COST BITES 107: A NON-PARTY COSTS ORDER SHOULD NOT BE MADE AGAINST A SOLICITOR REPRESENTING A CLAIM ON A CFA BASIS: SEEKING A FINANCIAL BENEFIT DID NOT MEAN THEY WERE ACTING OUTSIDE THEIR ROLE AS SOLICITOR
I am grateful to Sam Hayman from Bolt Burdon Kemp for sending me a copy of the decision of Mr Justice Freedman in The Scout Association -v- Bolt Burdon Kemp [2023] EWHC 2575 (KB). On appeal Freedman J upheld the…
PART 36 APPLIES TO CLAIMS THAT ARE NOT ABOUT MONEY: SILENCE DID NOT INDICATE A REFUSAL TO ENTER ADR: PART 36 CONSEQUENCES APPLIED
In Jones v Tracey & Ors (Re Costs) [2023] EWHC 2256 (Ch) Master Marsh (sitting in retirement) found that Part 36 applied to cases that were not about money. It was held that the fact that the action would be…
RUDE OR “ROBUST” CORRESPONDENCE? GUIDANCE ON AVOIDING INFLAMMATORY LANGUAGE OR BEING GRATUIOUSLY OFFENSIVE
This is a repeat of a post first written in August 2017. At that time the Solicitors Regulatory Authority had just issued on “Offensive communications” (the link is to an updated version from 2019). It gave me a chance to…
SUCCESSFUL CLAIMANT’S PART 36 OFFER: “PART OF THE POINT OF THE PENAL CONSEQUENCES OF PART 36 IS TO PREVENT THE SORT OF COSTS ARGUMENT THAT MIGHT OTHERWISE BE MADE”
In Green v White Lantern Film (Britannica) Ltd [2023] EWHC 1391 (Ch) Mr Justice Michael Green considered arguments as to conducts and costs in a case where the claimant had beaten her own Part 36 offer. The normal Part 36…
CLAIMANT’S PART 36 OFFER WAS FOR 96% OF THE CLAIM: IT WAS HELD UNJUST FOR NORMAL PART 36 CONSEQUENCES TO APPLY
In Yieldpoint Stable Value Fund, LP v Kimura Commodity Trade Finance Fund Ltd [2023] EWHC 1512 (Comm) Stephen Houseman KC (sitting as a High Court Judge) found that it was not unjust to disallow the normal Part 36 consequences in…
THE KING’S BENCH DIVISION GUIDE: THE NEW BITS (1): LAWYERS STAY OUT OF THE MEETING OF EXPERTS
A new edition of the King’s Bench Division Guide was published last week (although it is dated March 2023). I will take a short look at the major changes. Firstly looking at a new passage in relation to the instruction…
COSTS BITES 80: WHERE THE BILL OF COSTS WAS FOR IMAGINARY WORK AND “JUST FICTION”: ASSESSMENT SHINES A CLEAR LIGHT OF DEFICIENCES IN BILLS: AT SUBSTANTIAL COST TO THE CLAIMANTS’ SOLICITOR
The judgment of Senior Costs Judge Gordon-Saker in Ikin -v- Shawbrook Bank Limited [2023] EWHC 1075 (SCCO) contains many, many lessons of importance for those drafting and those signing bills of costs. The judge found that there were manifold failures…
COST BITES 76: COURT DID NOT MAKE AN ORDER FOR COSTS AGAINST HEALTH AUTHORITY IN A WELFARE CASE: THERE ARE OTHER WAYS A COURT CAN SHOW ITS DISAPPROVAL OF A PARTY’S CONDUCT OF A CASE
In West Hertfordshire Hospitals NHS Trust v AX (Rev1) [2023] EWCOP 11 Vikram Sachdeva KC (sitting as a High Court Judge) refused an application for costs against a health authority. The judgment contains a review of the rules relating to…
COST BITES 75: LIABILITY TO COSTS: RETROSPECTIVE ATTEMPT TO VARY COSTS BUDGET: WITHOUT PREJUDICE OFFER AFFECTS LIABILITY TO COSTS MADE PRIOR TO THAT OFFER
We looked at the judgment of HHJ Hodge QC (sitting as a High Court judge) in Wigan Borough Council v Scullindale Global Ltd & Ors [2021] EWHC 779 (Ch) in an earlier post on Proving Things. There is a subsequent…
COSTS BITES 73: IN A WASTED COSTS APPLICATION THE APPLICANTS FAILED TO GET PAST THE FIRST STAGE
In King & Ors v Stiefel & Ors [2023] EWHC 453 (Comm) Mr Justice Jacobs refused to allow a wasted costs application to pass stage one of the process. The issues were too complex and the costs to high, to…
PERSONAL PEJORATIVE REMARKS IN WITNESS STATEMENTS DO NOT HELP: RECENT DECISIONS AND A REVIEW OF THE CASES
Some recent comments by HHJ Edward Hess in TM -V- KM [2022] EWFC 155 as to the language used in witness statements gives me a chance to reprise the guidance as to the lack of wisdom of using intemperate language…
WHEN ONLINE DISCUSSIONS THAT YOU NEVER THOUGHT WOULD BE MADE PUBLIC – GET SEEN: LAWYER’S TALES: “CHURN THAT BILL BABY”
Recent events have shown that even the most prominent people in public office can put material on social media sites that they assume will never be seen, and come to regret it. However politicians are not the only ones. This…
APPLICATION FOR NON-PARTY COSTS ORDER DISMISSED: THIS TIGER HAD NO TEETH…
There have been a number of cases relating to non-party costs orders. The claimant’s application for such an order failed in Paper Mache Tiger Ltd v Lee Mathews Workroom PTY Ltd [2023] EWHC 338 (Comm). John Kimbell KC, sitting as…
THE JUDGE INTERRUPTED A BIT TOO MUCH… COURT OF APPEAL JUDGMENT
In Keane v Sargen & Ors [2023] EWCA Civ 141 the Court of Appeal commented that interruptions of the cross examination of a witness by the trial judge had not been helpful and, indeed, inappropriate. “I add a few words…
COST BITES 59: COSTS AGAINST THE CLAIMANT EVEN THOUGH THE DEFENDANTS’ APPLICATION WAS UNSUCCESSFUL: HOWEVER THE JUDGE FELT TOTALLY UNABLE TO RELY ON A COSTS SCHEDULE
Another example of costs not following the event can be seen in the judgment of Mrs Justice Smith in The Financial Conduct Authority v Papadimitrakopoulos & Anor [2022] EWHC 3048 (Ch). The judgment also raises other issues in relation to…
DELAY BY THE CLAIMANT WAS NOT “WAREHOUSING” AND DID NOT LEAD TO A STRIKE OUT: A PARTY ALLEGING DELAY WAS ABUSE MUST ACT PROMPTLY
There are several significant aspects to the judgment of Mr Justice Eyre in Morgan Sindall Construction and Infrastructure Ltd v Capita Property and Infrastructure (Structures) Ltd & Anor [2023] EWHC 166 (TCC). Firstly the distinction between proceedings issued for the…
CLAIMANT FAILS IN AN APPLICATION FOR WASTED COSTS AGAINST HIS OWN LAWYERS: HOWEVER THERE IS AN IMPORTANT LESSON HERE
In Costa v Dissociadid Ltd & Anor [2023] EWHC 49 (IPEC) the claimant was unsuccessful in an application for wasted costs against his own lawyers. However the judgment tells us more than that. It is an object lesson in the…
ANOTHER CASE OF DISCLOSURE OF AN EMBARGOED COURT OF APPEAL JUDGMENT: LIABILITY FOR CONTEMPT MAY BE STRICT, BUT IN THIS CASE NEED GO NO FURTHER
In Interdigital Technology Corporation & Ors v Lenovo Group Ltd & Ors [2023] EWCA Civ 57 the Court of Appeal considered another case where the results a draft embargoed judgment was disclosed (although not the judgment itself). Liability for the…
COSTS REDUCED BY 70% BECAUSE OF MISCONDUCT IN ASSESSMENT (AFTER BEING REDUCED BY 95% DURING THE ASSESSMENT): CLAIMANT’S APPLICATION FOR PERMISSION TO APPEAL REFUSED
The judgment of Mr Justice Murray in AB v Secretary of State for Justice [2023] EWHC 72 (KB) is part of an extraordinary saga in relation to a costs assessment. Costs had been reduced by 95% on assessment and reduced…
EVERYONE ELSE IN THE TRAIN CARRIAGE CAN HEAR YOU KNOW: THE DANGERS OF WORKING (AND TALKING) ON THE TRAIN
Twice in the past two days lawyers have tweeted experiences of people sitting in a train carriage and openly discussing ongoing cases. “What offers are we going to make”, on both occasions. One tweeter observed that he knew the subject…
COST BITES 48: WHERE THE ONLY RELEVANCE OF THE BUDGET IS TO SET AN UPPER LIMIT ON RECOVERABLE COSTS: THE ESCALATING COSTS OF “METAPHORICAL WARFARE”
We are returning to the judgment of Costs Judge Leonard in Reed v Woodward Property Developments Ltd & Anor [2023] EWHC 36 (SCCO) to look at two other aspects of the case. The first relates to the relevance of the costs…
A CAUTIONARY TALE FOR LITIGANTS: CLAIMANT ORDERED TO PAY £17,500 IN COSTS IN A SMALL CLAIMS TRACK CASE
I am grateful to barrister Ashley Blood-Halvorsen for bringing my attention to the judgment of District Judge Lumb in Reed -v- Boswell (06/12/2022) a copy of which is available here. It is a rare example of costs being awarded against…
NON-PARTY COSTS ORDER AGAINST EXPERT WITNESS SET ASIDE ON APPEAL: THE FACT THAT AN EXPERT’S CONCLUSIONS CAN BE CRITICISED DOES NOT AMOUNT TO A FLAGRANT DISREGARD OF THEIR DUTY
I am grateful to barrister Nadia Whittaker for sending me a copy of the judgment of Mr Justice Sweeting in Robinson -v- Liverpool Hospitals NHS Trust and Mercier [2023] EWHC 21 (KB), a copy of the judgment is available here. …
COST BITES 42: INDEMNITY COSTS, CONDUCT AND CORRECTING MISTAKES: PROVIDING SUFFICIENT MATERIAL ON ASSESSMENT IS ESSENTIAL
In Deutsche Bank AG v Sebastian Holdings Inc [2023] EWHC 9 (SCCO) Senior Costs Judge Gordon-Saker held that a claimant was only entitled to 70% of its costs of assessment. There were difficulties in the way that the claimant had…
ANOTHER POTENTIAL BREACH OF AN EMBARGO ON A JUDGMENT: JUDGE DECIDES TO TAKE FURTHER ACTION TO INVESTIGATE
The judgment in Wright v McCormack [2022] EWHC 3343 (KB) shows a variation on the risks of disclosing the contents of an embargoed judgment. The claimant did not disclose the full judgment but various messages on social media could be…
APPLICATION FOR INDEMNITY COSTS CONSIDERED BUT NOT AWARDED: STILL A SIGNIFICANT LESSON FOR LITIGATORS (AND LITIGANTS) HERE
In Tejani v Fitzroy Place Residential Ltd & Ors (Re Costs and Interest) [2022] EWHC 3153 (TCC) Ms Vernonique Buehrlen K.C. (sitting as a High Court Judge) declined an application that an unsuccessful claimant pay the defendants’ costs on the…
PART 36: CONDUCT & REDUCTION OF CLAIMANT’S COSTS: A SETTLEMENT STRATEGY THAT WAS “COMPLETELY UNREALISTIC”
In Moradi v The Home Office (Costs) [2022] EWHC 3125 (KB) HHJ Tindal (sitting as a High Court Judge) considered the appropriate costs consequences where a case settled on the eve of trial. The defendant made a Part 36 offer…
COST BITES 32 : NON-PARTY COSTS ORDERS AGAINST DIRECTORS: A WORKING EXAMPLE
In OCM Maritime Nile Llc & Anor v Courage Shipping Co & Ors [2022] EWHC 2696 (Comm) Sir Andrew Smith considered, and applied, the principles relating to non-party costs orders against directors. “I infer that the defence of the claims…
LAWYERS SHOULD NOT BE RUDE TO COURT STAFF (INDEED, NOT RUDE TO ANYONE): A WORRYING REPORT
The Oxford Mail carries a story on the 4th November which is highly disturbing. The headline says it all “Judge adjourns case for a week after reports of ‘barristers abusing court staff'” This, if established, is appalling behaviour. Rude, abhorrent…
COST BITES 31: ASKING THE JUDGE TO DETERMINE COSTS WHEN THE PARTIES HAVE SETTLED ISSUES: YOU MAY NOT GET WHAT YOU WANT…
In Bilta (UK) Ltd & Ors v SVS Securities PLC & Ors (Consequential Matters) [2022] EWHC 1431 (Ch) Mr Justice Marcus Smith considered the issues that arise when the parties have settled a large number of issues in an action,…
COST BITES 28: APPEALING AGAINST AN ORDER FOR COSTS: THE MAJOR HURDLE INVOLVED AND THE RELEVANCE OF A NON-PART 36 OFFER TO SETTLE
In TMO Renewables Ltd v Yeo & Ors [2022] EWCA Civ 1409 the Court of Appeal dismissed an appeal against an order for costs. The case is a reminder of the difficulty in appealing a decision as to costs. Further…
COST BITES 25: DEFENDANTS’ CONDUCT LEADS TO COSTS BEING AWARD ON THE INDEMNITY BASIS
Those who write “robust” letters of response to a letter before action may benefit from reading the judgment of Mr Justice Andrew Baker in Pisante & Ors v Logothetis & Ors [2022] EWHC 2575 (Comm). The judge held that costs…
COST BITES 22: CLAIMANT’S ARGUMENTS TO AVOID PAYING INDEMNITY COSTS FAIL TO FLY
In Optimares SpA v Qatar Airways Group QCSC [2022] EWHC 2507 (Comm) Mr Justice Calver ordered the unsuccessful claimant to pay the defendant’s costs on an indemnity basis. The fact that the defendant could have asked for a split trial…
COST BITES 20: COURT MAKES A THIRD PARTY COSTS ORDER ON THE BASIS OF MISCONDUCT OF LITIGATION: PARTIES GET THEIR JUST DESSERTS
In Ventures Food Ltd v Little Dessert Shop Limited [2022] EWHC 2437 (Ch) HHJ Richard Williams (sitting as a High Court judge) made a third party costs order on the basis of litigation misconduct by those who controlled a limited…
AN EXPERT WHO TENDED TOWARDS BEING AN ADVOCATE: YOU SAID SOMETHING DIFFERENT IN ANOTHER CASE: THE NEED FOR A MEASURED RESPONSE
It may be indicative that there are such a large number of cases where judges have criticised experts for veering towards advocacy that I sometimes hesitate as to whether they merit writing about. However such a tendency was noted by…
COST BITES 7: INDEMNITY COSTS WHEN A CLAIMANT HAS TRIED TO HAVE A SECOND BITE OF THE LITIGATION CHERRY
In Tinkler v Esken Ltd (Costs) [2022] EWHC 1802 (Ch) Mr Justice Leech ordered indemnity costs against a claimant who, in essence, attempted to relitigate a case he had lost on previously. “A principal difference between an order for…
RESPONDENTS TO AN APPLICATION FOR PERMISSION TO APPEAL: YOU SHOULD HAVE SIMPLY WRITTEN A LETTER AND SAVED YOURSELVES £67,000
In over three decades of writing about civil procedure I cannot recall any cases about costs following a permission to appeal hearing. There are now two cases this week. In Kerseviciene v Quadri & Anor (Costs) [2022] EWHC 1757 (QB)…
WASTED COSTS ORDER MADE AGAINST SOLICITORS WHO DID NOT ENSURE THAT THEY HAD APPROPRIATE AUTHORITY TO ACT ON BEHALF OF A COMPANY
In Rushbrooke UK Ltd v 4 Designs Concept Ltd [2022] EWHC 1687 (Ch) HHJ Paul Matthews (sitting as a High Court Judge) made a wasted costs order against a firm of solicitors who had acted for a limited company without…
SOLICITOR AND OWN CLIENT BILLS AND CONDUCT: CPR 44.11 DOES NOT APPLY: REDUCTION OF 75% OVERTURNED ON APPEAL
In John Poyser & Co Ltd -v- Spencer [2022] EWHC 1678 (QB) Mr Justice Morris (sitting with Senior Costs Judge Gordon-Saker as an assessor) overturned a finding that CPR 44.11 applies to solicitor and own client assessments. The practical result…
DIRE ISSUES ARISE WHEN AN EXPERT FAILS TO COMPLY WITH THEIR OBLIGATIONS IN RELATION TO THE JOINT MEETING: FULL TRANSCRIPT NOW AVAILABLE
I have written before about the decision of Senior Master Fontaine in Andrews & Ors v Kronospan Ltd [2022] EWHC 479 (QB) where the claimants permission to rely on an expert witness was withdrawn because of conduct in relation to…
THE COSTS JUDGE OVER YOUR SHOULDER 2: THERE WAS NO MISCONDUCT BY THE CLAIMANTS, HOWEVER THE COSTS OF ARGUING ABOUT CONDUCT WERE NOT ALLOWED
In Balaj & Ors v Secretary of State for the Home Department [2022] EWHC 1627 (SCCO) Costs Judge James considered, and rejected, the defendant’s arguments that the claimant’s conduct should lead to costs being reduced. However the costs of the…
THE REDUCTION OF A SUCCESSFUL CLAIMANT’S COSTS BECAUSE OF CONDUCT: RELEVANT CALDERBANK OFFERS CONSIDERED: RECOVERABLE COSTS REDUCED BY 15% AND 60%
In Mathieu v Hinds & Anor (No. 2: Costs) [2022] EWHC 1624 (QB) Mrs Justice Hill reduced a claimant’s recoverable costs. An initial 10% reduction was made because of the pursuit of a claim for provisional damages which was not…
ED SHEERAN: SONGWRITING, CONDUCT AND COSTS: THE WINNING PARTY GETS PAID: THE COURT WOULD NOT TURN REALITY ON ITS HEAD
In Sheeran & Ors v Chokri & Ors [2022] EWHC 1528 (Ch) Mr Justice Zacaroli rejected an argument that conduct during an action should lead to costs being disallowed. “This, however, is to turn reality on its head. The…
INDEMNITY COSTS NOT AWARDED WHEN A DEFENDANT REFUSED TO MEDIATE: HIGH COURT DECISION TODAY
In Richards & Anor v Speechly Bircham Llp & Anor (Consequential Matters) [2022] EWHC 1512 (Comm) HHJ Russen (sitting as a High Court judge) refused an application for indemnity costs made on the basis that the defendants had refused mediation….
“IT WAS UNNECESSARY FOR MATTERS TO BE DEALT WITH SO EXPENSIVELY”: ANOTHER COMMENT ON LACK OF FOCUS IN THE COMMERCIAL COURT
For the second time today I am writing about judicial comments on profligacy in the Commercial Court. This time Mr Justice Andrew Baker in Invest Bank PSC v El-Husseini & Ors [2022] EWHC 894 (Comm). “Even in the context…
WHY A SHORT WITNESS STATEMENT CAN BE MORE COSTLY THAN A LONG ONE? CONDUCT, COSTS, PAYMENTS ON ACCOUNT: AN (UNSUCCESSFUL) APPLICATION TO AMEND THAT COULD COST £1 MILLION
In PJSC National Bank Trust & Anor v Mints & Ors [2022] EWHC 1132 (Comm) Mr Justice Foxton considered issues relating to payment of costs after the claimants had been unsuccessful in an application to amend the Particulars of Claim. …
ANOTHER CASE OF A JUDGMENT EMBARGO BEING BREACHED: ALL RECIPIENTS NEED TO UNDERSTAND THE IMPORTANCE AND BREADTH OF THE EMBARGO ON DRAFT JUDGMENTS
In The Public Institution for Social Security v Banque Pictet & Cie SA & Ors [2022] EWCA Civ 368 the Court of Appeal considered yet another case of breach of an embargoed judgment. There was clearly a breach (somewhere) which…
A CLAIMANT WHO OBTAINS AN ORDER UNDER SECTION 33 IS “SUCCESSFUL”: COSTS, CONDUCT AND INTERIM PAYMENTS ON ACCOUNT OF COSTS CONSIDERED
In Aderounmu v Colvin (Costs) [2022] EWHC 637 (QB) Master David Cook made an order for costs in favour of a claimant who had succeeded on a preliminary issue. A discount was made because certain aspects of the case had…
“WHY IS IT FAIR FOR ONE PARTY TO FOLLOW THE RULES, BUT THE OTHER PARTY TO IGNORE THEM”: PAINTING THE OTHER PARTY IN PERJORATIVE TERMS WILL NOT ASSIST YOUR CASE
In WC v HC (Financial Remedies Agreements) [2022] EWFC 22 Mr Justice Peel had some stringent criticisms of the way in which a party attempted to bypass the rules on witness statement length. Also he highlighted the futility of making…
EXPERTS GOING WRONG – AGAIN : THIS TIME IT HAS COST (SOMEONE) £225,000: THE WORK TURNS INTO DUST
It is rare for me to write about judgments from secondary sources. However the judgment of Senior Master Fontaine in Patricia Andrews & Ors v Kronospan Limited [2022] EWHC 479 (QB) is noted in two reliable sources and it is a case…
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