CIVIL PROCEDURE AND COSTS: BLOG AND ARTICLES ROUND UP – JANUARY 2020
Links and articles to blog posts and articles available online in January 2020 Costs Costs Barrister Conditional fee agreements and contentious business agreements Association for Costs Lawyers Oversight regulator praises CLSB’s “considerable progress” Association for Costs Lawyers Offer acceptanc… Enjoying this post? Become…
A BAD DAY IN COURT FOR THE CLAIMANT’S SOLICITORS: COMPLICATED, OH SO COMPLICATED CFA AGREEMENTS: BREACHES OF THE INDEMNITY PRINCIPLE AND MISCONDUCT ON ASSESSMENT: AGREEMENTS “SO DARKLY PENNED AS TO BE INCOMPREHENSIBLE”
The judgment of Deputy Master Friston in Anthony v Collins [2020] EWHC B14 (Costs) makes for interesting reading. A highly complex series of conditional fee agreements were held to be in breach of the indemnity principle. There are important lessons…
ARGUMENT THAT FIXED COSTS APPLIED GETS A BUMPY RIDE: PROTOCOL DOES NOT APPLY TO HIGHWAYS CASE
I am grateful to barrister James Bentley for drawing my attention to the judgment in Bateman v Devon County Council (HHJ Mitchell, Plymouth County Court, 2nd September 2019) in which it was decided that fixed costs did not apply to a…
PERSONAL INJURY CASES WHERE THE DEFENDANT IS NOT INSURED AND HAS NO ASSETS: LOOK TO THE CLAIMANT’S OWN INSURANCE POLICY
Periodically I repeat the second ever post on this blog. This related to the (surprising to many) fact that it may be possible for a claimant with an unsatisfied judgment to recover damages from their own domestic insurance policy. …
CIVIL PROCEDURE AND COSTS: BLOG AND ARTICLES ROUND UP – DECEMBER 2019
Links and articles to blog posts and articles available online from December 2019. Costs Costs Barrister Cash flow and catastrophic personal injury litigation Costs Barrister Fixed costs and translation fees Association for Costs Lawyers Court can order costs in foreign…
2019 AND CIVIL PROCEDURE – A ROUND UP OF THE ROUND UPS: WHAT TO FRET ABOUT AND WHAT NOT TO FRET ABOUT…
There have been a series of annual reviews on key topics throughout December. To round off the year it seemed a good idea to provide a reminder of them all and put the links in one place 2019 AND CIVIL…
2019 AND CIVIL PROCEDURE THE YEAR IN REVIEW: COMMITTAL PROCEEDINGS: “THE KANGAROO COURTS OF THE JUSTICE SYSTEM”
In January I wrote “I am starting to lose count of the number of times the Court of Appeal has overturned decisions committing people to prison because of very basic and fundamental failures of procedure. It is as though all…
2019 AND CIVIL PROCEDURE THE YEAR IN REVIEW: COSTS BUDGETING
This year has been relatively quiet on the costs budgeting front. There have been some rule changes and two cases which highlight how difficult it is to appeal a costs budgeting decision. JULY:AN OFFER AS TO COSTS DOES NOT BECOME…
APPEALING A PROVISIONAL ASSESSMENT IS NOT A JAMBOREE: APPELLANT HAS TO STATE WHAT THEY ARE APPEALING AND HEARING IS CONFINED TO THOSE MATTERS
In PME v The Scout Association [2019] EWHC 3421 (QB) Mr Justice Stewart upheld the decision of Master Leonard in relation to the scope of an appeal from a costs officer. “The consequences of the Appellant’s case are wholly undesirable….
COSTS AGAINST A NON-PARTY: THE PRINCIPLES CONSIDERED AND APPLIED
I am grateful to Colm Nugent for sending me a copy of the decision of Veronique Buehrlen Q.C in Rubiera -v- Building & Handyman Group Ltd (13th December 2019). It relates to a non-part costs order being made against a…
CIVIL PROCEDURE BACK TO BASICS 75: COSTS BUDGETING: COUNSEL’S BRIEF FEE NOW PART OF THE TRIAL PREPARATION PHASE
Judging from the reaction of my opponent (and the judge) at a CCMC I attended today a change in the rules introduced on 1st October 2019 could benefit from wider publication. On the 1st October 2019 Counsel’s brief fee is…
CLAIMANT DISCONTINUES – BUT NO ORDER FOR COSTS: THE PRINCIPLES CONSIDERED
In Sheinberg v Abdon & Ors [2019] EWHC 3220 (Ch) Master Clark decided that there should be no order for costs after a claimant discontinued his case. The conduct of the defendants was a highly relevant factor. “The amount involved…
GETTING AWAY FROM THE PROTOCOL: MEANING OF “HARM”, “VULNERABLE ADULT” AND THE REASONABLE VALUATION OF A CLAIM AT MORE THAN £25,000
In Scott v Ministry of Justice [2019] EWHC B13 (Costs) Deputy Master Friston considered whether a case fell outside the fixed costs regime of the Employers Liability Protocol as a result of the identity of an assailant. It transpired that…
ARGUE A WEAK CASE ON EACH AND EVERY POINT, GET INDEMNITY COSTS AWARDED AGAINST YOU
In Suez Fortune Investments Ltd & Anor v Talbot Underwriting Ltd & Ors [2019] EWHC 3300 (Comm) Mr Justice Teare held that a claimant, who had pursued a weak case in a robust manner, should pay indemnity costs. There is…
PART 36: A SUCCESSFUL LITIGANT CAN BE BULLISH: CLAIMANT BEATS ITS OWN PART 36 OFFER AND THERE WAS NOTHING UNJUST IN THE DEFENDANT PAYING THE PRICE
In Kivells Ltd v Torridge District Council [2019] EWHC 3210 (TCC) the claimant beat its own Part 36 offer (by a fair margin). HHJ Russen QC rejected the defendant’s argument that it would be unjust to apply the normal Part…
A CASE THAT SHOULD BE READ BY EVERY LAWYER WHO BILLS CLIENTS: CLAIM £84,000 – GET £8,000: PROVIDE ADEQUATE ESTIMATES OF COSTS OR ELSE…
The judgment of Master Leonard Dunbar v Virgo Consultancy Services Ltd [2019] EWHC B12 (Costs) provides an object lesson as to why lawyers must give a full and proper estimate of costs to their clients. The defendant solicitor sought £84,ooo…
WHY FAILING IN A SUMMARY JUDGMENT APPLICATION CAN BE EXPENSIVE: (£1,015,722 – EXPENSIVE)
In BTI 2014 LLC v Pricewaterhousecoopers LLP & Anor [2019] EWHC 3219 (Ch) Mr Justice Fancourt considered the appropriate order for costs when a defendant failed in an application for summary judgment. The defendants were ordered to pay the costs…
IS A CONDITIONAL FEE AGREEMENT A CONTENTIOUS BUSINESS AGREEMENT? WELL, IT DEPENDS… (& IT HAS CONSEQUENCES)
In Healys LLP v Partridge & Anor [2019] EWHC 2471 (Ch) Kelyn Bacon QC, sitting as a Deputy High Court Judge, considered the issue of whether a conditional fee agreement was a contentious business agreement. This has practical consequences in…
UNWARRANTED FRAUD ALLEGATION LEADS TO INDEMNITY COSTS BEING AWARDED
In Natixis SA v Marex Financial & Ors [2019] EWHC 2549 (Comm) an award of indemnity costs was made against a party who had alleged fraud all the way up to closing submissions. It highlights the dangers of pleading fraud…
FIXED COSTS NOT OVERTURNED BY THE TERMS OF AN AMBIGUOUS PART 36 OFFER: COURT OF APPEAL DECISION TODAY
In the judgment today in Ho v Adelekun [2019] EWCA Civ 1988 the Court of Appeal held that fixed costs still applied to a case where an offer of settlement did not expressly refer to costs being fixed. “…parties who…
AN UNSUCCESSFUL APPEAL ON A COSTS BUDGETING DECISION: SHOULD A QC BE ALLOWED – OR IS THAT A LEADING QUESTION?
The case of Easteye Ltd v Malhotra Property Investments Ltd & Ors [2019] EWHC 2820 (Ch) is unusual in that it is an appeal against a costs budgeting decision. Nugee J refused the claimant’s appeal against the District Judge’s decision…
CLAIMANT BEATS ITS OWN PART 36 OFFER: DEFENDANT PAYS THE PRICE: OFFER BEATEN BY £4,800 LEADS TO DEFENDANT PAYING AN ADDITIONAL £65,000 – & INDEMNITY COSTS, & ADDITIONAL INTEREST…
In Hochtief (UK) Construction Ltd & Anor v Atkins Ltd [2019] EWHC 3028 (TCC) Mrs Justice O’Farrell considered the consequences of a claimant being its own Part 36 offer. The claimant beat its own offer by a small amount but…
APPLYING FOR DISPENSATION FROM COURT FEES: TWO DIFFERENT CASES
I am grateful to my colleague Paul Hughes for sending me a copy of the judgment of District Judge Jenkinson in the case of Stone -v- Allianz Insurance PLC where Paul acted for the defendant. This, and the case of…
RELIEF FROM SANCTIONS: CANDOUR FROM THE APPLICANT AND NO EVIDENCE FROM THE DEFENDANT TO PROVE PREJUDICE
There is a report of a case where relief from sanctions was granted in Anglia Autoflow North America LLC and Another v Anglia Autoflow Ltd [2019] Costs LR 155. One thing that marks this case is the total candour from the…
INSURER NOT LIABLE TO PAY CLAIMANTS’ COSTS: TRAVELERS INSURANCE DECISION OVERTURNED BY THE SUPREME COURT
In the judgment today in Travelers Insurance Company Ltd v XYZ [2019] UKSC 48 the Supreme Court held that the insurer was not liable to pay the costs of those claimants who had proceeded (unknowingly) against uninsured defendants. This is…
CLAIMANT’S LATE ACCEPTANCE OF PART 36 OFFER: UNCERTAINTY OF FUTURE OUTCOME NOT GROUNDS FOR MAKING A DIFFERENT COSTS ORDER
The judgment of Mrs Justice Lambert in Campbell -v- Ministry of Defence [2019] EWHC 2121 (QB) emphasises the difficulties for a claimant who has accepted a Part 36 offer late. The claimant had to bear the usual costs consequences and…
TRAWLING THROUGH THE CPR: FIXED COSTS CONSIDERED BY THE COURT OF APPEAL: COUNSEL’S FEES INCLUDED IN REGIME: CONSTRUING THE CPR AS A WHOLE
I am grateful to barrister Sarah Robson for sending me a copy of the judgment of the Court of Appeal today in Aldred -v- Cham [2019] EWCA Civ 1780. It is one of those occasions where the Court of Appeal…
CONDITIONAL FEE AGREEMENT IS ENFORCEABLE AFTER DEATH: HIGH COURT JUDGMENT TODAY
In Higgins & Co Lawyers Ltd -v- Evans [2019] EWHC 2809 (QB) Mr Justice Pushpinder Saini overturned a decision that a conditional fee agreement was not enforceable after death. THE CASE The deceased had signed a CFA agreement with the…
COURT HAS JURISDICTION TO MAKE AN INTERIM ORDER AS TO COSTS AFTER CLAIMANT HAS ACCEPTED A PART 36 OFFER: COURT OF APPEAL DECISION TODAY
In Global Assets Advisory Services Ltd & Anor v Grandlane Developments Ltd & Ors [2019] EWCA Civ 1764 the Court of Appeal confirmed that the court can make an interim order for costs after a claimant has accepted a Part…
A CRI DE COEUR FOR MORE MONEY WON’T GET YOU AN INTERIM PAYMENT ON ACCOUNT OF COSTS: MASTER EMPHASISES THE NEED FOR HARD EVIDENCE
In RXK v Hampshire Hospitals NHS Foundation Trust [2019] EWHC 2751 (QB) Master Cook made some important observations about the quality of evidence needed to obtain an interim order for costs in an ongoing case. (The judgment in X -v-…
QOCS IN “MIXED “CASES: THE COURT OF APPEAL SPEAKS
In the judgment today in Brown v Commissioner of Police of the Metropolis & Anor [2019] EWCA Civ 1724 the Court of Appeal considered the issue of QOCS in “mixed cases”. The judgment requires careful reading. Generally speaking all personal…
THE BACK TO BASICS SERIES: A RUNNING ACCOUNT: READ THEM ALL HERE
The “Back to Basics” series, as the title suggests, deals with some of the basic elements of civil procedure. It covers everything from applications and bundles to the taking of witness statements. The titles are often prompted by elements…
COUNSEL’S FEE RECOVERABLE IN A £70,000 CASE STILL SUBJECT TO THE FIXED COSTS PROVISIONS: DECISION TODAY
In Dover v Finsbury Food Group Plc [2019] EWHC B11 (Costs), Master Brown found that counsel’s fees can be recovered in a case that had been placed in the portal that subsequently settled for £70,000. THE CASE The claimant was…
DISTRICT JUDGE SHOULD NOT HAVE “PARTIALLY” RECUSED THEMSELVES: THINGS THAT SHOULD NEVER HAVE BEEN IN A WITNESS STATEMENT: A VERY INTERESTING ASSESSMENT OF COSTS…
I am grateful to Simon Fisher from DWF for providing me a copy of the judgment in Akers -v- Kirlkland [2019] EWHC 2176 (QB) Mr Justice Waksman discussed, in detail, the circumstances in which a judge should recuse themselves and…
SUMMARY ASSESSMENT AND HOURLY RATES: “SOLICITORS PROVIDING SUCH SKILL AND EXPERTISE ARE ENTITLED TO CHARGE THE MARKET HOURLY RATE FOR THEIR AREA OF PRACTICE”
In Ohpen Operations UK Ltd v Invesco Fund Managers Ltd [2019] EWHC 2504 (TCC) Mrs Justice O’Farrell carried out a summary assessment of costs. She also had something to say in relation to hourly rates. There is a succinct review…
COURT OF APPEAL REFUSES APPEAL AGAINST ORDER FOR INDEMNITY COSTS: PARTIES WHO ARE JOINED TO A SPECULATIVE ENTERPRISE IN LITIGATION SHOULD EVALUATE THEIR POSITION WITH CARE
In Ford & Anor v Bennett & Anor [2019] EWCA Civ 1604 the Court of Appeal dismissed an appeal against a trial judge’s decision to award indemnity costs. The judgment contains a lesson to “additional parties” to litigation. “Parties who…
SOLICITORS WHO ARE REPRESENTED AT COURT TO PROTECT LEGAL PROFESSIONAL PRIVILEGE ISSUES ARE ENTITLED TO THEIR COSTS
One other aspect of the decision in Addlesee & Ors v Dentons Europe LLP [2019] EWCA Civ 1600 that is worth looking at is the appeal in relation to costs. The Court of Appeal rejected the appellants argument that the…
ELECTRONIC WORKING IN THE SENIOR COURTS COSTS OFFICE: USEFUL LINKS
The Electronic Working Pilot Scheme in the Senior Courts Costs Office comes into force on the 7th October. There are some useful links on the working of the sceme. USEFUL LINKS A summary on the Courts and Tribunal Judiciary website …
QUICK REMINDER OF NEW COSTS BUDGETING RULES COMING INTO FORCE TODAY: INCURRED COSTS INCLUDE THE COSTS OF THE CCMC
Part of the 109th update to the Civil Procedure Rules came into force today. A quick reminder that, from today, there is a change in the way that the courts approach the costs of the CCMC itself. INCURRED COSTS…
COURT OF APPEAL TO CONSIDER IMPACT OF TRANSFERRING CASE FROM LEGAL AID TO CFA:
I am grateful to Tom Jenkinson from Bolt Burdon Kemp for letting me know that the Court of Appeal has granted permission to appeal in the case of XDE v North Middlesex University Hospital Trust [2019] EWHC 1482 (QB) XDE…
INTERIM PAYMENTS ON ACCOUNT OF COSTS: A RECENT EXAMPLE AND USEFUL LINKS
“Cashflow is the lifeblood of business”, is a common maxim. This applies in the legal profession as much as anywhere else. Interim payments on account of costs is an important issue for litigators and their clients. This was considered in…
PAYING EXPERT’S FEES: INFORMING AN EXPERT THAT A HEARING IS CANCELLED AND – GETTING STRUCK OFF THE ROLL OF SOLICITORS …
The judgment in the case of Clegg v Solicitors Regulation Authority [2019] EWHC 2408. A solicitor was struck off, in circumstances that could easily have been avoided. It required the simple step of informing an expert that a trial had…
CIVIL PROCEDURE BACK TO BASICS 60: INTERIM ORDERS ON ACCOUNT OF COSTS: “CASH FLOW IS THE LIFEBLOOD OF BUSINESS”
Here we look at the rules relating to interim orders on account of costs, a subject of considerable importance in relation to practitioner’s cash flow and client’s pockets. CPR 44.2(8) “(8) Where the court orders a party to pay costs…
DE MINIMIS BREACH OF RULES DID NOT LEAD TO PART 36 OFFER BEING INVALID
In Momonakaya v the Ministry of Defence [2019] EWHC 480 (QB) HHJ Blair QC considered whether a claimant had properly accepted a Part 36 offer. It was held that an offer that breached the rules in a de minimis way was…
AN OFFER TO SETTLE FOR NO DAMAGES CAN STILL BE A VALID PART 36 OFFER: APPEAL AGAINST NO ORDER FOR COSTS ALLOWED (IN PART)
In MR v Commissioner of Police for the Metropolis [2019] EWHC 1970 (QB) Mrs Justice McGowan allowed an appeal as to costs in a issue relating to Part 36. She held that the trial judge had erred in making no…
WHY IT IS IMPORTANT LITIGATORS KNOW HOW TO COMPUTE TIME PROPERLY: 7 DAYS MEANS 7 DAYS: APPLICATION TWO DAYS LATE: CLAIMANT COMES TO GRIEF
In Evans v Pinsent Masons LLP [2019] EWHC 2150 (QB) Mr Justice Martin Spencer overturned a decision granting relief from sanctions. A major issue arose out of confusion by the claimant’s solicitors over the calculation of the time period. This…
“YOURS IS BIGGER THAN MINE”: COMPARISON OF COSTS NOT ALWAYS APPROPRIATE
In Monex Europe Ltd v Pothecary & Anor [2019] EWHC 2204 (QB) Clive Sheldon QC (sitting as a Deputy High Court Judge) did not accept an argument that the fact that defendants’ costs were much higher than the claimant’s figures…
WEBINAR ON THE 25th SEPTEMBER 2019: COURT FEES: AVOIDING THE PITFALLS
On the 25th September at 1.pm, I am giving a webinar “Court fees: Avoiding the pitfalls – fees, fee remission, abuse of process and striking out”. The webinar deals with practice and procedure relating to court fees, including failure to…
NO COSTS ORDER AGAINST SOLICITORS OR COUNSEL WHO WERE ACTING ON A CONDITIONAL FEE BASIS
In Willers v Joyce & Ors [2019] EWHC 2183 (Ch) Lady Justice Rose dismissed an application for costs against solicitors and counsel who had represented an unsuccessful party on a conditional fee basis. “… there is a strong public interest…
SUCCESSFUL APPEAL OF A DECISION NOT TO PROVIDE COURT FEE REMISSION: GUIDANCE ON HOW TO APPEAL REFUSAL TO GRANT REMISSION
I am grateful to solicitor Anthony McCarthy for sending me brief details of a successful appeal against a decision refusing remission of court fees. Anthony states that successful appeals are very rare. ANTHONY’S NOTE ON THE APPEAL Fee was £10k…
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