As you will know it has become increasingly common since the LASPO Act for solicitors acting for protected parties in personal injury claims, including those involving severe and life-changing injuries, to seek not only the success fees but also part if not all of the "unrecovered" costs between the parties from the injured party.
Deputies are often asked to approve deductions from client funds representing the "shortfall" in costs once the costs negotiations have completed with the opposing party.
Our bill was £1 million and we've negotiated £750,000 with the other side. Can you approve a shortfall of £250,000?
This might be the essence of how this request is put to you, perhaps as an opening gambit to then agreeing a lower amount
We have maintained for some time that this approach was incorrect. We have recently concluded one case for a Deputy in which the court was also persuaded that this "after the horse has bolted" approach was incorrect and we were be able to achieve a reduction of nearly £60,000 on the sum that had been sought by the solicitors, meaning that the protected party's funds were not depleted and the Deputy did not need to dip into future living costs.
During the course of us dealing with that case the Senior Costs Judge, Andrew Gordon-Saker, published guidance setting out the procedure that should be followed, which is produced in full below.
In short -
- The settlement of costs with the opponent must be approved by the Court
- Any additional amounts payable by the protected party must be assessed by the Court, at the same time as either any assessment / approval of costs settlement
- The starting point is that such hearings are arranged for the benefit of the solicitors ad that it is not incumbent on the protected party to bear the costs
- Unless the Deputy takes issue with the additional costs sought by the solicitors and participates in the detailed assessment, the court is likely to make no order for costs for that aspect of the assessment
We can help you through this process on "no win, no fee" terms, and with an approach that ensures the maximum reduction to the shortfall in costs, while minimising any risk of adverse costs.
Or, if you have been presented with a horse that has already bolted, we may be able to reduce the claim to zero, as the procedure really ought to be well known to all solicitors practising in this arena.