COST BITES 426: COURT OF APPEAL OVERTURNS DECISION THAT A CLAIMANT IN THE SMALL CLAIMS TRACK SHOULD PAY COSTS AFTER DISCONTINUING: “THE SMALL CLAIMS TRACK IS DESIGNED TO BE DIFFERENT”
This case gives a clear message from the Court of Appeal about the critical importance of the “costs neutral” status of the Small Claims Track. The judgment makes it clear that the starting point is that costs are not recoverable…
COST BITES 425: THE EAT OVERTURNS AN ORDER “ASSESSING” COSTS: THE ET APPLIED THE WRONG TEST IN RELATION TO THE CLAIANT’S MEANS, AND THEN FAILED TO SHOW IT HAD ASSESSED THE COSTS SCHEDULE AT ALL..
Here we are (unusually) looking at a decision of the Employment Appeal Tribunal. The case is unusual because the EAT overturned an order as to costs that had been made by the Employment Tribunal. One of the grounds may be…
COST BITES 424: A CLAIM FOR 30.5 HOURS IN ONE DAY: A SCHEDULE “SO UNRELIABLE IT CANNOT FORM THE BASIS FOR ASSESSMENT”
We have seen many issues in relation to schedules over the years. Here the judge considered a schedule that claimed for one person working more than 24 hours in a day. “Some of those hours are, on the face of…
COST BITES 422: THE ORDER FOR INTERIM COSTS IN THE AMY WINEHOUSE CASE : THE JUDGE WAS UNIMPRESSED WITH CLAIMANT’S “WEAK ARGUMENTS TO BOLSTER HIS ALREADY WEAK COSTS SUBMISSIONS”
We are looking at a case where the trial judge made an order for interim payment on costs following a decision that the claimant should pay the defendants’ costs on the indemnity basis. The judge also considered an issue, raised…
COST BITES 421 : THE AMY WINEHOUSE CASE IS BACK IN COURT: CLAIMANT’S AGGRESSIVE CONDUCT OF A CASE WHERE HE LOST “ON EVERY MATERIAL POINT OF FACT AND LAW” LEADS TO AN ORDER FOR INDEMNITY COSTS TO PAY COSTS ON THE INDEMNITY BASIS
We are looking at another case where the claimant’s conduct of the case has led to costs being awarded on an indemnity basis. The judgment is clear that the claimant deliberately adopted an aggressive case which had no factual merit…
TWO PROCEDURAL POINTS TO WATCH: GIVING REMOTE EVIDENCE FROM ABROAD: SEEKING COSTS BEFORE THE FIRST-TIER TRIBUNAL
Here we are looking “preliminary matters” in a judgment that highlight two procedural issues. One of them is of general relevance, the other more specific but still of significance, particularly for those who are unfamiliar with procedure in the General…
COST BITES 420 : INDEMNITY COSTS AWARDED: “YOU SHOULD HAVE APPLIED TO STRIKE US OUT” OR “YOU COULD HAVE MADE A LOWER OFFER” ARE NOT AN ATTRACTIVE ARGUMENTS IN THIS CONTEXT
Here we look at some interesting arguments when claimants were attempting to avoid an award of indemnity costs. The judge was not impressed by the submission that the defendant should have applied to strike the action out. He was equally…
COST BITES 419: HOW CLAIMING COUNSEL’S FEES ON AN N260 CAN LEAD TO REFERRAL TO THE ATTORNEY GENERAL FOR CONTEMPT OF COURT PROCEEDINGS TO BE CONSIDERED: SIGNATORY BEWARE
Cost Schedules are signed and served every day. This case shows why they must be checked carefully before signature. Here the judge found that a claim made for counsel’s fees on an N260 had been false. This was one of…
COST BITES 418: THE PARTIES SHOULD SHARE THE COSTS OF AN ELECTRONIC PLATFORM (INITIALLY): THIS MULTI-CLAIMANT CASE IS MOST DEFINITELY SUITABLE FOR COSTS BUDGETING
There are two distinct issues of interest to litigators here. Firstly who should (initially at least) bear the costs of hosting on an electronic platform. Secondly whether a major multi-Claimant action should be subject to costs budgeting. “… costs budgeting…
BACK TO BASICS MONDAY: WHEN A DOCTOR PROVIDES A NOTE ABOUT THE CAPACITY OF A WITNESS: WHAT THE COURT REQUIRES
The issue of medical evidence to support a claim that a witness cannot attend trial, or requires some dispensation, have been some recurrent issues in litigation over the years. Many problems come from the medical evidence in support failing to…
COST BITES 417: THE LIABILITY FOR COSTS OF EACH CLAIMANT WHEN A MULTI-CLAIMANT ACTION WAS DISCONTINUED: BEING PART OF SUCH AN ACTION MAY NOT BE CHEAP…
There has been much publicity recently about liability for costs when “multi-claimant” actions fail, are struck out or discontinued. We have a case that considers those issues here, albeit on a relatively small scale. Each claimant was liable to pay…
COST BITES 416: SHOULD THE COURT IMPOSE A COSTS CAP WHEN THE CASE WAS BUDGETED? THIS IS RARELY GOING TO BE SUCCESSFUL…
This is an interesting judgment on whether the court should impose a costs cap in a case that was already subject to costs budgeting. The defendant had made an application to vary the budget which was pending. The judge had…
THROWBACK FRIDAY: ANOTHER (YES ANOTHER) CASE WHERE A LITIGANT ARGUED “MY CASE WAS SO HOPELESS I SHOULDN’T HAVE TO PAY YOUR COSTS” (OCTOBER 2024)
This week we have been looking at could broadly be called “ambitious” arguments by, or on behalf of, litigants as to why they should not pay costs. There are a surprising number of such cases. Here we revisit a post…
“I HAD NEVER COME ACROSS A CASE IN WHICH SO LITTLE RESPECT HAD BEEN PAID TO THE COURT”: INACCURATE TIME ESTIMATES; OVER-LENGTHY SKELETONS; ENORMOUS BUNDLES (OH AND AN ATTITUDE OF “WE’LL COME INTO COURT WHEN WE WANT TO”…): I CAN’T RECALL JUDICIAL CRITICISM MUCH STRONGER THAN THIS,
Over the years we have looked at some fairly “vigorous” judicial criticisms of litigators and non-compliance with procedural requirements. This case contains some of the the most vigorous I have seen. The judge points to wholesale failures by both sides…
COST BITES 415: A LOOK AT SOME SUMMARY ASSESSMENTS IN AN ACTION: HOURLY RATES NOT GOING FOR A SONG
When the opportunity arises it is helpful to look at cases where costs are summarily assessed. We have three examples here. There are another two cases where the Tribunal expressed surprise at the size of the bills involved. “The first…
COST BITES 414 : A WITHDRAWN PART 36 OFFER STILL HAD AN IMPACT ON THE AWARD OF COSTS: CLAIMANTS COULD NOT RECOVER COSTS AFTER DATE OF OFFER
In this case the judge considered the question of whether a Part 36 offer that was withdrawn after trial should have any impact on the award of costs. The judge held that it should. If the claimants had accepted they…
COST BITES 413: GET YOUR FUNDING IN PLACE AND TELL EVERYONE IF THE MUSIC HAS STOPPED: CAT AWARDS COSTS ON THE INDEMNITY BASIS DUE TO CONDUCT
It goes without saying that this is a decision that must be music to the defendants’ ears. Not only was the claim dismissed the claimant was ordered to pay costs on an indemnity basis for a large part of the…
CAN THE WORDING OF A COVERING LETTER ENCLOSING TERMS OF BUSINESS FROM A SOLICITOR TO A CLIENT GIVE RISE TO AN ESTOPPEL SO AS TO PREVENT RELIANCE ON THOSE TERMS?
Here we look at a case where a solicitor’s (former) client argued that the wording of a covering letter enclosing the firm’s terms and conditions meant that they were estopped from relying on those terms. It is an interesting example…
COST BITES 412: SHOULD THE CLAIMANT’S FAILURE TO GIVE FULL AND FRANK DISCLOSURE ON AN APPLICATION TO SERVE OUT LEAD TO THE DEFENDANTS RECOVERING INDEMNITY COSTS: CONDUCT CONSIDERED
This judgment considers whether certain, admitted, failures by the claimant to give full and frank disclosure should lead to costs being awarded against it, even though it defeated the defendants’ application to set aside the order that was made. The…
COST BITES 411: NON-PARTY COSTS ORDER MADE AGAINST CLAIMANT’S DIRECTOR : HE WHO EXPECTS TO BENEFIT RUNS A RISK OF PAYING THE COSTS…
This case considers the issue of whether it was appropriate to make a non-party costs order. The Master reached a clear conclusion that it was. The individual in question was effectively the driving force behind the litigation in addition to…
NEW (4th) EDITION OF THE TECHNOLOGY AND CONSTRUCTION COURT GUIDE 2026: A QUICK GUIDE TO THE CHANGES AND THE NEW PARTS
The Fourth Edition of the Technology and Construction Court Guide came into force on 1 July 2026. It is much more than a routine update. Whilst much of the familiar structure remains, there are significant additions reflecting changes in legislation,…
COST BITES 411: HOW DOES A COURT DETERMINE THE AMOUNT OF AN INTERIM PAYMENT AS TO COSTS WHEN THE CASE HAS NOT BEEN BUDGETED? SHOULD A PAYMENT BE ORDERED AT ALL?
Knowledge of the principles dealing with payments on account is important for all litigators. For successful parties it is a major aid in relation to cash flow. For the losing party a payment on account will reduce the interest payable. …
COST BITES 410: A CLAIMANT’S COMPLIANCE WITH THE RULES RELATING TO ISSUE AND PLEADING CANNOT BE USED AS A GROUNDS FOR REDUCING ITS RECOVERABLE COSTS
It is common for an unsuccessful part to argue that its liability to pay costs should be reduced because of the “conduct” of the successful party. We see such arguments raised here – with no degree of success. A party…
COST BITES 409: A PART 36 CASE TO FINISH OFF THE WEEK: CLAIM £8.4 MILLION GET £102,000 (HAVING TURNED DOWN AN OFFER OF £3.175 MILLION): IT IS NOT “UNJUST” FOR THE CLAIMANT TO FACE TO NORMAL PART 36 CONSEQUENCES, NOR WOULD THE COURT “PICK AND CHOOSE” IN RELATION TO THE COSTS PAYABLE
If ever a case served as a warning to the risks of litigation it is this one. The claimant sought damages of up to £8.4 million but obtained judgment of £102,000. This turned out to be expensive litigation, with the…
COST BITES 408: WHO (IF ANYONE) SHOULD PAY THE COSTS WHEN THE COURT MAKES NO DECISION ON THE SUBSTANTIVE ISSUE?
In this case the judge considered an argument that a claimant who made, but failed, in an application for an interim injunction should not necessarily be liable for costs. This argument was put forward on the basis that the court…
COST BITES 407: COURT OF APPEAL OVERTURNS DECISION STRIKING OUT POINTS OF DISPUTE BECAUSE OF NON-AINSWORTH COMPLIANCE: JUDGMENT GIVEN TODAY
In this case the Court of Appeal overturned a decision, itself made on appeal, which had struck out a crucial paragraph of Points of Dispute to a bill of costs. The crucial point here, however, is that this is not…
THE CURRENT IMPORTANCE OF PLEADINGS 85: THERE IS NO “FREE PASS” WHEN AN ACTION IS BROUGHT ON BEHALF OF MULTIPLE CLAIMANTS: “THERE IS A DEFINITE SENSE OF THE CLAIMANTS THRASHING ABOUT, TRYING TO FIND ANY ISSUES WHICH COULD BE TRIED WHICH AVOIDED ANY INVESTIGATION OF ANY FACTS.”
We are returning to this Court of Appeal decision for a second time. Initially we looked at the judgment in relation to the outcome – that the claims could be brought together. However there are important points made here in…
WHERE THINGS WENT WRONG IN LITIGATION (AND STOPPING IT HAPPENING TO YOU) 2: ADVISING A CLIENT THAT THEY ARE NOT LIABLE FOR COSTS BECAUSE PROCEEDINGS HAVE NOT BEEN SERVED
This post arises out of the previous post in the series. However here I want to concentrate on one issue arising out of this. The claimant’s solicitors appear to have advised the claimant that they would not be liable to…
WHERE THINGS WENT WRONG IN LITIGATION (AND STOPPING IT HAPPENING TO YOU) 1: COSTS ADVICE ON DISCONTINUANCE
This series is about examining cases where things went wrong for litigators and what readers can do to avoid this happening to them. The aim is not to criticise those who make mistakes but to use their experience to prevent…
BACK TO BASICS MONDAY: WHEN A RULE OR AN ORDER PRESCRIBES A PAGE LIMIT TO A WITNESS STATEMENT – THEN YOU’D BETTER STICK TO IT: THE COURT IS UNLIKELY TO CONDONE “FORENSIC CHEATING”
Here we are, with no apology, looking at the same case in the earlier post again. The earlier post dealt with the issue of relief from sanction. Here I want to concentrate on the litigant’s deliberate decision to breach the…
COST BITES 406: CAN A PARTY RECOVER UNNECESSARY COSTS AS DAMAGES? THE CONSEQUENCES OF AN UNNECESSARY SECOND ACTION CONSIDERED IN THE HIGH COURT
This is a judgment that considers the difficult issue of whether a claimant, who has been put to unnecessary costs of pursuing to separate actions because of the defendant’s conduct, can claim the unnecessary elements of costs back as damages. …
COST BITES 405: SHOULD A SUCCESSFUL CLAIMANT’S CONDUCT LEAD TO A DEDUCTION OF 45% OF THEIR COSTS? A TOOTH DECISION…
This is a case where the judge had to consider whether a successful claimants costs should be reduced because of conduct. The judge found that there were grounds to criticise the claimant’s conduct of the action. However this could not…
THE COURT OF APPEAL OVERTURNS A JUDICIAL REVIEW DECISION IN FAVOUR OF A SOLICITOR: THE OMBUDSMAN GOT NOTHING WRONG (QUITE A LOT HERE ABOUT VULNERABLE CLIENTS AS WELL…)
In a judgment today the Court of Appeal have overturned a High Court decision that was (partially) in favour of a solicitor who had sought judicial review of a decision of the Legal Ombudsman. The Court has restored the Ombudsman’s…
COST BITES 404: JUDGE ORDERS DEFENDANT TO PAY COSTS ON THE INDEMNITY BASIS: PARTIES HAVE AN OBLIGATION TO ENGAGE WITH THE PROCESS OF LITIGATION: “THEY SHOULD BE USING NON-COURT BASED DISPUTE RESOLUTION WHEREVER POSSIBLE”
Here we look at a case where the court made an order for indemnity costs. The defendant had failed to engage fully in the litigation process and, importantly, failed to respond to the claimant’s offer to mediate. The Master was…
NEW COURT FEES COMING INTO FORCE ON THE 13th JULY 2026: SOME BRAND NEW PROVISIONS AND THE INFLATIONARY INCREASES: THE CIVIL AND FAMILY COURTS, THE MAGISTRATES’ COURT, THE LANDS CHAMBER (AND MANY OTHERS)
Some significant changes are taking place in court fees on the 13th July 2026. Some 170 fees will increase in line with inflation. Four sets of fees will be reduced to reflect reductions in their underlying costs. In addition there…
COST BITES 403: JUDGMENT TODAY: SUCCESS FEE AND ATE PREMIUM NOT PAYABLE BY CLIENT WHEN THE SOLICITOR FAILED TO MAKE REASONABLE ENQUIRIES ABOUT BTE INSURANCE
Here we look at a judgment given today which highlights the importance of considering the existence of pre-existing insurance policies when solicitors are acting for a claimant. The judge held that the solicitors had made inadequate enquiries in relation to…
BOTH SIDES WANTED A STRIKE OUT FOR NON-COMPLIANCE – BUT GOT NOWHERE (A FAIRLY EXPENSIVE – AND FRUITLESS DAY OUT…): “LOCKED HORNS” AND “SPIRITED CORRESPONDENCE”
Here we have applications to strike out by both sides for alleged non-compliance with a court order. The judge described the defendants’ application as “aggressive” and the claimant’s application as a “tit for tat” application. Ultimately, however, we are looking…
COST BITES 402: DOES THE FACT THAT LEGAL FEES HAVE BEEN PAID BY RELATIVES MEAN THAT A RESPONDENT IS NOT LIABLE TO PAY COSTS? THE INDEMNITY PRINCIPLE CONSIDERED
Here the court considered an argument that the indemnity principle meant that an unsuccessful respondent was not liable to pay the appellant’s costs. It was clear that the fees in question had been paid by family members and not the…
COST BITES 401: COURT OF APPEAL OVERTURNS TRIAL JUDGE’S DECISION ON COSTS: THE COMPLICATIONS THAT OCCUR WHEN A COURT IS ASKED TO TAKE DISHONESTY INTO ACCOUNT WHEN MAKING AN AWARD OF COSTS…
Here the Court of Appeal grappled with some interesting issues when it overturned a trial judge’s decision to make no order for costs. The Court of Appeal stated that although the judge had been critical of the conduct of the…
BACK TO BASICS MONDAY: WHAT ARE THE RULES IF A COURT ORDER DOES NOT STATE A SPECIFIC DATE FOR THE PAYMENT OF AN ORDER FOR COSTS?
Sometimes it may appear that this series is a bit too “basic”, dealing with things that (surely) everyone involves in litigation knows. However, more often than not, the topics are chosen because recent events have show that there is a…
THE COURT PREVENTED THE DEFENDANTS FROM MAKING ANY FURTHER APPLICATIONS IN THE CASE UNTIL THEY HAD COMPLIED WITH PREVIOUS COURT ORDERS: A PROPORTIONATE USE OF THE COURT’S CASE MANAGEMENT POWERS
Here we have a case where the court considered, in detail, the appropriate response of the court when a party had failed to comply with previous court orders as to payment of costs. The result was that the defendants in…
COST BITES 400: MASTERCARD FUNDER FAILS IN THE JUDICIAL REVIEW OF ITS SHARE OF THE PROCEEDS : IT TURNS OUT THAT LITIGATION IS NOT PRICELESS
We have got to number 400 in this series. It is perhaps fitting we deal with (what may well be) the tail end of a mammoth case. Further it is a case where litigation funders felt that they had not…
COST BITES 399: WHEN THE COSTS OF THE LITIGATION ALMOST ENTIRELY CONSUME THE VALUE OF THE ESTATE BEING SUED:
This is another case that litigators and litigants need to read. An action against an estate led to the net value of the estate being “almost entirely” consumed by costs. During the course of the litigation the (unsuccessful) claimant already…
AN OFFER TO SETTLE THAT DOES NOT INCLUDE PROVISION FOR COSTS MAY WELL BE INEFFECTIVE: IT CERTAINLY WILL NOT LEAD TO A PETITION BEING STRUCK OUT: COURT OF APPEAL DECISION TODAY
Here we look at an argument that a petition should be struck out because the respondents had made a reasonable offer to resolve the issues between the parties. The Court of Appeal observed that the “reasonable offer” did not include…
COST BITES 398: MORE BUDGETING IN THE MERCEDES-BENZ LITIGATION: ONLY A “MODEST” REDUCTION OF £1 MILLION HERE: BUT WHY (THE COURT ASKS) WEREN’T REALISTICALLY REDUCED FIGURES PUT FORWARD IN THE FIRST PLACE?
Here we look at the remaining elements of costs budgeting in a case that we have looked at before. The reductions this time were not as severe as previously. It remains the case, however, that just over £1 million was…
COST BITES 397: THE PARTIES THAT SPENT £500,000 IN A DISPUTE THAT WAS WORTH £5,000: THE JUDGE FOUND GOOD REASON TO DEPART FROM THE DEFENDANT’S COSTS BUDGET (A CASE I WOULD ENCOURAGE EVERY LITIGATOR TO READ)
Occasionally there is a case that sends out clear lessons to litigator and litigants alike. We have such a case here. I would recommend it for universal reading. The judge observed that the parties had managed to spend over half…
COST BITES 396 : THE CLAIMANT’S CONDUCT WAS SUCH IT WAS APPROPRIATE TO AWARD INDEMNITY COSTS IN THE NATIONAL LOTTERY CASE; IT WAS NOT APPROPRIATE TO REDUCE THE SUCCESSFUL DEFENDANTS’ COSTS
We have seen many cases in which the courts have considered whether indemnity costs should be ordered. Here we have a case where the judge was clear in her view that the claimant’s conduct of the litigation was such that…
COST BITES 395: A RETAINER WAS NOT A CONTENTIOUS BUSINESS AGREEMENT BECAUSE THE TERMS IN RELATION TO HOURLY RATES RENDERED IT TOO UNCERTAIN (COURT OF APPEAL DECISION YESTERDAY)
This appeal has been much discussed in the specialist press. A solicitor’s client argued that the terms of a retainer rendered in a Contentious Business Agreement. This would have given her greater scope to dispute the bills. The Court of…
COST BITES 394: COURT OVERTURNS DECISION THAT A CLAIMANT LANDLORD IS ENTITLED TO RECOVER THE COSTS: AWARD OF INTEREST ALSO OVERTURNED
This is a case where a decision as to costs and interests was overturned on appeal. The Circuit Judge found that the claimant landlord had no entitlement to claim costs under the terms of the lease. Further the claim for…
COST BITES 393: A CONDITIONAL FEE AGREEMENT BETWEEN LAW FIRMS WAS VALID: THERE WAS NO BREACH (AND IF THERE WAS IT WAS NOT MATERIAL): FRESH OFF THE PRESS – JUDGMENT THIS AFTERNOON
I am grateful to Jamie Carpenter KC for drawing my attention to this judgment given this afternoon. It relates to an interesting dispute between law firms. The claimant had entered into a CFA with the defendant. The defendant argued that…
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