COST BITES 355: VARYING A BUDGET (3): PROPOSED VARIATIONS DISALLOWED BECAUSE THEY WERE NOT MADE “PROMPTLY”
This is the final part of today’s trilogy considering applications to vary costs budget. We have already seen that the judge determined that many issues in the case were “significant developments” which could, in theory, lead to a variation of…
COST BITES 354: VARYING A BUDGET (2) HOW WAS THE ISSUE OF “SIGNIFICANT DEVELOPMENTS” CONSIDERED IN PRACTICE?
The previous post looked at the judge’s consideration of the principles relating to variations in a costs budget. Here we look at how this worked out in practice with the judge considering whether various issues amounted to “significant developments”. Some…
COST BITES 353: VARYING A COSTS BUDGETS (1): THE PRINCIPLES CONSIDERED: WHAT IS MEANT BY “SIGNIFICANT DEVELOPMENTS”?
We are taking a detailed look at a judgment that deals with proposals to vary costs budgets. This post will look at the judge’s considerations of the rules, principles and guidance that relates to variation of budgets. Later posts will…
COST BITES 352: S.106 OF THE PATENTS ACT HAS NO IMPACT UPON THE COURT’S DECISIONS IN RELATION TO COSTS BUDGETING
There are several interesting issues raised in this judgment. The fundamental point is whether the costs budgeting exercise is an “award of costs or expenses”. The judge decided that it is not. This, in turn, had an impact upon whether…
COST BITES 351: WHAT HAPPENED TO THOSE COSTS BUDGETS IN PRACTICE? “COMPARE AND MATCH” IS NOT ALWAYS AN ACCURATE GUIDE:THE KEY QUESTION IS – WHO WILL BE DOING THE MOST WORK?
The previous post looked at the judge’s general observations in this case. Here we look how those principles were applied in practice. It is clear that the arguments that the costs were excessive by way of comparison did not always…
COST BITES 350: KNOWING HOW JUDGES APPROACH BUDGETING WHEN ONE SIDE SEEKS MUCH MORE THAN ANOTHER: IS THE COURT A “SLAVE TO COMPARISON”?
It is always important, and enlightening, to have a close look at judicial observations on the nature of costs budgeting. We have a useful judgment here. The judge considered the applicable principles and guidance before carrying out budgeting in a…
COST BITES 349 : THE CLAIMANT SHOULD HAVE BEEN GRANTED 100% OF THEIR COSTS: THE SECRETARY OF STATE’S FAILURE TO COMPLY WITH THE PRE-ACTION PROTOCOL WAS A HIGHLY RELEVANT FACTOR
It is rare for the Court of Appeal to overturn a first instance decision as to costs. We see an example of this happening here. The Upper Tribunal awarded the claimant 75% of his costs of a judicial review application…
COST BITES 348 : A PARTY SEEKING SECURITY FOR COSTS SHOULD HAVE INCLUDED TIME SPENT IN SETTLEMENT AND ADR
There is an interesting comment at the end of the judgment. The judge made an order for security for costs. However he also expressed concern that the defendant’s estimated costs did not include anything in relation to the costs of…
MEMBER NEWS: A REMINDER OF MEMBER BENEFITS AND WHERE TO FIND THE DISCOUNT CODES: ESSENTIAL TOPICS COVERED IN WEBINARS THROUGHOUT THE YEAR
A reminder that member subscribers have access to discounts on webinars being presented throughout the year. The details of the webinars, the discounts and how to find the discount codes are below. The first webinar sets out the practical consequences…
WHEN PERMISSION IS (AND IS NOT) REQUIRED TO DISCONTINUE A CLAIM BROUGHT ON BEHALF OF MINORS: IT STILL HAS SERIOUS COSTS CONSEQUENCES THOUGH
Here we are looking at an interesting issue relating to discontinuance. In some circumstances a claim brought by a minor or protected party cannot be discontinued without the court’s permission; in other circumstances no permission is required. The distinction is…
COST BITES 347: CLAIMANTS FAILURE TO “CUT THEIR CLOTH” MEANT COSTS OF BUDGETING PROCESS WERE REDUCED BY 20%
We have seen several cases where an “overambitious” costs budget has led to a reduction or disallowance in the costs of budgeting. We have another example here. The claimants were effectively given a second chance to produce budgets having had…
COST BITES 346: CONDUCT, “PART 36 OFFERS” AND THE STATUTORY PRESUMPTION ON A SOLICITORS ACT ASSESSMENT: THE COSTS OF “ASSESSMENT” ARE DISTINCT TO THE COSTS OF “PROCEEDINGS”
In this judgment given yesterday a Costs Judge considered the relevance of conduct in a Solicitors Act assessment. In particular whether an offer expressed as a “Part 36 offer” by the claimant client could amount to “special circumstances” to displace…
COST BITES 345: RECEIVING PARTY’S FAILURE TO FILE ALL RELEVANT DOCUMENTS ON A PROVISIONAL ASSESSMENT RENDERS THE ASSESSMENT A NULLITY: CLEVER AND COMPLEX ARGUMENTS DID NOT PREVAIL
What are the consequences if a party lodging the documents for a provisional assessment of costs fails to file all the relevant documents and the assessment goes ahead without the judge seeing all the points of dispute? . This is…
COST BITES 344: INSOLVENCY COURT HAS POWER TO MAKE A PRO BONO COSTS ORDER FOR THE COSTS OF COUNSEL: POINTS TO WARN ABOUT IF YOUR OPPONENTS ARE ACTING ON A PRO BONO BASIS
We have looked at pro bono costs orders several times. This case has an unusual twist in that the case was an insolvency case. The judge considered the Insolvency Rules and found that the court had power to make an…
COST BITES 343: AN OPPORTUNITY HAVE A CLOSE LOOK AT A CASE BEING BUDGETED: “I HAVE NO DOUBT THAT THE OVERALL FIGURE PUT FORWARD IS PRIMA FACIE DISPROPORTIONATE”
It is not often we get a chance to look at a budgeting decision. These cases are interesting and important because they show some light on the process. They also show the factors the courts consider when undertaking the budgeting…
COST BITES 342: THE CLAIMANTS’ HYPERBOLIC APPROACH TO ASSESSMENT COST THEM DEARLY: PERSONAL LIABILITY FOR £132,400 FOLLOWING THEIR CHALLENGE OF A BILL OF £147,436.33
If a case were needed to warn about the dangers of litigation this is one of them. The claimants challenged a solicitor’s bill of £147,436.33, the bill was reduced by some £18,000 (less than the solicitor had offered to settle…
PART 36: RECENT DEVELOPMENTS AND PRACTICAL CONSEQUENCES: DETAILS OF THE WEBINAR ON THE 26th FEBRUARY 2025
A working — indeed, a detailed — knowledge of how Part 36 operates in practice is essential for all litigators. Although it is famously described as a “self-contained code”, it is a code whose application continues to develop, often in…
COST BITES 341: THIS ASSESSMENT SHOULD NOT LAST 50 DAYS: COURT OF APPEAL ADVOCATES “SAMPLING” APPROACH TO ASSESSMENT OF £44 MILLION BILL OF COSTS
It is rare for a court, particularly the Court of Appeal, to take one step aside from the issue being determined and make some general observations on the process of the assessment of costs. This is one of those rare…
THE CURRENT IMPORTANCE OF PLEADINGS 52 : IF THE DEFENDANTS WERE PLEADING THAT INVIDIVIDUALS WERE INVOLVED IN POSITIVE DECEPTION THEN THAT SHOULD HAVE BEEN PLEADED
Here we have a case where the judge found that the defendants’ case was pleaded in such a way that it did not allow them to make specific allegations of deception about particular individuals. If the defendants had a case…
BACK TO BASICS MONDAY: APPLYING TO VARY A COSTS BUDGET: WHAT YOU NEED TO SHOW
What does an applicant need to show if it wants to persuade the court to vary an existing costs budget? There was a helpful summary of the principles set out in a case we looked at last week. An application…
YOU HAVE TO PAY THE FULL COURT FEE: THE FACT THAT A COURT HAS ACCEPTED A FEE DOES NOT RENDER IT “FUNCTUS OFFICIO”
Here we have an ingenious argument that a court could not claim a higher court fee. It was an ingenious argument that failed. This shows the importance of claimants knowing the value of a case when they issued, and the…
PART 36 OFFERS ON COSTS: JUDGE ALLOWS DEFENDANT’S APPEAL: THE OFFER HAD NOT BEEN BEATEN, THE COSTS OF PREPARING THE BILL WERE NOT RECOVERABLE
I am grateful to barrister James Miller for sending me a copy of this decision which highlights an important issue in relation to Part 36 and the assessment of costs. At first instance a Deputy District Judge found that the…
MAZUR MATTERS 48: THE INTERIM REPORT: REGULATOR’S GUIDANCE ON THE CONDUCT OF LITIGATION WAS “NOT ALWAYS ARTICULATED WITH SUFFICIENT PRECISION”
The snappily titled “Interim Report: Regulatory review of advice and guidance provided to the profession on the conduct of litigation by approved regulators and regulatory bodies” from the Legal Services Board is five pages long (including one page spent on…
THROWBACK FRIDAY: ADEQUATE TIME ESTIMATES (JANUARY 2020): 30 MINUTES WAS NOT REALLY LONG ENOUGH: REVISITING THE PREVIOUS POSTS
The issue of time estimates has been a regular source of posts for this site. This provides an opportunity to look at the judge’s observations that the original time estimate of 30 minutes before the District Judge was inadequate. We…
COST BITES 340: CLAIMANTS’ CONDUCT, FAILURE TO COMPLY WITH PRE-ACTION PROTOCOL AND EFFECTIVE REFUSAL TO MEDIATE LEADS TO NO ORDER FOR COSTS
Here we have a case where the claimants were (largely) successful but the court made no order for costs between the parties. There were three major factors (i) the way in which the claimants conducted the action; (ii) the failure…
COST BITES 339: SOLICITOR’S ATTEMPT TO OVERTURN A DECISION OF THE LEGAL OMBUDSMAN WAS UNSUCCESSFUL: IT WAS ENTITLED TO ORDER REPAYMENT OF ALL THE FEES IN ADDITION TO £50,000 COMPENSATION
There are many lessons to learn from this case: (i) the nature, extent and power of the Legal Ombudsman; (ii) the importance of transparency and accuracy when giving an estimate as to fees, particularly in litigation (iii) the very limited…
COST BITES 338: COURT AWARDS THE DEFENDANT INDEMNITY COSTS: THE CLAIMANT’S HAD AN “ENTIRELY, UNREASONABLE AND ALMOST IRRATIONAL APPROACH TO THIS LITIGATION”
We have looked many times at cases where the courts have considered whether or not costs should be awarded on an indemnity basis. I do not recall a judgment where the judge has decided this issue so emphatically. There were…
COST BITES 337: CLAIMANT FAILS IN ATTEMPTS TO ARGUE “SPECIAL CIRCUMSTANCES” UNDER THE SOLICITORS ACT
A client has a limited amount of time to challenge a solicitor’s bill. If the bill is challenged 12 months after delivery or payment then the power to order assessment can only be exercised if the court accepts that there…
AVOIDING THE PITFALLS: PROCEDURAL DEFAULT, SANCTIONS AND OTHER ISSUES THAT CAUSE ACTIONS TO FAIL: WEBINAR 6th FEBRUARY 2026: REMEMBER WE LOOK AT THESE PROBLEMS TO TRY TO MAKE SURE YOU DON’T HAVE THEM
The next webinar in the “Avoiding the Pitfalls” series is a 90 minute long webinar on the 6th February 2026. The webinar examines the most common procedural problems and practical difficulties that arise in civil litigation. It explores where and…
COST BITES 336: MOST OF THESE THINGS ARE NOT “SIGNIFICANT DEVELOPMENTS” AND DO NOT JUSTIFY A VARIATION IN THE BUDGET: THE JUDGE NOT PERSUADED ON THE USE OF LEADING COUNSEL, NEW SOLICITORS WITH HIGHER HOURLY RATES AND THINGS MISSED FROM THE FIRST BUDGET
Here we have a detailed analysis of a defendant’s application to vary (that is more than double) its original costs budget. At the PTR stage the defendant applied to double its costs budget, some of this was allowed, most was…
ONE OF THE PERILS OF OBTAINING AN INJUNCTION: AN INTERVENER GIVEN LIBERTY TO APPLY TO BRING A POTENTIAL CLAIM FOR DAMAGES CAUSED BY AN INJUNCTION: LITIGATORS MUST GIVE CAREFUL ADVICE…
A party seeking an injunction is usually required to give an undertaking as to damages. That undertaking normally extends to the defendants/respondents to the injunction. However the terms of the injunction often give third parties affected by the injunction a…
SHOULD A LOSING PARTY FACE THE NORMAL CONSEQUENCES OF FAILING TO BEAT A PART 36 OFFER? A REMINDER THAT THIS IS A HIGH HURDLE WITH A “FORMIDABLE BURDEN”
A litigant who fails to beat a Part 36 offer can normally expect to face the consequences set out in the rules. There is an exception if that litigant can satisfy the court that it is “unjust” for those consequences…
PART 36: DOES A JUDICIAL READING DAY COUNT IN THE CALCULATION OF “21 DAYS” ? WHAT A DIFFERENCE A (READING) DAY MAKES…
We have seen numerous cases on this blog where matters have been left the “last minute” and the rules as to the calculation of time become important. Here we have an interesting example in relation to Part 36. An offer…
COST BITES 335: DID FIXED COSTS APPLY? THE EXCEPTIONS, THE TRANSITIONAL PROVISIONS AND THE EFFECT OF PART 36 CONSIDERED
I am grateful to Aofie Murphy from Brabners for sending me a copy of this judgment this morning. It relates to fixed costs (i) the exceptions; (ii) the transitional provisions; (iii) whether a Part 36 offer displaced them. It has…
THE COURT REFUSES TO SET ASIDE A PEREMPTORY ORDER IN A SOLICITOR – CLIENT ACTION: LOTS TO LEARN HERE IN TERMS OF BOTH COSTS AND PROCEDURE
Here we are looking at a case that bristles with issues both in relation to solicitor and own client costs, but also in relation to civil procedure and compliance with court orders. It serves as a reminder that a client…
COST BITES 334: CAN A CLAIMANT OBTAIN INTEREST ON COSTS EVEN WHEN COSTS HAVE NOT BEEN PAID BECAUSE THE MATTER IS FUNDED BY USING A CONDITIONAL FEE AGREEMENT?
This case considers an interesting question as to costs. Should the court award the claimants interest on costs where, in fact, they have not incurred any costs because the matter is being conducted by using a CFA? “As a…
COST BITES 333: REMEMBER THE GENERAL RULE IS THAT DETAILED ASSESSMENT TAKES PLACE AT THE END OF PROCEEDINGS, NOT AFTER THE TRIAL OF A PRELIMINARY ISSUE
We are returning to a point that can easily be overlooked by a party that has been successful at a split trial or a trial of a preliminary issue. Although the court may make an order in that party’s favour,…
COST BITES 332 : COURT MAKES AN ORDER FOR INTERIM PAYMENT OF COSTS OF £43 MILLION – AND THIS IS AFTER TAKING A “CAUTIOUS APPROACH” TO THE CLAIMANTS’ EVIDENCE
This judgment given today contains a number of important points in relation to costs. The headline point is obviously an interim award of £43 million was made. This was actually less than 50% of the sum being sought. One of…
COST BITES 331: SOLICITOR FAILS TO SHOW THEY WERE OWED £573,529 IN COSTS: NEITHER A LIEN OR THE LEGAL AID CHARGE NECESSARILY GIVES RISE TO A DEBT FROM THE CLIENT
This is an unusual case where a third party challenged a solicitor’s right to be a creditor in an insolvency arrangement. The third party argued that the sums claimed by the solicitors were not in fact recoverable from the respondent. …
COST BITES: 330 THE ABSENCE OF A COSTS SCHEDULE DOES NOT MEAN THAT A SUCCESSFUL RESPONDENT IS GOING TO BE DEPRIVED OF THEIR COSTS
Here we have an interesting issue about whether the successful respondent to an appeal should be deprived of their costs because a costs schedule had not been filed. The appellant’s alternative argument was that the respondent should be ordered to…
BACK TO BASICS MONDAY: DO NOT MENTION A PART 36 OFFER TO THE TRIAL JUDGE BEFORE THE TRIAL(OR DURING IT FOR THAT MATTER…)
The first time I wrote on this topic many practitioners expressed surprise that I had written something so very “basic”. Some readers were incredulous. However, as we see below, others shared their experiences. This rule is not known, or not…
PART 36 IN THE COURT OF APPEAL TODAY: DIGGING DEEPER 3: SO WHY DID THE CLAIMANT LOSE? PLUS – THE STING IN THE TAIL FOR DEFENDANTS…
Earlier posts have shown that the claimant was successful on two of the key issues in relation to the appeal. However litigation can be cruel. A litigant can win on many issues but still lose the case. So it is…
PART 36 IN THE COURT OF APPEAL TODAY: DIGGING DEEPER 2: WAS AN OFFER ON LIABILITY EFFECTIVE IN THIS CONTEXT?
We continue with the detailed examination of the Court of Appeal decision on Part 36 this morning. This aspect of the case is particularly important because, again, although the claimant lost the appeal he won on this particular issue. That…
PART 36 IN THE COURT OF APPEAL TODAY: DIGGING DEEPER (1): WHAT IS THE DIFFERENCE BETWEEN A “JUDGMENT” AND AN “ORDER” ?
There are some interesting issues raised in the Court of Appeal decision on Part 36 today that every practitioner should be aware of. The case has been helpfully summarised by my colleague Elliot Kay here. I wanted to break down…
COURT OF APPEAL DECISION ON PART 36 THIS MORNING: AN OFFER OF 90% ON LIABILITY COULD POTENTIALLY HAVE PART 36 CONSEQUENCES WHEN A CLAIM IS APPROVED ON DAMAGES (BUT DID NOT IN THIS CASE).
I am grateful to my colleague Elliot Kay for sending me a note of a Court of Appeal decision on Part 36 given this morning. The issue relates to Part 36 offers on liability where the matter is compromised and…
COST BITES 329: THE COURT’S APPROACH TO INTERIM PAYMENTS ON COSTS THAT ARISE FROM APPLICATIONS AND CLAIMS FOR “OVERSPENDS” – COSTS OUTSIDE THE BUDGET
Some of the basic principles upon which the courts make orders for interim payments are well established, particularly when the case has been budgeted. This case considers the appropriate approach when there is a claim for costs arising from interlocutory…
COST BITES 328: A CAREFULLY NUANCED DECISION ABOUT LIABILITY FOR COSTS, INTERIM PAYMENTS FOR COSTS, INCLUDING COSTS OUTSIDE THE BUDGET
The question of “who won” is usually the starting point of assessing liability to pay costs. Complications arise when one party “won a bit” but not all it was seeking. We have a detailed consideration of these issues here. (Whether…
COST BITES 327: THE COSTS OF FILING AN ERRANT REPLY CONSIDERED: AN APPLICATION PURSUED “AGGRESSIVELY” – COSTS REDUCED TO 10% OF THOSE CLAIMED
Here we have the defendant making a justified, and successful, application to strike out a Reply. However the judge was unhappy with the manner in which the application (and the litigation generally) was being conduced (by both sides). He found…
COST BITES 326: DEFENDANT SUCCESSFUL IN OBTAINING A NON-PARTY COSTS ORDER: FARES FAIR IN THE BUS STATION CASE…
This judgment today is an interesting illustration of the fact that those providing support to a party can find themselves the subject of a non-party costs order. In this case the claimant company was in liquidation. The respondents to the…
COST BITES 325: DOES THE FACT THAT THERE WOULD BE COMPLEX ISSUES ON DETAILED ASSESSMENT MEANT THE COURT SHOULD NOT MAKE AN ORDER FOR PAYMENT OF COSTS ON ACCOUNT?
The rules, and often the courts, are keen to encourage payments on account of costs. They have advantages to both parties. The receiving party receives a large percentage of costs promptly, the paying party reduces the amount of interest that…
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