COST BITES 448: PART 36 AND FIXED COSTS: “VERY LATE” ACCEPTANCE OF A DEFENDANT’S OFFER LEADS TO THE CLAIMANT RECOVERING NO COSTS AT ALL
It was probably inevitable that there would be difficulties in the construction of fixed costs and the interplay with Part 36. We have such a case here. The Court had to consider the implications of the precise wording of fixed…
COST BITES 447: “THESE SUMS ARE ASTONISHING”: COURT OF APPEAL CONSIDERS £2 MILLION BRIEF FEE AND COSTS OF A FOUR-DAY APPEAL (AND IS NOT TOO IMPRESSED)
It is rare for the Court of Appeal to get involved in the minutiae of costs. We have an example here and the Court is, to say the least, forthright in its views. Leading Counsel’s brief fee of £2 million…
WILL AN INSURER PAY FOR THIS? A CRUCIAL QUESTION FOR MOST PERSONAL INJURY AND CLINICAL NEGLIGENCE CLAIMANTS: WEBINAR 30th OCTOBER 2026
The post earlier today about the difficulties in enforcing a judgment in a clinical negligence case against an individual doctor highlights the problems that arise if a defendant is not insured. The issue of when an insurer is liable to…
COST BITES 466: COURT OF APPEAL UPHOLDS ABILITY TO AWARD INTEREST ON COSTS TO LITIGANTS CONDUCTING LITIGATION ON A CFA
Here we have a case where the Court of Appeal upheld a decision to award pre-judgment interest on costs. Interest can be awarded even though the action is being conducted on a Conditional Fee Agreement. This is an important point…
BACK TO BASICS MONDAY: THE WISDOM OF MAKING A PROMPT AND REALISTIC PART 36 OFFER IN AN ASSESSMENT ON COSTS: 10 KEY POINTS WITH USEFUL LINKS
A few recent posts have been a (wholly subtle) attempt to promote the forthcoming webinar and book “The Paying Party’s Manual”. This is part of that well-disguised approach. We are looking at the wisdom in making an early and realistic…
COST BITES 465 : WITHOUT PREJUDICE COSTS BREAKDOWNS REMAINED PRIVILEGED: A LOWER BILL DID NOT ESTABLISH “UNAMBIGUOUS IMPROPRIETY”
This judgment given today highlights some dangers in sending “without prejudice” bills of costs at an early stage. The paying party can (understandably) be suspicious when a later bill comes at a lower figure. The reasons for this need not…
COST BITES 463: HOW SHOULD A COSTS ORDER BE PHRASED? MAKING SURE THAT IT DOES NOT JUST OVER “COUNSEL STANDING ON THEIR FEET DURING THE APPLICATION”
Here we have an unusual disagreement about how an order for costs should be phrased. The judge made it clear that the order should make it clear that it was not just covering advocacy. “I prefer the Bourlakovas’ formulation. It…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT… INTERIM ORDERS FOR COSTS: 10 KEY POINTS AND USEFUL LINKS
We have looked at the issue of interim costs twice over the past few days. It is an important element of litigation. An order for costs does not put money in the receiving party’s bank account. Detailed assessment may take…
COST BITES 462: A “TOP-HEAVY” LEGAL TEAM AND £929,000 CLAIMED IN COSTS: COURT ORDERS A PAYMENT ON ACCOUNT OF LESS THAN 50%: THE “RULE OF THUMB” OF 60% IS NO ALWAYS APPROPRIATE
We are returning to the case we looked at yesterday. Having determined that it was appropriate for the court to order the applicants to pay the respondents’ costs of the application the judge then considered the question of the amount…
COST BITES 461: “LOSING PARTY” SHOULD PAY COSTS AT THE END OF HEARING, DESPITE HAVING BEEN GRANTED PERMISSION TO APPEAL
This case emphasises the importance of the “pay as you go” principle in civil litigation. The applicants had failed at an interlocutory application. They were equally unsuccessful in their attempts to persuade the judge that they should not pay the…
BACK TO BASICS MONDAY: WHAT DO YOU ADVISE A CLIENT WHO HAS A COSTS ORDER AGAINST THEM: THE IMMEDIATE AFTERMATH: 10 KEY POINTS AND USEFUL LINKS
This posts looks at the lawyer’s role immediately after the court has made an order that your client must pay the other side’s costs. The client may be disappointed, angry or astonished at the result. There may be a strong…
COSTS BITES 461: WINNING THE CASE BUT LOSING THE MAIN BATTLE MEANS CLAIMANT RECOVERS 85% OF COSTS: DEFENDANT CANNOT SEEK THE ADVANTAGES OF PART 36 WITHOUT MAKING A PART 36 OFFER
It is wise for a party that is likely to be on the losing side of a case to make a Part 36 offer. A court is unlikely to have much sympathy for a litigant that has failed to protect…
COST BITES 460: THE FACT THAT A DEFENDANT LOST ON A COUNTERCLAIM DID NOT PREVENT THE COURT FROM ORDERING THE CLAIMANT TO PAY 70% OF THEIR COSTS: ORDER UPHELD ON APPEAL TO THE HIGH COURT
There are certain cases that litigators should keep in their cabinets to show to clients who are overkeen to litigate. This is one of them. The parties were arguing over a boundary line, with one of the issues being whether…
THE DISCLOSURE OF PART 36 OFFERS: IS THE DATE OF AN OFFER PART OF ITS “TERMS”? A QUESTION THAT HAS SOME PRACTICAL CONSEQUENCES: THE HIGH COURT CONSIDERS THE ISSUE
The rules allow the parties to disclose the existence of a Part 36 offer after a split trial. However the judge cannot be told the “terms” of the offer. Here the court considered the interesting (and important) issue of whether…
COST BITES 459 : A DEFENDANT TO COMMITTAL PROCEEDINGS CAN RECOVER COSTS OVER AND ABOVE CRIMINAL LEGAL AID RATES: COURT OF APPEAL DECISION
This is an important decision for those who represent respondents to committal proceedings. The Court of Appeal have overturned previous decisions that states that a successful respondent’s costs are confined to legal aid rates. They are, instead, entitled to recover…
COST BITES 458 : SHOULD A COURT ORDER A THIRD PARTY TO PAY THE COSTS? CAN (OR SHOULD) AN ORDER BE MADE FOR PAYMENT BY BITCOIN? THE COURT OF APPEAL HAS ITS DOUBTS…
Here we look at specific issues as to the payment of costs arising from cryptocurrency, Bitcoin in particular. Firstly the costs order made had the effect of ordering a party (who had not been ordered to pay costs) to, in…
PROPORTIONALITY AND LITIGATION (4): 10 POINTS TO WATCH OUT FOR ON THE ASSESSMENT OF COSTS TOGETHER WITH USEFUL LINKS
The very word “proportionality” still plays a major part in many cost assessments. The Points of Dispute state, often vehemently, that the costs are wholly disproportional. The Points of Reply respond, usually twice as vehemently, that proportionality is not just…
THE PAYING PARTY’S MANUAL: HOW TO REDUCE YOUR OWN CLIENT’S LIABILITY TO PAY THEIR OPPONENT’S COSTS: THE WEBINAR, THE BOOK AND THE TOOLKIT
There is surprisingly little practical guidance for litigators on how to reduce their own client’s liability to pay their opponent’s costs. This webinar, book and toolkit aims to help fill that gap. Starting from the premise that potential liability for…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT – GUIDANCE FOR A PAYING PARTY: A 10 POINT CHECKLIST, USEFUL LINKS AND THE DISCOUNT CODE FOR THE WEBINAR AND BOOK THE PAYING PARTY’S MANUAL
Here we look at those points and posts of particular interest to those representing a paying party. It is the forerunner to the webinar on the 12th November and the accompanying book “The Paying Party’s Handbook”. At the foot of…
COST BITES 457: COURT REFUSES APPLICATION TO MAKE LEGAL INSURERS SOLELY RESPONSIBLE FOR THE COSTS OF ASSESSMENT: (WHY COSTS LAWYERS HAVE TO KNOW THE LAW OF EVIDENCE – PARTICULARLY IF THEY ARE GOING TO MAKE ALLEGATIONS RELATING TO CONDUCT)
Here we look at a highly unusual allegation. Two of the claimants (the paying parties) and the defendants sought an order making their ATE insurer solely responsible for the costs of the assessment process. This application was supported by “evidence”…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT … PLEADING DAMAGES? A 10 POINT CHECKLIST TO AVOID YOUR CLIENTS (AND YOU…) GETTING INTO DIFFICULTIES…
The two posts earlier today on the judgment in Amaal Ventures Ltd v Eros Ltd looked at problems arising because of a failure to plead damages. This is not an new issue. Here we use the CLB archive to provide…
PROPORTIONALITY AND LITIGATION (3): WHAT DO YOU DO IF YOUR OPPONENT IS BEHAVING DISPROPORTIONATELY?
The previous post in this series looked at cases where the parties had “drifted” into disproportionate conduct and costs. However we should not be naive. Some litigants, and some litigators, will expressly threaten to run up costs as a litigation…
PROPORTIONALITY AND LITIGATION (2): WHERE DOES IT ALL START TO GO WRONG? (AND HOW DO YOU AVOID IT?)
This short series on proportionality is aimed, primarily, at protecting the client and the lawyer. A client may be exposed to excessive costs and the lawyers get blamed for this. There are (it is to be hoped) few cases where…
PROPORTIONALITY IN LITIGATION (1): A TEN POINT GUIDE FOR CIVIL LITIGATORS: A REVIEW OF CASE LAW AND POSTS OVER THE PAST 13 YEARS
Yesterday we looked at a judgment in the Court of Appeal where the sum at stake was £25. The court was, shall we say, “sceptical” about whether this litigation was for the benefit of the actual client. For a while…
COST BITES 455: COURT OF APPEAL DECISION TODAY ON WHETHER A CLIENT IS ENTITLED TO RAISE PART 18 QUESTIONS AS TO WHETHER THE SOLICITOR OBTAINED COMMISSION ON AN ATE PREMIUM
In this judgment today the Court of Appeal held that it is not appropriate for a former client to raise Part 18 questions as to whether their former solicitors had received a commission on an ATE policy. This is important…
COST BITES 454 : INTEREST ON COSTS: A SERIES OF CHECKLISTS AND USEFUL LINKS FOR THE PAYING PARTY
Last week we looked at a recent judgment which concerned interest on costs. That post also contained a series of checklists relating to interest on costs for the receiving party. I promised corresponding checklists for the paying party. There are…
COST BITES 453: YOU ARE NOT GETTING A SUMMARY ASSESSMENT JUST BECAUSE YOU ALL WANT ONE: THE BROADBRUSH IS TOO BLUNT A TOOL FOR THIS PROCESS
We are returning to the previous case to look at the judgment in relation to the judge’s comments on the method of assessment. All the parties favoured a summary assessment, the Senior Costs Judge found that this was not appropriate….
COST BITES 452: WHAT COSTS ORDER SHOULD THE COURT MAKE FOLLOWING THE DECISION IN THE MEDICAL REPORTING CASE? “WE ALL WON – SAY THE PARTIES” AND “WE’RE ALL APPEALING ANYWAY…”
We have the latest chapter in the ongoing saga of whether a receiving party needs to provide a breakdown of the costs of a medical report. Fittingly (and unsurprisingly) this judgment is about costs. It is an unusual case in…
COST BITES 451 : INTEREST ON COSTS A RECENT JUDGMENT, A REVIEW OF POSTS AND USEFUL CHECKLISTS FOR THE RECEIVING PARTY
Here we look at a recent decision on interest on costs. It also provides an opportunity to review previous posts on the topic and use them to look at a checklist on these issues for the receiving party. “I was…
COST BITES 450: IF THE CLAIMANT SUCCEEDED ON A CASE THAT WAS NOT PLEADED SHOULD IT THEN PAY THE DEFENDANTS’ COSTS?
Here the “Cost Bites” series interacts with the “Present Importance of Pleadings”. The judge considered issues relating to liability to pay costs when the claimant had succeeded, but on a basis that was not pleaded. In these circumstances should the…
COST BITES 449 : YOUR CASE AGAINST ME WAS DISMISSED BECAUSE YOU HAD NO PROPER CAUSE OF ACTION: SHOULD I GET 100% OF MY COSTS ON THE INDEMNITY BASIS? (LIFE IS MORE NUANCED THAN THIS…)
Here we look at a case where a defendant was successful in having an action against him struck out because there was no viable cause of action. The questions addressed here were – should the claimant recover 100% of his…
CAN THE HIGH COURT ISSUE AN INJUNCTION PREVENTING THE ISSUE OF PROCEEDINGS IN THE COUNTY COURT? A QUESTION WITH A ONE WORD ANSWER…
Can the court grant an injunction to prevent the issue of proceedings in this jurisdiction? That was the question considered here. The answer was clear, and the judgment brief… “in my judgment, the court does not have jurisdiction to grant…
COST BITES 448: THE FINANCIAL CONDUCT AUTHORITY HAS TO PAY THE FULL COSTS OF LOSING AN ACTION: ARGUMENTS ABOUT “CHILLING EFFECT” WERE NOT ESTABLISHED AND NOT EVIDENCED IN ANY EVENT
Here we look at some unusual arguments from an unsuccessful defendant as to why it should not be liable to pay the claimants’ costs in full. In the end the defendant succeeded in reducing the costs of a single claimant…
COST BITES 447 : SHOULD A DEFENDANT’S DERAILMENT OF AN EARLY NEUTRAL EVALUATION LEAD TO INDEMNITY COSTS ORDERS BEING MADE AGAINST IT?
Here we have an interesting judgment on the interaction between costs, pleadings and the court’s encouragement of an ADR Process. The claimant argued that a defendant’s conduct lead to the adjournment, and eventual abandonment of an Early Neutral Evaluation (“ENE”)….
COST BITES 446 : SHOULD THE COURT HAVE MADE A NON-PARTY COSTS ORDER? SHOULD THE APPELLANT HAVE BEEN CROSS-EXAMINED AND WAS THE COURT BOUND TO ACCEPT HIS EVIDENCE?
This is a case about non-party costs orders that has some unusual elements. Firstly an argument that since the appellant was not cross-examined the court was bound to accept his assertions that he had no direct financial interest in the…
COST BITES 445: USEFUL CHECKLISTS (2): A CHECKLIST ON COSTS IN HOUSING DISREPAIR CASES (FOR DEFENDANTS) TOGETHER WITH SOME USEFUL LINKS
Yesterday we looked at a checklist on costs for claimants in housing disrepair cases. In the interest of balance I said the next in the series would be aimed at defendants. Here is the checklist as promised. It encourages litigators…
COST BITES 445: “AN APPALLING WASTE OF RESOURCES FOR WHICH BOTH PARTIES AND THEIR REPRESENTATIVES BEAR RESPONSIBILITY”: THE FAMILY COURT IS NOT BEST PLEASED…
Here we take a look at a judgment in a family case which contains an exhortation about running up unnecessary costs. This is normally a regime in which inter partes costs are not awarded. The conduct in this case led…
COST BITES 443: USEFUL CHECKLISTS: A CHECKLIST ON COSTS IN HOUSING DISREPAIR CASES (FOR CLAIMANTS)
The review on the book on Costs in Housing Disrepair cases last week led me to consider a series of checklists on costs. I am starting with costs for claimant housing lawyers. However this site is even handed, the next…
BOOK REVIEW: “A PRACTICAL GUIDE TO COSTS IN HOUSING DISREPAIR CASES”: MAY HELP FIX GAPS IN ROOFS AND CERTAINLY FILLS A GAP IN THE MARKET…
Costs in housing disrepair costs have become somewhat of a battleground. This battle starts at the allocation stage and re-commences on assessment. This has become more acute because housing disrepair cases are not subject to the fixed costs regime. This…
THROWBACK FRIDAY: “THE RISK OF INDEMNITY COSTS: WHAT ARE YOU GOING TO TELL YOUR CLIENT?” (AUGUST 2014)
We have had four posts this month along about costs being awarded on the indemnity basis. Indemnity costs have been awarded against claimants, (in a very high profile case), against defendants, and against a solicitor personally. The consequences of an…
COST BITES 442: AN IMPORTANT POINT TO WATCH WHEN SEEKING TO RECOVER COSTS ON A COUNTERCLAIM
Here we look at an important point in relation to the costs of a counterclaim. If a party is awarded the costs of the counterclaim those costs may be very narrowly confined. In this case the defendant attempted to recover…
COST BITES 441: NO ORDER FOR COSTS – EVEN THOUGH THE APPLICANT WAS SUCCESSFUL: THERE ARE MANY LESSONS TO LEARN HERE…
Last week this blog had a fairly detailed review of those circumstances which often lead to no order for costs being made. We have another example here. The applicant had succeeded in the application it had made, however the judge…
COST BITES 440: WHY INDEMNITY COSTS WERE ORDERED A LOOK AT THE CLAIMANTS’ PLEADED CASE: FIRSTLY IT WAS PLEADED TOO WIDELY, SECONDLY THERE WERE THEN ATTEMPTS TO PUT THE CASE OUTSIDE THE PLEADINGS
We look again at the award of indemnity costs in the Associated Newspaper case. The reasons for this were manifold. However there were two important factors relating to the statements of case. Firstly the case was pleaded far too widely;…
COST BITES 439 : IS THE EXISTENCE OF A COSTS BUDGET A REASON NOT TO AWARD INDEMNITY COSTS ?
It is rare for an order about indemnity costs to make the headlines of the national press and media. We are looking at a case which has had a major amount of publicity, not least because of the celebrity status…
COST BITES 438 : CLAIMANT’S UNTENABLE ARGUMENTS LEADS TO REDUCTION IN COSTS RECOVERED: HOURLY RATES FAR TOO HIGH, EVEN WHEN THE CLAIM WAS “ONLY” FOR £9 MILLION
This decision as to costs gives rise to two interesting issues. Firstly the claimant’s costs of an injunction application were reduced substantially because assertions were put forward on a basis that were “unsustainable” and which should never have been pursued,…
COST BITES 437: SHOULD THE DEFENDANT’S CONDUCT OF THE ACTION LEAD TO INDEMNITY COSTS BEING AWARDED? YES IT SHOULD…
In this case the judge decided that the defendant’s conduct of the litigation warranted an award of indemnity costs being made. There is an interesting consideration of the case law relating to when costs will be reduced because of lack…
A WIDOW CANNOT BRING AN ACTION UNDER THE FATAL ACCIDENTS ACT WHERE HER HUSBAND SETTLED THE PERSONAL INJURY ACTION AGAINST A CONCURRENT TORTFEASOR IN HIS LIFETIME
This case emphasises a long existing principle that a second action cannot be brought if a claimant, now deceased, has settled proceedings in their lifetime. This principle extends to concurrent tortfeasors. There are also important observations outside the realm of…
COST BITES 436: THE DEFENDANT FAILED TO BEAT THE CLAIMANT’S PART 36 OFFER: WAS IT UNJUST FOR THE USUAL CONSEQUENCES TO APPLY? THE IMPORTANCE OF INTEREST
Here we look at a judgment where the court considered an argument that the claimant had not beaten its own Part 36 offer. The judge held that the defendant’s argument fell at the first post because it failed to take…
COST BITES 435: ANOTHER APPLICATION TO REVISE A COSTS BUDGET (DURING A TRIAL): WITH A DIFFERENT RESULT: SOME INTERESTING COMMENTS ON CONDUCT ALONG THE WAY…
We have had a number of cases relating to amending costs budgets recently. This one has a different result. The need to revise the budget arose from the judge’s decision that there should be a separate hearing on damages. This,…
BACK TO BASICS MONDAY: LITIGATORS HAVE TO WARN THEIR CLIENTS THAT SOMETIMES A COURT MAKES NO ORDER FOR COSTS AT ALL: THE PERILS IF YOU DON’T
This post obviously follows on from the post earlier today where the judge made no award for costs after a trial. Neither side had “won” and, in any event, the amount spent in pursuit of the claim was disproportional. This…
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