Costs In Professional Negligence Claims
Recovering the Costs and Assessment of the Same
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What is a Professional Negligence Claim?
A professional negligence claim can be brought against a professional body or service provider if they did not fulfill their duty to their client.
Parties are encouraged, both by law and precedent, to try and settle a professional negligence claim prior to issuing Court proceedings, within the Pre-Action Protocol.
It is further encouraged that the parties undertake alternative dispute resolution or mediation prior to issuing Court proceedings. Mediation will involve both parties, including a professional negligence Solicitor as a professional mediator, and the aim is to reach a settlement outside of Court.
If a settlement is not reached outside of Court, then parties are encouraged to settle the matter at the earliest opportunity whilst in the Court proceedings and preferably before the Costs and Case Management Conference takes place.
However, despite the attempts of the parties, often settlement cannot be reached until the Court’s full involvement is received. Of course, the complexities in the case will play a part in both settlement and the amount of legal costs which will be incurred.
Costs In Professional Negligence Claims
A factor which plays a big role in settlement of a case can be the costs of professional negligence claims. Costs also play a big part of disputes between parties and the factor of who pays the costs, and the amount of costs to be paid forms a large part of agreeing to a settlement of many types of claims.
As with any case, it is not just the amount of damages which determine the level of costs in professional negligence claims. Rather, the complexity of these cases and the issues at hand impact the level of costs likely to be incurred. It can sometimes be the case that the costs exceed the damages figure agreed, given the complexities of professional negligence disputes.
The general rule of thumb is that the unsuccessful party pays the costs of the successful party. In relation to the costs incurred in professional negligence claims, where a case has been settled within the Pre-Action Protocol of Professional Negligence, then the costs in relation to the Pre-Action Protocol may not recoverable unless specifically agreed. This is because these costs are not deemed to be ‘costs of’, or are incidental to the proceedings as per section 51 of the Senior Courts Act 1981. One way to get around this is to make an all-inclusive offer for settlement at the damages stage. This all-inclusive offer will pay both damages and any costs incurred. It is usually the case that the Claimants will not agree to settle unless they can recover atleast portion of their legal costs; otherwise the Claimant will be required to pay their Solicitor’s fees from the damages they receive.
In relation to the Defendant in the case, they will also want to be able to recover their costs should the Claimant discontinue the case. However, the Claimant is not likely to discontinue a matter if they will then be required to pay the Defendant’s pre-action costs also. For these reasons, it is often the case that each party agrees to pay their own costs in unsuccessful professional negligence claims if settling pre-issue.
Overall, the Claimant is likely to seek their costs of the claim with an offer for settlement. It is advised that the level of recoverable costs can be agreed with an all-inclusive offer, or on the basis that an assessment of costs is agreed before agreeing to damages, which would give the Claimant the right to recover their costs.
It is worth noting that the conduct of the parties throughout litigation will have an impact on the level of costs which will be incurred or recovered. The conduct of the parties will also be considered by the Court when a Costs order is being considered. For this reason, it is advised that the parties try to reach a settlement at the earliest opportunity, as mentioned above.
How Can ARC Costs Assist?
ARC Costs are specialist Costs Lawyers and Costs Draftsmen with vast experience in all areas of costs law, including costs in professional negligence claims. ARC Costs can assist in maximising your costs recovery in any costs case, or in contesting any costs claim against you or your business.
Costs in professional negligence claims can often be high due to the complexities which can arise in the cases. Costs which you are entitled to recover may also be further complicated by the facts of the case and the conduct by the parties to the claim. It is, therefore, essential to obtain specialist costs advice to assist in recovering your costs of professional negligence claims.
At ARC Costs we deal with preparing a Bill of Costs on your behalf, ensuring this is accurate and served effectively to maximise recovery. We can assist in issuing costs only Part 8 proceedings where necessary and dealing with any contentions which the paying party may raise on your costs by way of Points of Dispute. We can also assist with negotiations between the parties to ensure settlement on costs can be reached as early as possible.
Alternatively, we can assist in acting on behalf of the paying party in contesting costs which have been submitted by the receiving part by preparing detailed Points of Dispute.
Should settlement not be possible, we can assist either party in Detailed Assessment and can represent you at the relevant hearing.
If you require our assistance or wish to discuss your query, please do not hesitate to contact us on 01204 397302, or email us at firstname.lastname@example.org.