Officers Act 2002 should be
implemented forthwith (except for personal injury cases).
Small claims 6.5 The Report of the Legal Costs Working Group states that consideration should be given to
a substantial increase in the jurisdictional limit of the Small Claims Procedure and that the range
of cases dealt with by means of this procedure should be expanded. The Small Claims procedure
provides a cost effective method of dealing with a civil proceeding in respect of a small claim (not
exceeding €2,000). It is designed to handle consumer claims cheaply without involving a solicitor. To
be eligible to use the procedure, the plaintiff must have bought the goods or services for private use
from someone selling them in the course of business. In addition to consumer claims, the procedure
can be used in respect of minor damage to property and the non-return of a rent deposit in
relation to a holiday premises. Claims arising from a hire-purchase agreement, a breach of a leasing
agreement and debts are excluded from the procedure.
Miscellaneous6
26
6.6 The IAG recommends that the jurisdictional limit of the Small Claims Procedure be increased
to €3,000. The IAG further recommends that the Minister give consideration to expanding the range
of cases dealt with by means of the procedure.
Judicial resources6.7 Many submissions made reference to judicial resources, and how those resources are
managed and allocated. Calls for better case management and an improved case listing system were
common to many of the submissions. It is essential that, whatever resources are deployed, they are
used in the most effective and efficient manner possible.
6.8 The IAG has noted that many of the parties have expressed concern about the current
listing system and the postponement of cases where judges are not available. The IAG is mindful
that certain practices – such as the tendency for last-minute settlements – exacerbate the problem
and frustrate efforts to plan judicial business efficiently. It has also been put to the IAG that there
may be incentivising factors influencing the late settlement of cases. The factors causing delay in the
allocation of hearings and in disposal of litigation should be the subject of examination and remedial
action. The IAG recognises the primary role of the judiciary in this regard and recommends that the
resources of the Department of Justice, Equality and Law Reform and the Courts Service should be
made available to the judiciary in relation to any such examination.
6.9 On the issue of judicial resources, the IAG acknowledges the need to evaluate this, but would
stress that the level of judicial resources required to carry out the work of each bench effectively and
efficiently can only be examined in the context of the factors identified in the Report of the Legal
Costs Working Group which impinge on judicial effectiveness (such as organisation of districts/
circuits, management of judicial resources and working practices).
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APPENDIX 1Executive Summary of the Report of the Legal Costs
Working Group
General2.1 The Group recognises the profound impact that the principle of ‘costs following the event’ has on the legal costs’ environment. It underpins a view that a party should be able to recover their reasonable costs in vindicating their rights and is central to the practice of ‘no foal no fee’ with its attendant impact on access to justice for many. The Group noted that while most common law jurisdictions operate similarly, some, such as the United States, do not. However, in the absence of a convincing case for change and given the paucity of research on this topic, the Group does not recommend abandoning the principles underpinning our system of costs recovery. Therefore, a considerable element of the Group’s work was concerned with the costs recovery process (5.15 – 5.17).
Recoverable Costs2.2 The Group is convinced that greater predictability and transparency is required and recommends the establishment of a legal costs regulatory body to formulate guidelines setting out the amounts of legal costs that normally can be expected to be recovered in respect of particular types of proceedings or steps within proceedings (5.22).
2.3 The Group recommends that such costs guidelines be based on an assessment of the amount and nature of work required to be done in such a case and comprehend such elements as:
• the appropriate hours expended by the various persons to be remunerated,• the complexity of the proceedings and the stages therein, and• the level of the court in which the case is heard (5.22 – 5.24).
2.4 The Group believes that the lumping together of so many elements of the solicitor’s work into one instructions fee, usually by far the largest single item on a bill of costs, seriously inhibits transparency and openness and recommends that the solicitor’s instructions fee be broken down into its component parts and follow the guidelines recommended above. A similar approach should be adopted in relation to the counsel’s brief fee (5.26 – 5.27, 5.32).
2.5 For the reasons set out in the Report, the Group does not recommend the setting of scales of fees having absolute mandatory effect. However, it recommends that the onus should be on a party seeking costs higher than those set out in the guidelines to show why, in the particular circumstances of the case, the higher amount claimed should be paid (5.23).
2.6 The guidelines should allow for flexibility to reflect the individual and exceptional circumstances which may arise at different stages of a particular case. While some cognisance should be given to the financial value of the claim or counterclaim in dispute and the complexity of the case, the Group is of the view that costs should be primarily assessed by reference to work actually and appropriately done and that the level of recoverable costs should not be proportionate to that value nor should it be the main determinant of the amount of costs recoverable (5.23).
Two-thirds Rule2.7 Given our recommendation that costs should primarily be recoverable by reference to work done, the Group considered the almost universal practice whereby Junior Counsel is paid two thirds the rate of Senior Counsel as unacceptable and unfair given its arbitrary nature (5.28 – 5.30).
Competition2.8 The Group noted the preliminary report of the Competition Authority on the legal profession and its discussion on professional structures. The Group did not replicate this enquiry but limited itself to considerations as to costs. However, it believes that the principle of costs being assessed by reference to work done is the proper approach to be taken and recommends that the costs guidelines do not take the ‘grade or level’ of the counsel into consideration (5.29).
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Jurisdictional limits2.9 The Group is very concerned with the impact of inflation on the jurisdictional limits of the various courts and believes that this leads to costs escalating as actions are inadvertently being driven into higher courts. For the reasons set out in the Report, the Group recommends that the jurisdictional limits of personal injuries cases be maintained until a more complete understanding of the dynamic of the Government’s insurance reform programme is available. It recommends that for all other areas the jurisdictional limits be adjusted to take account of inflation and that such limits be adjusted regularly thereafter (5.41).
Family law2.10 The Group is of the view that in marital break-up cases it is important that there is the fullest disclosure possible of the capital and income of each spouse at the earliest opportunity. Spouses and their advisers are not able to negotiate successfully if one or even both parties are convinced that the other is hiding financial information. To seek to address this problem each party should, at the earliest possible stage after the commencement of separation or divorce proceedings, have the right to require the other party to make a full and complete disclosure of their assets and liabilities. The disclosure will need to be capable of being enforced by suitable penalties for any party who does not provide full and complete disclosure or it is subsequently discovered has failed so to do (5.44 – 5.45).
Judicial resources2.11 The Group recommends that the Government should ensure that the level of judicial resources required to carry out the work of each bench effectively and efficiently is provided. However, the issue of resources cannot be separated from other relevant factors impinging on judicial effectiveness such as organisation of districts/circuits, management of judicial resources and working practices. All of these issues need to be addressed (5.56).
Empowering the Client2.12 The Group recognises the importance of ensuring that clients get full and up-to-date information on the costs implications of their cases. This information should be provided at the critical stages of the process to aid the clients in making informed decisions. The Group believes it important that clients should be given ample opportunity at all stages to terminate proceedings and prevent the further escalation in costs. To this end the Group recommends that;
• the costs agreement letter issued by solicitors (as provided for by section 68 of the Solicitors (Amendment) Act 1994) be amended to provide the client with more detailed information
• unless the circumstances clearly preclude it, clients should be afforded a cooling-off period from receipt of their costs agreement letter before proceedings are commenced
• periodic updates be provided• solicitors be obliged to notify clients of material developments in the conduct of litigation
and• clients be given the opportunity to cease their action before any material increase in
expenditure is incurred (subject to the knowledge that a litigant who abandons litigation may be liable to the costs of the opposing party) (Chapter 6).
2.13 The Group recommends that a failure on the part of a solicitor to issue a costs agreement letter should be subject to a meaningful penalty (6.14).
2.14 The Group recommends that costs agreement letters form part of the assessment of costs process (party and party costs as well as solicitor and client costs) and that, where costs are in dispute, both parties have access to any cost agreement letter which has been issued (6.15).
Assessing costs - Process2.15 The Group recommends that the taxation system be replaced by a new system of costs assessment carried out by a Legal Costs Assessment Office. The Group believes that the costs guidelines and other associated reforms it proposes will bring a greater simplicity and transparency to the system and recommends that the assessment process be a written procedure. The Group also recommends that the new appeals process be an oral procedure in public (7.16).
2.16 The Group recommends that parties should be encouraged to have only those elements of costs under dispute assessed and that the charge for assessment be adjusted accordingly (7.21 – 7.24).
29
2.17 The Group believes that the current level of fees in relation to taxation places considerable costs in the way of those seeking to challenge excessive legal costs. Accordingly, the Group recommends that the charges associated with the proposed assessment structure should be confined to recovering the expenses of the legal costs assessment, appeals and regulatory bodies (7.25). 2.18 The Group recommends that there should be an entitlement by parties liable to pay costs to make a lodgement or tender in advance of assessment, and in the event that the amount of their offer or tender is not exceeded on assessment, that the opposing party should be liable to pay the court fees in respect of the assessment (7.20).
2.19 The Group recommends that provision be made for up-to-date information and data to be made available to the public on the outcomes of assessments and appeals (7.34).
2.20 The Group noted the serious adverse consequences that the failure to update the so called Appendix W costs has had on the system of costs recovery and recommends that the body responsible for issuing guidelines be charged under statute with keeping its costs guidelines up-to-date (7.17).
Assessing Costs - Regulatory Body2.21 The Group recommends the establishment of an independent Legal Costs regulatory body to exercise regulatory functions, to set guidelines and recoverable standards and have a public information role (7.17).
Legal Costs Assessment Office2.22 The Group recommends the establishment of a Legal Costs Assessment Office to replace the current Office of the Taxing Master (7.34).
Appeals Adjudicator2.23 The Group recommends the creation of the post of an Appeals Adjudicator to conduct assessment appeals. Appointment to the position of Appeals Adjudicator should be by way of open competition conducted by the Public Appointments Service. The competition should be open to suitably qualified persons and not be confined to members of the legal profession. Appeals
Adjudicators should be appointed on a non-renewable fixed contract basis (7.37).
Lodgement2.24 A recent decision of the Supreme Court (Cronin v Astra, 14 May 2004) has held, on the basis of current legislation, that where a plaintiff accepts a lodgement by a defendant in High Court proceedings which falls within the jurisdiction of a lower court, the plaintiff cannot be confined to receiving costs on the scale appropriate to the lower jurisdiction. This contrasts with the outcome where an order is made by the court awarding damages within a lower jurisdictional ambit. This makes it commercially unattractive for a defendant to make a lodgement below the jurisdiction of the court in which the plaintiff has chosen to initiate proceedings, and operates to discourage efforts by defendants to bring proceedings to a conclusion pre-trial. The Group recommends legislative action to remedy this defect (8.15).
Procedural reform2.25 The courts should be enabled to deal with cases justly, and this expressly requires the court to allot to individual cases an appropriate share of the court’s resources, while considering the needs of other cases. Existing procedural rules available to the courts to minimise delay and contain costs levels are under-utilised. An overriding rule of interpretation prescribing the objectives which should be pursued by the courts in interpreting the rules and employing the measures available, should lead to a more rigorous application of the rules. If a system of administration of justice is to operate effectively, the right of access of individual litigants to justice must, in reality, be reconciled with the rights of access of parties to other cases. In this regard, the Group recommends that consideration be given, if need be in primary legislation, to the formulation of a principle of interpretation which would require that a balance between the right of access of individual litigants and the rights of access of parties to other cases be struck by the courts when applying the rules of court in individual cases (8.32).
2.26 The Group recommends that the rules of court should contain a specific Order facilitating supervision by the court of the pace of litigation and containing measures to ensure delay is minimised (8.33).
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Sanctions for delay2.27 The Group recommends that Orders of the Court should also provide for the making of “unless” orders in respect of directions given by the court, i.e. orders designating that, unless the party concerned complies with the direction concerned within a specified period of time, the party would, without the need for a further application to the court, suffer judgment, or dismissal of their claim, or liability for costs or whatever the appropriate penalty is (8.34).
Fixing of liability for costs at the pre-trial stage2.28 The Group recommends that the rules which now apply the commercial and competition proceedings lists in the High Court which place an onus on the court to determine liability for the costs of interlocutory applications when disposing of those applications should be extended in their application to all proceedings (8.35, 8.38).
2.29 The Group recommends that costs of pre-trial motions should, save where it would, in the circumstances of the case, be unjust to do so, be awarded to the successful party to the motion, measured at the hearing, and be set off against any award of damages or costs which may ultimately be made in favour of the successful litigant (8.37).
Post-proceedings letters of offer2.30 The Group recommends that provision should be made, if necessary in primary legislation, to give effect to a letter of offer of settlement of the proceedings by a defendant in relation to the claim of the plaintiff on a “without prejudice save as to costs” basis particularly in cases where satisfaction other than by means of a monetary payment is involved in the settlement. A similar provision should be enacted in respect of the plaintiff making an offer to settle (8.39).
Costs penalties for delay2.31 The Group recommends that the terms of Order 99, rule 6 of the Rules of the Superior Courts, which allows for penalties in costs to be applied to a solicitor responsible for delay in the trial of proceedings, should be amended so as to apply to all steps in the litigation process and not
just the trial (8.40).
Provision of estimates of costs2.32 The Group recommends that the court should be empowered by rule of court to require the parties to produce to the court and exchange with each other estimates of costs incurred at any stage of the proceedings, including the pre-trial stage (8.41).
31
Appendix 2FOR ILLUSTRATIVE PURPOSES ONLY
Form of Bill of Costsfor costs of High Court civil proceedings at first instance*
Bill of Costs
Costs awarded to A.B. as Plaintiff [or as the case may be] in proceedings entitled
The High Court Record No. Between A. B. Plaintiff
and
B. C. Defendant]
Under an Order of the Court dated the ………….. 2 ……
To: B.C. [or as the case may be]of ………………………………… …………………………………Defendant
The plaintiff requests that you pay this bill, details of which are set out below, in discharge of the legal costs awarded to the plaintiff in the above proceedings by order of the Court dated the ………………………………
* The form of bill set out here relates to costs due by a defendant to a plaintiff arising from the trial of an action at first instance in the High Court.
PLEASE NOTE:
1. If the defendant disputes the whole or any part of the costs claimed by the plaintiff, the defendant must, within 21 days of receiving the bill notify the plaintiff or his/her solicitors ………………………………………of……………………………………………………………………………….……………………………………………………………………………….
(1) of the item or items in the bill which the defendant disputes, and
(2) that the defendant wishes the costs disputed to be referred for assessment to the Legal Costs Assessment Office, in accordance with the form attached (Attachment 1).
2. In respect of any costs disputed by the defendant, the defendant may , within 21 days of receiving the bill and documentation referred to in paragraph 5 below, lodge the amount he/she considers sufficient to satisfy those costs with the Accountant, at the Courts Service, Phoenix Street North, Dublin 7, using the lodgement slip attached (Attachment 2). In this event, the defendant must immediately upon making the lodgement notify the plaintiff or his/her solicitors in the form attached (Attachment 3) by hand, registered post or e-mail at the following e-mail address:……………………………………………………………………………….
If qualified to do so, the defendant may , within 21days of receiving the bill, make to the plaintiff or his/her solicitors an offer of tender of payment of the amount the defendant considers sufficient to satisfy those costs, instead of making a lodgment with the Accountant.
32
3. The plaintiff may accept an amount lodged or tendered in satisfaction of the costs to which it relates. If he/she does not, and the amount at which those costs are assessed does not exceed the amount lodged or tendered, the plaintiff shall be liable for the assessment costs and fees.
4. In respect of any costs not disputed by the defendant within the time allowed, the plaintiff may apply for a certificate of assessment of those costs, in the amount in which they are claimed.
5. This bill should be accompanied by copies of the following documentation relating to the costs concerned:
(i) itemised and detailed fee notes of Counsel and expert witnesses (ii) vouchers for expenses or outlays claimed and (iii) an extract from the client engagement letters as issued and updated by the solicitor and
counsel, respectively, for the party entitled to the costs.
Dated …………….2….
(Signed) of ………………………….…..………………………………… or [EF & Co., of …………………………….………………………………..Solicitors for A.B or as the case may be] *
33
SUMMARY OF COSTS
Part Category Claimed V.A.T. Allowed V.A.T.
A Solicitors’ Costs
Counsels’ Fees
Experts’ fees and expenses
Other expenses
B Solicitors’ Costs
Counsels’ Fees
Experts’ fees and expenses
Witness expenses (other than experts)
Other expenses
C Solicitors’ Costs
Counsels’ Fees
Experts’ fees and expenses
Witness expenses (other than experts)
D Solicitors’ Costs
Counsels’ Fees
Experts’ fees and expenses
Other expenses
Total
* Insert as appropriate
34
Notes on preparation of Bill
1. In the case of solicitors’ costs, in the fourth column (Name of Solicitor etc.) specify grade, e.g. senior partner, assistant solicitor, legal executive, etc. of each solicitor or member of solicitor’s staff involved.
2. Where guidelines issued by the Legal Costs Regulatory Body as to the costs, fees or expenses recoverable for specific items of work done or steps taken apply to the bill, these items or steps should be individually itemised within the part of the bill (see Parts A to D below) under which they arise.
3. Where more than one Counsel or expert has been retained, set out the fees charged for each Counsel or expert separately within the part of the bill concerned.
4. The following should, where they arise, be itemised in the part of the bill concerned:
(a) Solicitors’ costs for taking of instructions, consideration of documents received, consideration of the facts and legal issues, preparing a case to advise or briefing of Counsel, whether for the proceedings generally or for a particular application or issue;
(b) Solicitors’ costs in respect of preparation of pleadings, notices, written submissions or other document prepared (see note 6 below);
(c) Solicitor’s costs and expenses in respect of issue and service of documents;
(d) Solicitor’s costs and expenses in respect of searches;
(e) Solicitor’s costs and expenses in respect of requests for or replies to particulars, interrogatories or discovery, and of notices to admit facts or documents and replies to such notices;
(f) Solicitor’s costs and expenses in respect of communications by letter, e-mail, telephone or otherwise and attendances at events such as consultations, meetings, visits, inspections, hearings of applications, the trial itself (see note 6 below), the taking of judgment, and noting of communications or attendances;
(g) Counsel’s fees for any consultation conducted, research undertaken, opinion provided, pleading, written submissions or other document prepared;
(h) Counsel’s fees for preparing an application, and making the application, respectively;
(i) Counsel’s fees for preparing for the trial and conducting the trial, respectively;
(j) Counsel’s fees in respect of the taking of judgment.
5. Where time spent is required to be specified, time spent on each item should be separately indicated.
6. Communications by letter, e-mail, telephone etc. of a routine nature need not be individually itemised. An indication should be given in the part of the bill concerned of the number of such letters or communications sent or made by the solicitor to the client and third parties (who should be identified), or received by the solicitor, and the overall time spent on them.
7. Care should be taken to ensure that a charge for work done made under one item is not duplicated under another.
35
Part A. COSTS INCURRED PRIOR TO COMMENCEMENT
OF PROCEEDINGS
Item no.
Solicitors’ costs
No. Date on which or dates between which work carried out
Detailed description of work done for which costs are claimed
Name of Solicitor or member of staff involved, hourly charge-out rate and time spent
Amount of costs claimed
V.A.T. Allowed V.A.T.
Total
Counsels’ fees
No. Date on which or dates between which work carried out
Detailed description of work done for which costs are claimed
Name of Counsel involved and time spent
Amount of fee claimed
V.A.T. Allowed V.A.T.
Total
Experts’ fees
No. Date on which or dates between which work carried out
Detailed description of work done for which costs are claimed
Name of expert involved, qualifications, area of expertise, hourly charge-out rate and time spent
Amount of fee claimed
V.A.T. Allowed V.A.T.
Total
36
Experts’ expenses
No. Date on which expense incurred
Description of expense Amount of expense claimed
V.A.T. Allowed V.A.T.
Total
Other expenses
No. Date on which expense incurred
Description of expense Amount of expense claimed
V.A.T. Allowed V.A.T.
Total
Part B. COSTS INCURRED BETWEEN COMMENCEMENT
OF PROCEEDINGS AND TRIAL DATE
Item no.
Solicitors’ costs
No. Date on which or dates between which work carried out
Detailed description of work done for which costs are claimed
Name of Solicitor or member of staff involved, hourly charge-out rate and time spent
Amount of costs claimed
V.A.T. Allowed V.A.T.
Total
Counsels’ fees
No. Date on which or dates between which work carried out
Detailed description of work done for which fees are claimed
Name of Counsel involved and time spent
Amount of fee claimed
V.A.T. Allowed V.A.T.
Total
37
Experts’ fees
No. Date on which or dates between which work carried out
Detailed description of work done for which costs are claimed
Name of expert involved, qualifications, area of expertise, hourly charge-out rate and time spent
Amount of fee claimed
V.A.T. Allowed V.A.T.
Total
Experts’ expenses
No. Date on which expense incurred
Description of expense Amount of expense claimed
V.A.T. Allowed V.A.T.
Total
Witnesses’ expenses (other than experts)
No. Date on which expense incurred
Description of expense Name of witness involved and time spent (where appropriate)
Amount of expense claimed
V.A.T. Allowed V.A.T.
Total
Other expenses
No. Date on which expense incurred
Description of expense Amount of expense claimed
V.A.T. Allowed V.A.T.
Total
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Part C. COSTS INCURRED IN COURSE OF TRIAL
Item no.
Solicitor’s costs
No. Date on which or dates between which work carried out
Detailed description of work done for which costs are claimed
Name of Solicitor or member of staff involved, hourly charge-out rate and time spent
Amount of costs claimed
V.A.T. Allowed V.A.T.
Total
Counsels’ fees
No. Date on which or dates between which work carried out
Detailed description of work done for which costs are claimed
Name of Counsel involved and time spent
Amount of fee claimed
V.A.T. Allowed V.A.T.
Total
Experts’ fees
No. Date on which or dates between which work carried out
Detailed description of work done for which costs are claimed
Name of expert involved, qualifications, area of expertise, hourly charge-out rate and time spent
Amount of fee claimed
V.A.T. Allowed V.A.T.
Total
Experts’ expenses
No. Date on which expense incurred
Description of expense Amount of expense claimed
V.A.T. Allowed V.A.T.
Total
39
Witnesses’ expenses (other than experts)
No. Date on which expense incurred
Description of expense Name of witness involved and time spent (where appropriate)
Amount of expense claimed
V.A.T. Allowed V.A.T.
Total
Other expenses
No. Date on which expense incurred
Description of expense Amount of expense claimed
V.A.T. Allowed V.A.T.
Total
Part D. COSTS INCURRED SUBSEQUENT TO TRIAL
Item no.
Solicitors’ costs
No. Date on which or dates between which work carried out
Detailed description of work done for which costs are claimed
Name of Solicitor or member of staff involved, hourly charge-out rate and time spent
Amount of costs claimed
V.A.T. Allowed V.A.T.
Total
Counsels’ fees
No. Date on which or dates between which work carried out
Detailed description of work done for which costs are claimed
Name of Counsel involved and time spent
Amount of fee claimed
V.A.T. Allowed V.A.T.
Total
40
Other expenses
No. Date on which expense incurred
Description of expense Amount of expense claimed
V.A.T. Allowed V.A.T.
Total
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FOR ILLUSTRATIVE PURPOSES ONLY
ATTACHMENT 1
NOTICE REQUESTING DISPUTED COSTS TO BE REFERRED FOR ASSESSMENT
Re: Costs awarded to A.B. as Plaintiff [or as the case may be] in proceedings entitled
The High Court
Between A. B. Plaintiff/Applicant
and
B. C. Defendant/Respondent]
Under an Order of the Court dated the ………….. 2 ……]
PLEASE NOTE that I wish to dispute [the entire of the above bill of costs] [the items/Parts of the above bill of costs listed below]* which were received [by me] [by my solicitors]* on the ……………………….and I request that the disputed costs be referred to the Legal Costs Assessment Office for assessment.
Dated …………….2….
Signed of ………………………….…..………………………………… [Defendant/Respondent] [Plaintiff/Applicant]*or [EF& Co.,
of …………………………….………………………………..Solicitors for ……………….]* [When corresponding, please quote the following reference.…. ]*
SCHEDULE
PARTS/ITEMS DISPUTED
* Insert as appropriate
42
FOR ILLUSTRATIVE PURPOSES ONLY
ATTACHMENT 2
REQUEST FOR LODGMENT IN COURT OF PAYMENT IN SATISFACTION OF COSTS
[Title of proceedings].
I.–Request for lodgement
Ledger credit to which lodged [If same as title or cause, state “as above”] The Accountant is requested to receive and place in an interest bearing cash investment* the sum of €………………, which amount is paid in [by] [on behalf of]** the [Defendant/Respondent] [Plaintiff/Applicant]** in satisfaction of the claim of the above-named [Defendant/Respondent] [Plaintiff/Applicant]** for costs ***on foot of a bill of costs dated the………………..2……….. sent to [the Defendant/Respondent] [ the Plaintiff/Applicant] ** on the ………………….2…
Dated (Signed) [Defendant/Respondent] [Plaintiff/Applicant]** or [EF & Co., Solicitors for……………….]**
To …………………………….
* Delete reference to interest bearing cash investment if not required ** Insert as appropriate*** Where the payment is made in satisfaction of a specific item or items, or a specific Part or Parts of the bill of costs, specify the item(s) or Part(s) to which the payment relates.
43
FOR ILLUSTRATIVE PURPOSES ONLY
ATTACHMENT 3
NOTICE OF [PAYMENT INTO COURT]* [TENDER]* IN SATISFACTION OF COSTS.
[Title of proceedings]
Take notice that [D.F. the Defendant/Respondent] [A.B., the Plaintiff / Applicant] * in these proceedings [has paid into Court the sum of € ] or[makes the following offer of tender of payment of € to the [Plaintiff/Applicant]* [Defendant/Respondent]* ]*
and says that that amount is enough to satisfy the [Plaintiff’s/Applicant’s]* [Defendant’s/Respondent’s]* claim for [costs]* [Item(s) no(s). /Part(s) No(s). ]* on foot of the bill of costs dated the ………………..sent to [the Defendant/Respondent]* [the Plaintiff/Applicant] * on the …………………….2…
Dated (Signed) [Defendant/Respondent] [Plaintiff/Applicant]* or [EF & Co., Solicitors for……………….]*
To …………………………….
* Insert as appropriate
44
Appendix 3FOR ILLUSTRATIVE PURPOSES ONLY
Costs annex of Client Engagement Letter
Client:Matter: Date of issue:
Original/first update etc
Costs estimated to be incurred and the basis on which charges are made:
Part Solicitor’s costs Counsel’s fees Experts fees and expenses
Other expenses
Total
A: Costs incurred prior to commencement of proceedings
B: Costs incurred between commencement of proceedings and trial date
C: Costs incurred in course of trial
D: Costs incurred subsequent to trial
Notes on preparation
1. The letter should be furnished to the client within 28 days from the date of taking initial instructions.
2. The basis on which charges and estimates are made should be detailed (e.g., hourly charge-out rate, daily fee etc) in respect of work to be done by solicitors, barristers and experts. VAT should be shown separately.
3. A brief description of work to be done in respect of each part of the litigation process should be set out.
4. In the case of solicitors’ costs, specify grade, e.g. partner, solicitor, assistant solicitor, legal executive, etc. of each solicitor or member of solicitor’s staff involved.
5. Where more than one Counsel or expert has been retained, set out the fees charged for each Counsel or expert separately within the part of the estimate concerned.
6. Where it is not reasonably practicable to estimate legal costs, a range of estimates may be inserted (see Note 2).
7. Where it is not possible or practicable initially to estimate costs in relation to a particular stage in the litigation process, an estimate should be provided when possible (see Note 2).
8. The costs annex to the client engagement letter should be updated every six months from the date of taking instructions and where, during the litigation, there is a material increase in the client’s possible costs exposure due to particular developments in the litigation.
45
Appendix 4
DISCLOSURE OF LEGAL COSTS AND COSTS AGREEMENTBETWEEN A BARRISTER AND A SOLICITOR
(as submitted by the Bar Council)
This Agreement is made between [INSERT name of barrister] and [INSERT name of solicitor] this [INSERT day] of [INSERT month] in the year [INSERT year] in relation to the matter(s) of [INSERT name of matter(s)] (“the Matter”).
Rule ____ of the Code of Conduct for the Bar of Ireland (“the Code of Conduct”) requires that I (barrister) disclose certain information to you (solicitor) regarding the legal costs I will charge in relation to the Matter. The Code of Conduct also provides that we may enter into a costs agreement which sets out the terms on which I offer to undertake work for you.
If, having read the disclosure information in part A hereof, you agree to the terms on which I offer to undertake work for you, you can accept my offer in this costs agreement by either signing the enclosed copy of this agreement and returning it to me or by continuing to provide me with instructions in the Matter.
A. DISCLOSURE OF LEGAL COSTS
Pursuant to Rule ____ of the Code of Conduct, I disclose the following information relating to my legal costs in the Matter.
1. Estimated work required
Based on the instructions and documents with which I am presently briefed, I consider that the following steps may be required in this Matter:
(a) Issue of________ proceedings in _____ Court (drafting of proceedings, opinion regarding Matter, consultation);
(b) Application for_____________ [injunctive relief] (drafting; [insert number] court appearances; consultation; possible opinion);
(c) Application for ____________ [other interlocutory relief] (drafting; [insert number] court appearances; consultation; possible opinion);
(d) [Any other steps that may be required].
2. Estimated legal costs
Based on the instructions and documents with which I am presently briefed, I estimate my legal costs will be [INSERT]. This estimate reflects the following factors:
(a) [Complexity, novelty or difficulty, if applicable];
(b) [Value or importance of matter, if applicable];
(c) [Time that will be required];
(d) [Urgency of the matter, if applicable];
(e) [Any particular skill, expertise, seniority, experience, knowledge as may be necessary];
(f) [Any other relevant factors which affect the level of the estimate].
The above estimate is based on the work required as I am presently instructed and it is disclosed to enable you to comply with your disclosure requirements under the Solicitors’ Amendment Act 1994 [or insert other legislation as appropriate]. I advise that this estimate is given as an indication only and I am not bound by it.
46
Should the scope or nature of my work, or the factors listed above, change in light of any further instructions I may receive from you or developments within the Matter, the above estimate may need to be revised.
-OR-
As I am presently instructed, it is not reasonably practicable for me to estimate my total legal costs. I estimate that the range of estimates of my total legal costs in the Matter is between [INSERT] and [INSERT]. The major factors that will affect the calculation of my legal costs are as follows:
(a) [Complexity, novelty or difficulty, if applicable];
(b) [Value or importance of matter, if applicable];
(c) [Time that will be required];
(d) [Urgency of the matter, if applicable];
(e) [Any particular skill, expertise, seniority, experience, knowledge as may be necessary];
(f) [Any other relevant factors which affect the level of the estimate].
3. Revisions to estimate
In the event of any events occurring within the litigation, which have a significant effect on the costs estimated above, I will forward to you an update of the above estimate.
Subject to any further instructions I receive from you which have the effect of varying the nature or the scope of the work in the Matter, I will forward to you an account for work done at the following intervals:
(a) once the work set out above has been competed; or
(b) at the end of [the appropriate period needs to be determined and inserted here].
4. Allocation of costs
Based on the instructions and documents with which I am presently briefed, I consider that there is a [insert statement regarding the possibility of recovery of legal costs from the other party in the Matter and the possibility of an order for costs being made against the client].
B. COSTS AGREEMENT
1. Work to be undertaken
As presently instructed you have engaged me to [INSERT scope of retainer] (“Work”). An estimate of the nature of the Work (and the value of the Work) to be undertaken by me is set out in A(1) above. The scope of Work may vary depending on any further instructions I receive from you and other developments within the Matter.
2. Fees
I offer to undertake the Work in accordance with the estimate set out in paragraph A(2) above. You should indicate your acceptance of my rates by either signing the document below and retuning a signed copy to me. You may also indicate your acceptance of my rates by continuing to provide me with instructions in the Matter.
47
3. Agreement
By signing and returning a copy of this document you agree to be bound by the terms in it. You may also agree to the terms herein by continuing to provide me with instructions in the Matter.
___________________________ ___________________________SIGNED BY BARRISTER SIGNED BY SOLICITOR:
PRINT NAME: PRINT NAME:
DATE: DATE:
___________________________ SIGNED BY CLIENT
PRINT NAME:
DATE: