THE COPYING OF TRIAL BUNDLES: WHO PAYS THE PRICE?
In the judgment today in Axnoller Events Ltd v Brake & Anor [2021] EWHC 1706 (Ch) HHJ Matthews (sitting as a High Court Judge) had to determine an issue in relation to who pays the costs of copying a trial…
Commencing Assessment Proceedings, Default Certificates and Drafting Points of Dispute: Where does it all go wrong? Webinar 30th June 2021
Kings Chambers is presenting a webinar on the 30th June 2021 about avoiding problems in the assessment of costs process and the effective drafting of points of dispute. Booking details are available here. THE WEBINAR In Grekor Fisken Ltd -v-…
“THE SOMETIMES HARSH, EVEN BRUTAL, DEFAULT CONSEQUENCES OF 36.17 MUST BE APPLIED IN THE PRESENT CASE”: RECOVER £10 IN DAMAGES AND STILL GET COSTS ON THE INDEMNITY BASIS
In Shah & Anor v Shah & Anor [2021] EWHC 1668 (QB) Mrs Justice Collins Rice upheld the decision of the trial judge that the defendants should bear the normal Part 36 consequences when the claimants had made a Part…
THE ASSESSMENT OF COSTS: A “NEAR MISS” OFFER IS NOT ENOUGH
In Mullaraj v Secretary of State for the Home Department [2021] EWHC B5 (Costs) Deputy Costs Judge Campbell rejected an argument that a “different order” for costs should be made following an assessment of costs. The paying party had made…
“THE PROVISION OF THE CPR FOR SERVICE… SHOULD BE FAMILIAR TO EVERY SOLICITOR WHO CONDUCTS LITIGATION… THE MULTIPLE ERRORS MADE IN PURPORTING TO SERVE THE DEFENDANT COULD HAVE BEEN AVOIDED WITH A LITTLE DILIGENCE”
Although issues of service are a regular feature on this blog I cannot recall many cases about mis-service of Notice of Commencement of a Bill of Costs. There have been several recently. The claimant failed to serve properly in Gregor…
DEDUCTION OF LEGAL FEES FROM THE CLIENT’S DAMAGES: SOLICITORS SUCCESSFUL ON APPEAL
The decision of Mr Justice Lavender in SGI Legal LLP v Karatysz [2021] EWHC 1608 (QB) is part of the long, and continuing, battle relating to the deduction of legal fees by solicitors from claimant’s damages. In this case the…
“THERE IS A WORRYING TREND… IN TERMS OF FAILURE BY EXPERTS GENERALLY IN LITIGATION COMPLYING WITH THEIR DUTIES”
There is an important point about a litigant’s responsibility for the conduct of their own experts (and expert’s conduct generally) in Beattie Passive Norse Ltd & Anor v Canham Consulting Ltd (No. 2 Costs) [2021] EWHC 1414 (TCC). This was…
MEDICAL AGENCY COSTS NOT RECOVERABLE IN FIXED COSTS REGIME: REPORT OF A DECISION
I am grateful to Simon Fisher of DWF for sending me a copy of the decision of Deputy District Judge Akers in Powles -v- Hemmings, a decision on the 23rd April 2021, a copy of which is available here Powles…
CLAIMANTS RECOVER NO COSTS AT ALL WHEN ANSWERS TO QUESTIONS WERE “DIRECTLY UNTRUE”: ALSO LIABLE FOR INDEMNITY COSTS FOR A PERIOD
This blog has looked twice at the judgment of Mr Justice Fraser in Beattie Passive Norse Ltd & Anor v Canham Consulting Ltd [2021] EWHC 1116 (TCC). There is now a sequel. In Beattie Passive Norse Ltd & Anor v Canham Consulting…
EXCEPTIONAL CIRCUMSTANCES OUST FIXED COSTS: £350,000 CASE SHOULD NEVER HAVE BEEN IN THE PORTAL
I am grateful to barrister Sarah Robson for sending me a copy of the decision of District Judge Jackson in Jackson -v- Barfoot Farms (Canterbury County Court 29th November 2017, a copy of which is available here Jackson v Barfoot). …
THE SITUATION WHERE A PARTY SERVES ITS SCHEDULE OF COSTS LATE: CLAIMANT PERMITTED TO RECOVER COSTS, BUT THIS IS A POINT TO WATCH
In Tribe v Elborne Mitchell LLP (Costs) [2021] EWHC 1252 (Ch) Deputy Master Raeburn considered the appropriate approach when a party serves a schedule of costs late. Although the claimant was allowed to recover costs I report this case primarily…
DEFAULT JUDGMENT FOR SOLICITORS’ COSTS: COURT REFUSES TO SET ASIDE JUDGMENT: DEFENDANT FAILS ON BOTH THE DENTON CRITERIA AND THE MERITS
In Carpmaels & Ransford Llp & Anor v Regen Lab SA [2021] EWHC 845 (Comm) Mr Justice Waksman refused the defendant’s application to have judgment in default set aside. The claimants were solicitors bringing proceedings for their costs. The judge…
SIGNIFICANT DEVELOPMENTS IMMEDIATELY BEFORE THE CASE IS COSTS BUDGETED? WHEN IS THE SOLICITOR EXPECTED TO JUMP?
In Thompson -v- NSL Limited [2021] EWHC 679 (QB) Master McCloud considered the issue of whether there had been significant developments sufficient to allow a revision of the costs budget when it was known at the time the budget was…
APPLYING TO VARY A COSTS BUDGET: RULES AND PROCEDURE: WEBINAR 19TH MAY 2021
On the 19th May 2021 I am presenting a webinar on applying to vary a costs budget. Booking details are available here. WHAT THE WEBINAR COVERS Making sure that the budget is, and remains, correct is an important part…
DEFAULT COSTS CERTIFICATE NOT SET ASIDE: SERVICE BY EMAIL WAS WRONG, BUT RECTIFIABLE: RELIEF FROM SANCTIONS REFUSED
Cases on Default Costs Certificates appear to be like London Buses – they come along in twos. Here we have the second case in two days. In Serbian Orthodox Church – Serbian Patriarchy v Kesar & Co [2021] EWHC 1205…
DEFENDANTS FAIL TO HAVE DEFAULT COSTS CERTIFICATE OF US$3 MILLION SET ASIDE: DRAFT POINTS OF DISPUTE NOT AVAILABLE AT THE APPLICATION
In National Bank of Kazakhstan & Anor v The Bank of New York Mellon SA/NV, London Branch & Ors [2021] EWHC B7 (Costs) Costs Judge Rowley refused an application by the defendants to set aside a default costs certificate. This…
DOES A CLAIM FOR A DEFECTIVE PRODUCT FALL WITHIN THE DEFINITION OF PUBLIC LIABILITY CLAIMS? A JUDGMENT AT FIRST INSTANCE
I am grateful to solicitor Gareth Edwards from Mooneerams, solicitors, for providing me a copy of the judgment of District Judge Vernon, sitting at Cardiff 17th March 2021, in the case of X (a Minor) -v- MPL Home & Senza…
THE DANGERS OF WORKING UNDER A DBA: WHEN DOES RIGHT TO PAYMENT ARISE? WAS THE DBA ENFORCEABLE: ISSUES CONSIDERED BY THE HIGH COURT
In Tonstate Group Ltd & Ors v Wojakovski & Ors [2021] EWHC 1122 (Ch) Mr Justice Zacaroli considered the issue of whether the right to payment under a Damages Based Agreement (DBA). It was held that right to payment under…
CAN THE COURT MAKE A COSTS ORDER AFTER A THE FIRST PART OF A SPLIT TRIAL? THE RELEVANCE OF A PART 36 OFFER
In Original Beauty Technology Company Ltd & Ors v G4k Fashion Ltd & Ors [2021] EWHC 954 (Ch) David Stone (sitting as a High Court judge) considered the question of whether the court should make a costs order after a…
INDEMNITY COSTS DO NOT AMOUNT TO A BLANK CHEQUE: EVEN IN LARGE CASES
In Louis Dreyfus Company Suisse S.A. v International Bank of St. Petersburg (Joint-Stock Company) [2021] EWHC 1039 (Comm) Mr Justice Calver reduced a claim for costs substantially, even though costs were being awarded on the indemnity basis. “it may…
COSTS OUTSIDE THE COSTS BUDGET WHEN A PARTY IS LIMITED TO COURT FEES: STRIKING OUT, RELIEF FROM SANCTIONS, ADMINSTRATIVE ERRORS BY THE COURT, ABORTIVE COURT HEARINGS: ALL PROCEDURAL LIFE IS HERE…
The decision of Mr Justice Marcus Smith in Pasricha v Pasricha [2021] EWHC 1017 (Ch) contains a consideration of the circumstances in which a court can order costs to be paid to a party when their budget has been limited…
BUNDLES AGAIN: JUDGES WASTING THEIR BREATH: “HOW MANY YEARS – DECADES – HAVE TO PASS BEFORE THOSE WHO KNOW BETTER AND WHO… ARE BEING HANDSOMELY REMUNERATED COMPLY WITH THEIR OBLIGATIONS?”
Another post that adds to the dozens, if not hundreds, of cases about bundles. The trial bundles were the subject of considerable criticism by Sir James Munby in C (A Child) [2021] EWFC 32. “I forebear from further judicial exhortation…
APPLYING TO VARY A COSTS BUDGET: RULES AND PROCEDURE: WEBINAR 19th MAY 2021
On the 19th May 2021 I am presenting a webinar on applying to vary a costs budget. Booking details are available here. WHAT THE WEBINAR COVERS Making sure that the budget is, and remains, correct is an important part of…
APPLICATIONS TO VARY A COSTS BUDGET: SIGNIFICANT DEVELOPMENTS, PROMPTNESS AND CPR 3.15A: A JUDGMENT THAT EVERY CIVIL LITIGATOR HAS TO READ
In Persimmon Homes Ltd & Anor v Osborne Clark LLP & Anor [2021] EWHC 831 (Ch) Master Kaye provides a “cut out and keep” guide for anyone involved in attempting to vary a costs budget. There are important points made…
“THERE ARE NOT TWO SETS OF RULES FOR LITIGATION IN THIS JURISDICTION”: COURT AWARDS INDEMNITY COSTS AGAINST A LITIGANT IN PERSON
In Sir Henry Royce Memorial Foundation v Hardy [2021] EWHC 817 (Ch) HHJ Paul Matthews (sitting as a High Court judge) awarded indemnity costs against a litigant in person. “There are not two sets of rules for litigation in this…
PERSONAL INJURY COSTS 2021: WATCH THE “SAINT AND GREAVSIE” OF THE COSTS BAR
My colleagues Craig Ralph and Andrew Hogan have delivered a webinar “Personal Injury Costs 2021” which is now available on the Kings Chambers website. THE WEBINAR The webinar takes you through the hot topics relating to personal injury costs. …
A CAP OF 25% ON COSTS TO BE DEDUCTED FROM DAMAGES GIVES RISE TO PRESUMPTION OF INFORMED CONSENT FROM CLIENT
The Law Society Gazette carries a report of the decision of Regional Costs Judge Rouine in Swann -v- Slater & Gordon. The judge decided that the existence of a cap on costs liability of 25% indicated that a claimant/client had…
COURT ALLOWS ASSESSMENT OF SOLICITOR’S BILLS OUTSIDE 12 MONTHS: PUBLIC SPIRITED LITIGATION DOES NOT AMOUNT TO SPECIAL CIRCUMSTANCES
I am grateful to Mark Carlisle for sending me a copy of the judgment of Master Brown in Erlam -v- Edmonds Marshall McMahon Limited (SCCO – 19th November 2020 – a copy available here Erlam v Edmonds Marshall McMahon Ltd…
BARRISTER SUES FOR FEES: COURT STRIKES OUT SOLICITOR’S DEFENCE: BARRISTER OWES NO DUTY OF CARE TO SOLICITOR
In McFarland-Cruickshanks v England Kerr Hands Solicitors Ltd [2021] EWHC 525 (Comm) HHK Worster (sitting as a High Court Judge) granted an application to strike out the defence and counterclaim and for summary judgment. The claimant was a barrister suing…
COSTS, CONDUCT AND ASSESSMENT ON THE INDEMNITY BASIS: £2 MILLION SPENT TO RECOVER £40,666.47
An earlier post looked at the construction of the Part 36 offer in Kings Security Systems Ltd v King & Anor [2021] EWHC 653 (Ch) Andrew Lenon Q.C. (sitting as a Deputy Judge of the Chancery Division). Here we look at…
AMBIGUITY AS TO DATE DID NOT INVALIDATE A PART 36 OFFER: HIGH COURT DECISION
In Kings Security Systems Ltd v King & Anor [2021] EWHC 653 (Ch) Andrew Lenon Q.C. (sitting as a Deputy Judge of the Chancery Division) rejected the defendants’ arguments that an ambiguity as to the date meant that a Part…
SANCTIONS FOR LATE FAILURE TO FILE A COSTS BUDGET DO NOT APPLY TO INCURRED COSTS: REPORT OF A COUNTY COURT DECISION
Recommended reading today is a useful report from PIC available here in relation to a decision in Hardy -v- Skeelis (4th March 2021, County Court at Stoke, HHJ Rawlings). The appeal decision confirms that the sanctions imposed for failing to…
A COUNTERCLAIMING DEFENDANT IS NOT ENTITLED TO QOCS PROTECTION: THAT WAS NOT WHAT THE JACKSON REFORM WERE FOR…
I am grateful to barrister Stephen Elphick for sending me a copy of the decision of HHJ Gargan in Sutcliffe -v- Ali (County Court at Middlesbrough 15th January 2021). It is a case that deals with the issue of whether…
PROVING THINGS 205: COUNSEL NOT ENTITLED TO £6,922,532 IN FEES BUT WERE ENTITLED TO EXEMPLARY DAMAGES
In Cakebread & Anor v Fitzwilliam [2021] EWHC 472 (Comm) Sir Ross Cranston (sitting as a High Court judge) considered an argument from the claimant barristers that an arbitrator had erred in refusing to award them their fees. The essential…
UNLESS ORDER MADE WHEN THE CLAIMANT HAD NOT PAID AN INTERLOCUTORY ORDER FOR COSTS
In Junejo v New Vision TV Ltd [2021] EWHC 449 (QB) Deputy Master Hill QC made a peremptory order that the claimant pay an order for costs. However that payment was to be by instalments. There is a useful review…
CIVIL PROCEDURE AND COSTS ROUND UP: FEBRUARY 2021
A round up of posts and articles about civil procedure and costs in February 2021. THE CIVIL PROCEDURE RULES The Law Society Gazette Litigants baffled as Civil Procedure Rules move to new site Litigation Futures Minister promises urgent review of…
“THE DEVELOPING BODY OF LAW AS TO THE RELATIONSHIP BETWEEN COSTS MANAGEMENT AND DETAILED ASSESSMENT”: INTERIM ORDER FOR COSTS AFTER A TRIAL: 90% OF BUDGETED COSTS 70% OF INCURRED COSTS
The courts have been supportive of applications for interim costs for a successful party after a trial. The interim payment at this stage is not nominal and is normally firmly based on the budgeted costs. A working example can be…
CIVIL PROCEDURE BACK TO BASICS 89: THE 2% CAP ON COSTS BUDGETING: SOMETHING TO WATCH OUT FOR
Some draft orders for CCMCs I have seen recently included, towards the end a provision for the 2% cap on the budgeting process to be be applied. Anyone faced with such a draft should point to the provisions of CPR…
CONTRACTUAL CLAIM FOR COSTS CONSTRUED AS BEING COSTS ON AN INDEMNITY BASIS
In Criterion Buildings Ltd v McKinsey & Company Inc (United Kingdom) & Anor [2021] EWHC 314 (Ch) HHJ Paul Matthews (sitting as a High Court Judge) rejected a paying party’s argument that it did not have to pay the costs…
ARGUING ABOUT COSTS – WHEN YOURS ARE BIGGER THAN THEIRS
In HXA & Anor v Surrey County Council [2021] EWHC 250 (QB) Deputy Master Bagot QC struck out part of the claimant’s claim for damages against the defendant local authority. This blog, however, is interested in the question of costs….
SOLICITORS NOT ENTITLED TO INDEMNITY COSTS BY RELYING ON CONTRACTUAL TERMS: A FORMER CLIENT’S SUCCESSFUL APPEAL
I am grateful to barrister Ted Loveday for sending me a copy of the judgment of Mr Recorder Cohen QC in Carmen Chevalier-Firescu -v- Ashford LLP (29th January 2021, Central London County Court, a copy of which is availableChevalier-Firescu -…
SEEKING TO ADD A JOINT EXPERT INTO THE ACTION 2: A COSTLY PROCESS: INCURRING LIABILITY FOR £90,000 IN AN ATTEMPT TO RECOVER £16,000
I am grateful to my colleague Colm Nugent for giving me further details of the costs involved in the defendant’s unsuccessful application to join a joint expert into the action which was discussed in a post earlier today. Colm also…
RULE CHANGES COMING INTO FORCE IN APRIL 2021 (3): VULNERABLE PARTIES AND WITNESSES (AGAIN)
I am returning to the changes being introduced in relation to vulnerable parties and witnesses because the new rules are now available here . The new Practice Direction was looked at in detail in an earlier post. CHANGES TO…
HOURLY RATES AND THE SUMMARY ASSESSMENT OF COSTS: SOME INTERESTING ISSUES
In ABS Company Ltd v Pantaenius UK Ltd & Ors [2020] EWHC 3720 (Comm) HHJ Pelling QC assessed costs at the end of a trial. There are some interesting observations in relation to hourly rates, and the conduct of litigation…
IF A DEFENDANT IS BEING SUED FOR TOO MUCH MONEY THEN IT SHOULD USE PART 36: COURT OF APPEAL OVERTURN DECISION THAT THERE SHOULD BE NO ORDER FOR COSTS
In Global Energy Horizons Corporation v Gray [2021] EWCA Civ 123 the Court of Appeal overturned a decision that there be no order for costs. The fact that the claimant had succeeded on a fraction of its claim was not…
YOU CAN’T CLAIM THE COSTS OF ADVERTISING FOR CLIENTS IN YOUR COST BUDGET: YOU REALLY CAN’T
An interesting point arose in the judgment of Mr Justice Saini in Weaver & Ors v British Airways Plc [2021] EWHC 217 (QB). The costs of advertising for clients to join a Group Litigation Order are not recoverable, they were…
RULE CHANGES COMING INTO FORCE IN APRIL 2021 (2): PART 36 OFFERS AND THE ACCRUAL OF INTEREST AFTER THE RELEVANT DATE FOR ACCEPTANCE
The Civil Procedure (Amendment) Rules 2021 introduce a new CPR 36.5 (5)introduce a new rule as to offers and interest after the expiry of an offer. It enables the party making the offer to include provision for interest to accrue after…
SOLICITORS SUING FOR THEIR COSTS AND SUMMARY JUDGMENT: THE AMOUNT OF DETAIL NEEDED IN THE BILL
In Devonshires Solicitors LLP v Elbishlawi & Anor [2021] EWHC 173 (Comm) Mr Justice Butcher considered the position when a solicitor was suing for their costs and the bill was challenged. Summary judgment was allowed for some of the bills, other,…
INTERIM COSTS AWARD OF £8 MILLION: THE COURT IS WARY WHEN THE PAYING PARTY DOES NOT SHOW THEIR HAND…
Our final look at the judgment of Mr Justice Turner in Municipio De Mariana & Ors v BHP Group PLC & Anor [2021] EWHC 146 (TCC). The judge had to determine the appropriate award for interim costs. One interesting point…
COSTS NOT REDUCED BECAUSE OF THE WAY A DEFENDANT CONDUCTED ITS CASE: THE PRAGMATIC PRUNING OF A CASE SHOULD NOT BE DETERRED
We are returning again (and not for the last time) to the judgment of Mr Justice Turner in Municipio De Mariana & Ors v BHP Group PLC & Anor [2021] EWHC 146 (TCC). This time we are looking at the claimants’ argument…
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