Wisdom & answers burst out of a 1,500 page labour of love
Author: Dr Mark Friston
Publisher: Jordan Publishing
ISBN: 978 1 84661 312 8
Price: £85
This book is not a book. It is a life support system for every litigator. Wisdom and answers burst out of a 1,500 page labour of love. As with the first edition the inside covers are employed to convey yet more know-how. If you cannot quite recall the 2005 band 3 grade D hourly rate then peep at the inside front cover.
My one criticism of the previous edition was not of the author but of those who produced the book. The index was manic with every single reference to a decision faithfully reproduced. This has been corrected and the core references are now clear.
Paradoxically, the one aspect of the new volume which I like and dislike in equal measure are the tables and flowcharts which the author rightly states will excite the costs geeks. Their content is stupendous. The damages based agreement analysis would have impressed Einstein. It is just a shame that the print could not be larger. Justice is not done to these treasures. Again, this is an issue for the publishers and not the artist who created them.
Several profound costs issues have surfaced since the previous edition. Part 36 has generated more disputes and indeed professional negligence claims due to misunderstandings than any other part of the process. Who better than Dr Friston, who appeared in the case of this century, Gibbon v Manchester City Council [2010] EWCA Civ 726, to take the reader by the hand and show them the way through the woods. His chapter is faultless.
I was intrigued as to how the shifting sands of the Jackson report and the Legal Aid, Sentencing and Punishment of Offenders Act 2012 would be dealt with. It would be easy to shirk the topic since reform is not coming until next year. It is dealt with head on. Qualified one-way cost shifting, damages based agreements and the rest of the Rupert reforms are dealt with in detail and, incidentally, in historical context too.
Everyone ought to read page 1403 where the pragmatic approach to active case management and budgeting is distilled in a substantial quotation from an article published in this magazine and written by His Honour Judge Simon Brown QC (see “Costs control").
Events have demonstrated the prescience of the author. He rightly identifies budgeting as at the core of the 2013 reforms, a view shared by Lord Justice Jackson. Since the book went to print we have had the decision in Henry v MGN Ltd [2012] EWHC 90218 (Costs) where the senior costs judge held a party to their approved budgeted costs even though they had spent significantly more and all of their costs were considered proper. What is the point of a budget if one is then going to subsequently ignore it? Another twist, which will be in the next edition of Friston, was on 15 August when HH Judge Simon Brown QC decided in Safetynet Security Ltd v Coppage [2012] EWHC B11 (Mercantile) that a detailed assessment was a futile exercise where the winning claimant came in on the approved budget and so costs were awarded immediately upon conclusion of the trial.
The law of costs does throw up the most esoteric of points and, time after time, you will find your solutions here.
What is refreshing about book and author is the generosity dispensed to the many who have chipped in, although the orchestration is that of Mark Friston alone. He names and praises others in the field not least His Honour Michael Cook who anticipated aeons before anyone else that this branch of law would prove to be worthy of intense scrutiny.
Those who thought that the Jackson reforms would end costs arguments are deluded. On the horizon and unavoidable are intense arguments about the new test of proportionality, the mechanics of qualified one-way costs shifting and, inevitably, issues that not even the talented Dr Friston has yet to identify. Your life support system will be invaluable. Buy it. Read it.
Professor Dominic Regan, City Law School & NLJ columnist
