APPLICATION FOR EXTENSION OF TIME FOR DETAILED ASSESSMENT PROCEEDINGS REFUSED:
There are many lessons that litigation lawyers can learn from the judgment of Master Leonard in Rattan v Carter-Ruck Solicitors [2019] EWHC B9 (Costs). It is a case where a client agreed to a settlement and then, essentially, sought to…
WHEN YOU ARE CHALLENGING A PROVISIONAL ASSESSMENT “BE PREPARED”: MASTER FINDS THAT COURT COSTS OFFICERS DO HAVE JURISDICTION TO CONDUCT PROVISIONAL ASSESSMENTS: THE LIMITED SCOPE OF AN APPEAL FROM A PROVISIONAL ASSESSMENT
I am grateful to my colleague Robin Dunne for sending me a copy of the decision of Master Leonard in PME -v- The Scout Association (30/07/2019). 1. JUDGMENT PME (003). This deals with two issues (i) the jurisdiction of…
FIXED COSTS: APPLY TO DEFENDANTS AS WELL: SAUCE FOR THE GOOSE AND THE GANDER
I am grateful to John McQuater for sending me a copy of consent order made in the Court of Appeal. The Court allowed an appeal, by consent, that the defendant to certain applications was only allowed fixed costs in an…
CLAIMANT’S PART 36 “SUBJECT TO A NIL CRU” WAS A VALID OFFER: IF THE DEFENDANT WAS CONFUSED THEY SHOULD HAVE SOUGHT CLARIFICATION
The judgment of District Judge Hickinbottom in Gibbons -v- Rotherham Doncaster and South Humber NHS Foundation Trust (o4/06/2019), discussed in an earlier post, also has an interesting section in relation to a Part 36 offer. “It seems to me the Defendant could…
CASE FALLING OUTSIDE THE FIXED COSTS REGIME: ASSAULT BY A VULNERABLE ADULT: REPORT OF A FIRST INSTANCE DECISION: FIXED COSTS DO NOT APPLY
I am grateful to solicitor John McQuater for sending me a copy of the judgment of District Judge Hickinbottom in Gibbons -v- Rotherham Doncaster and South Humber NHS Foundation Trust (o4/06/2019). It concerns the question of whether an assault by…
RECOVERING THE COST OF ATTENDING THE INQUEST: MUST BE BOTH RELEVANT AND PROPORTIONATE (BUT PROPORTIONALITY IS NOT JUST ABOUT MONEY)
The judgment today in Fullick & Ors v The Commissioner of Police for the Metropolis [2019] EWHC 1941 (QB) deals with the, often challenging, question of whether the costs of attending an inquest is recoverable in cases where the claimant…
COURT REFUSES TO MAKE ORDER THAT A DEFENDANT DISCLOSES FUNDING ARRANGEMENTS
In Rudd v Bridle & Anor [2019] EWHC 1986 (QB) Mr Justice Warby refused a claimant’s application for disclosure of the defendants’ funding arrangements. “Beyond this is the common-sense point, that the Court will not be keen to allow…
NO YOU ARE NOT GOING TO RECOVER £25,000 FOR LEADING COUNSEL TO ATTEND A LOW LEVEL HEARING – NOT EVEN ON AN INDEMNITY BASIS: COURT OF APPEAL DECISION
In Timokhina v Timokhin [2019] EWCA Civ 1284 the Court of Appeal overturned an order that a mother pay counsel’s fees of certain hearings. The judgment is interesting in that costs were disallowed (inter partes) as unreasonable even when the…
PROPORTIONALITY AND PREMIUMS IN CLINICAL NEGLIGENCE CASES: COURT OF APPEAL JUDGMENT TODAY
In West -v- Stockport NHS Foundation Trust [2019] EWCA Civ 1220 the Court of Appeal considered the question of proportionality in relation to clinical negligence actions and the “recoverable” element of ATE insurance. I am grateful to Sean Linley for…
APPEAL ON COSTS BUDGETING : CLAIMANT’S APPEAL UNSUCCESSFUL: AN OFFER AS TO COSTS DOES NOT BECOME THE BENCHMARK FIGURE
In Gray v Commissioner of Police for the Metropolis [2019] EWHC 1780 (QB) Mr Justice Lambert dismissed the claimant’s appeal from cost budgeting decisions. The judgment contains important observations about the nature of cost budgeting hearings and appeals on…
PROPORTIONALITY: SHOULD HINDSIGHT BE A FACTOR? EXTRACTS FROM O’HARE AND BROWNE ON CIVIL LITIGATION (YOU SAW IT HERE FIRST…)
I am grateful to John O’Hare for sending me an extract from the next edition of O’Hare and Browne on Civil Litigation (19th edition). It deals with proportionality and, in particular, whether hindsight should be a factor in assessing proportionality. …
CIVIL PROCEDURE BACK TO BASICS 53A: PART 36 AND COSTS AFTER THE COURT HAS LIMITED THE BUDGET TO COURT FEES: ALI -v-CHANNEL 5
Shortly after I completed the post on Part 36 offers after the costs budget has been confined to court fees Professor Dominic Regan reminded me that there is another example in Ali & Anor v Channel 5 Broadcast Ltd [2018] EWHC…
CIVIL PROCEDURE BACK TO BASICS 53: PART 36 AND COSTS AFTER THE COURT HAS LIMITED THE BUDGET TO COURT FEES
This may be an ambitious subject for the back to basics series. However here I want to look at the situation where a party has failed to file their costs budget timeously and the budget has been confined to court…
CIVIL PROCEDURE BACK TO BASICS 51: BULLOCK AND SANDERSON ORDERS: COSTS WHERE THERE ARE MULTIPLE DEFENDANTS
When writing the previous post about a Bullock order it struck me that there may be some people not quite certain of what a “Bullock order ” or “Sanderson order” is. This gives rise to a need to explain those…
THE TRIAL JUDGE COULD SAY BULLOCKS TO THE COST ORDER: ON APPEAL, HOWEVER, THE CLAIMANT SHOULD NOT HAVE BEEN SO BULLISH
In Fouladi v Darout Ltd & Ors [2019] EWHC 1674 (Ch) Mr Justice Henry Carr refused an appeal against the making of a “Bullock” order in relation to the costs of a fourth defendant. The claimant, however, was not successful…
PART 36 OFFER WAS NOT AN EFFECTIVE ONE AND DEFENDANT HAD TO PAY COSTS
In Bull v Desporte [2019] EWHC 1669 (QB) Mr Justice Knowles rejected the defendant’s argument that a Part 36 offer meant that she did not have to pay costs. THE CASE The claimant succeeded in an action for misuse of…
INTERIM PAYMENT ON ACCOUNT OF COSTS: REASONS FOR REFUSING PERMISSION NOW AVAILABLE ON LINE
I wrote on the judgment in I – interim payment of costs. in an earlier post . I subsequently wrote that the defendant had been refused permission to appeal. The reasons are available on the Switalskis website, here. ” it seems entirely…
CIVIL PROCEDURE BACK TO BASICS 50: THE POSTS SO FAR
The “back to basics” series has been going since April 2018. It has covered a surprising amount of topics. From how to draft an application to “litigation wishful thinking”. Some people have expressed surprise and how “basic” some points are…
RULE CHANGES (109): ELECTRONIC FILING, INCURRED COSTS AND THE CCMC, SMALL CLAIM HEARINGS IN PRIVATE
We are now on the 109th update to the Civil Procedure Rules. The three points I want to look at in particular are: mandatory electronic filing in the QBD; the costs of the CCMC being clearly categorised as incurred costs;…
INTERIM PAYMENT ON ACCOUNT OF COSTS: PERMISSION TO APPEAL REFUSED BY THE COURT OF APPEAL
I wrote on the judgment in I – interim payment of costs. in an earlier post. An article on the Switalskis website today states that the Court of Appeal refused the defendant’s application for permission to appeal.( I know that the…
CLAIMANT SUCCESSFUL IN APPEAL IN RECOVERING ADDITIONAL 10% IN DAMAGES WHEN OWN OFFER WAS BEATEN: THE ADDITIONAL AWARD SHOULD NOT BE CATEGORISED AS A “BONUS”
In JLE v Warrington & Halton Hospitals NHS Trust Foundation Trust [2019] EWHC 1582 (QB) Mr Justice Stewart overturned an order of the Master who declined to award the claimant an additional 10% in costs when they had beat their…
AN OFFER THAT IMPOSES A CONDITION AS TO COSTS IS NOT A VALID PART 36 OFFER: MERE FAILURE TO ACCEPT REASONABLE OFFER DOES NOT LEAD TO INDEMNITY COSTS
In Knight & Anor v Knight & Ors (Costs) [2019] EWHC 1545 (Ch) HHJ Paul Matthews (sitting as a High Court Judge) held that an offer that attempted to limit costs was not a valid Part 36 offer. The judge…
APPEAL AGAINST DISPROPORTIONAL COSTS FAILS: REASONABLE TO USE LEADING COUNSEL IN A £25,000 CLAIM
In East Sussex Fire And Rescue Service v Austin [2019] EWHC 1455 (QB) Mrs Justice Lambert dismissed the defendant’s (paying party) appeal. The defendant argued that costs were disproportional, that the use of leading counsel was unreasonable – as was…
COSTS & CASH FLOW: PAYMENT ON ACCOUNT PART WAY THROUGH AN ACTION: INTERIM PAYMENTS AND COST EFFECTIVE CONDUCT OF LITIGATION (ITS THE POST OFFICE CASE AGAIN)
The one certainty in litigation at the moment is that the Bates -v- Post Office case is going to keep providing plenty of material on evidence, procedure and costs. We see this in the judgment Bates & Ors v Post…
PROPORTIONALITY: A WARNING AGAINST A “CLIENT-CENTRIC” APPROACH: £74,000 REDUCED TO £15,000: HIGH COURT CASE ON APPEAL
In Malmsten v Bohinc [2019] EWHC 1386 (Ch) Mr Justice Marcus Smith allowed a paying party’s appeal in an assessment and reduced a bill from £74,328.90 to £15,000. There is a detailed consideration of how the proportionality test should be…
COSTS AGAINST CHILDREN AND LITIGATION FRIENDS: COURT HAS A DISCRETION TO ORDER COSTS AGAINST CHILD LITIGANTS
In the judgment today in Barker v Confiànce Ltd & Ors [2019] EWHC 1401 (Ch) Mr Justice Morgan considered whether costs could be ordered against child claimants and/or their litigation friend. He found that no special principles apply to prevent…
MASTER ENTITLED TO STRIKE OUT UNPARTICULARISED GROUNDS OF DISPUTE IN SOLICITOR AND OWN CLIENT ASSESSMENT: BE PARTICULAR OR ELSE…
In Ainsworth -v- Stewarts Law LLP [2019] EWCA Civ 897 HHJ Klein (sitting as a High Court judge) dismissed an appeal against an order dismissing a former client’s challenge to work done on documents. The Master held that the claimant’s…
PART 36 OFFER ON HOURLY RATE WAS VALID: HOWEVER INJUSTICE TEST MEANT CLAIMANT WOULD NOT RECOVER AN ADDITIONAL AMOUNT: MERE GAMESMANSHIP SHOULD BE AVOIDED
In White & Anor v Wincott Galliford Ltd [2019] EWHC B6 (Costs) Deputy Master Friston considered the effect of a Part 36 offer on the hourly rates to be applied on an assessment of costs. It was held that the…
A CAVALCADE OF COSTS CASES: HOLIDAY READING: SOMETHING TO CHEER UP COST LAWYERS OVER THE BANK HOLIDAY WEEKEND…
A number of costs cases have arrived on BAILLI all are decisions of Master Rowley relating to costs. EXCLUDING INTEREST ON COSTS MEANS THAT THIS IS NOT A PART 36 OFFER Ngassa v The Home Office & Anor [2018] EWHC…
APPELLANT’S COSTS OF APPEAL WERE “MANIFESTLY UNREASONABLE” : COURT OF APPEAL REDUCES £71,072 SCHEDULE TO £13,000
A short postcript to the Court of Appeal judgment in Jofa Ltd & Anor v Benherst Finance Ltd & Anor [2019] EWCA Civ 899 makes some telling remarks about the cost of appeals. “the amount of costs claimed by the…
PROVING THINGS 150: CLAIMANT FAILS TO ESTABLISH THAT THE MOVE FROM LEGAL AID TO CONDITIONAL FEE AGREEMENT WAS A REASONABLE STEP
In YZ v Gloucestershire Hospitals NHS Foundation Trust [2019] EWHC B4 (Costs) Master Gordon-Saker found that the claimant had not established good grounds for changing from legal aid to a conditional fee agreement. Although this is a costs issue, it…
REASONABLE COSTS WERE PROPORTIONATE: MORE THAN MONEY AT STAKE – COSTS NOT REDUCED
In Various Claimants (In Wave 2 of the Mirror Newspapers Hacking Litigation) v MGN Ltd[2018] EWHC B19 Master Saker had to consider the issue of proportionality of costs directly, and held that – on the facts of that case -…
TALES FROM THE APIL CONFERENCE 4: TIME ESTIMATES FOR HEARINGS (AND WHY YOU SHOULD VISIT KINGSTON UPON HULL)
There were difficult choices to be made when delegates selected their particular lectures at the recent APIL conference. In a show of northern solidarity (and because I am interested in these kind of things) I went to see District Judge…
COSTS, COSTS LAWYERS, RESERVED AND UNRESERVED ACTIVITIES: PAYING PARTIES’ ARGUMENTS LARGELY UNSUCCESSFUL
In Allen v Brethertons LLP [2019] EWHC B3 (Costs) Master Leonard determined that the work done by a cost lawyer, and the team working with her, were recoverable costs. I am grateful to Mark Carlisle for drawing my attention to…
DEFENDANT’S PART 36 OFFER WAS VALID: COURT OF APPEAL UPHOLD OFFER THAT REFERRED TO UNPLEADED COUNTERCLAIM AND SOUGHT 8% INTEREST AFTER EXPIRY
In Calonne Construction Ltd v Dawnus Southern Ltd [2019] EWCA Civ 754 the Court of Appeal upheld a finding that a defendant’s Part 36 offer was a valid one. The offer related to a counterclaim that had yet to be…
COURT COULD NOT GO OUTSIDE FIXED COSTS REGIME: HOWEVER AN ORDER SEEKING INDEMNITY COSTS IS NOT AN “INTERIM” APPLICATION
I am grateful to Matthew Hoe from Taylor Rose for sending me a copy of the judgment of Mrs Justice Carr in Parsa -v- D.S. Smith PLC (25th March 2019) Parsa v D.S. Smith PLC – Approved Judgment -…
NEW PRECEDENT R: STARTED TODAY (CONTAIN YOUR EXCITEMENT): USEFUL LINKS AND GUIDANCE
Credit to Costs Lawyer Jessica Swannell for reminding people on Linked In that the new Precedent R must be used from today. It is a good time to provide a link to the new form and some useful posts and…
A CASE WHERE LAWYERS BECOME RESPONDENTS TO THE ACTION WHERE A PARTY IS SEEKING TO RECOVER COSTS: ALSO WAIVING PRIVILEGE IN WITHOUT PREJUDICE CORRESPONDENCE
Technically speaking, the judgment of Mrs Justice Andrews in Willers v Joyce & Ors [2019] EWHC 937 (Ch) is about the “without prejudice” rule. However the point that has caught everyone’s attention is the fact that lawyers, previously acting for…
THE ASSESSMENT OF EXPERT WITNESS CREDIBILITY: THE EARLIER THE BETTER (PARTICULARLY IF IT COSTS SOMEONE £7.5 MILLION)
The judgment of Mr Justice Snowden in Davey v Money & Anor [2019] EWHC 997 (Ch) will, no doubt, be read anxiously by all litigation funders. The judge held that the “Arkin cap” – a limit on the liability of…
FIXED COSTS, CASES OVER £25,000, EXCEPTIONAL CIRCUMSTANCES AND THE BASKET OF CASES
In Ferri v Gill [2019] EWHC 952 (QB)Mr Justice Stewart considered the relevant criteria to be applied when a claimant argued that fixed costs should not be applied to a case that had started in the portal but was settled…
FIXED COSTS WHEN A PERSONAL INJURY ACTION SETTLES FOR MORE THAN £25,000: “NEW RULES” TO BE APPLIED AND FIXED COSTS APPLY
I am grateful to Matthew Hoe from Taylor Rose TTKW for sending me a copy of the judgment of HHJ Sephton QC in Lovatt -v- Lew Diecastings Ltd (County Court in Manchester, 4th December 2018). Lovatt v LEW Diecastings Ltd…
COURT FEE REMISSION: USEFUL LINKS AND GUIDANCE
The earlier post reporting that a defendant had been ordered to pay the claimant’s court fees despite the claimant being entitled to remission has led to a lot of discussion on Twitter. Responses range from “that’s right” to “what on…
BARRISTERS’ FEES ARE “PROPERTY”: COURT OF APPEAL DECISION TODAY (A HUMAN RIGHTS ISSUE TOO…)
In Gwinnutt v George & Anor [2019] EWCA Civ 656 the Court of Appeal held that a barrister’s fees (paid under the old pre-contractual arrangements) were, in fact, “property” (at least for the purpose of insolvency). There is also an…
ARGUMENT THAT DEFENDANT NOT LIABLE TO PAY COURT FEES SENT TO COVENTRY
I am grateful to Michael Fletcher from Glaisyers Solicitors LLP for sending me a copy of a note of a judgment from Coventy County Court yesterday in Cook -v- Malcolm Nicholls Limited. It is a case concerning whether the claimant…
LIMITS ON THE DUTY OF COUNSEL TO ADVISE ON COSTS AND FUNDING: ALSO PARTICULARS OF CLAIM – IF YOU CAN’T PLEAD A CASE PROPERLY ITS PROBABLY INDICATIVE OF A POOR CASE
The judgment in Andrews & Ors v Messer Beg Ltd [2019] EWHC 911 (Ch) contains an interesting discussion on a barrister’s duty to advise on the funding of litigation. The Part 20 claimant, having had the particulars of claim struck out, …
RELIEF FROM SANCTIONS GRANTED WHERE MONEY PAID 17 HOURS LATE:”A SENSE OF PERSPECTIVE IS NECESSARY”
In Khandanpour v Chambers [2019] EWCA Civ 570 the Court of Appeal allowed an appeal in relation to a refusal to give relief from sanctions. A delay in payment of 17 hours of part of the moneys ordered by the…
PERSONAL INJURY SUCCESS FEES: REDUCTION TO 15% CONFIRMED BY COURT OF APPEAL: ATE INSURANCE IS RECOVERABLE AS A DISBURSEMENT
In Herbert v H H Law Ltd [2019] EWCA Civ 527 the Court of Appeal upheld a decision on a solicitor and own client assessment that the additional liability in a simple personal injury case should be 15%. It allowed…
COSTS, MEDICAL AGENCIES, VAT: SOLICITORS CAN RECOVER VAT PAID TO MEDICAL AGENCIES ON ASSESSMENT
In British Airways Plc v Prosser [2019] EWCA Civ 547 the Court of Appeal considered whether it was appropriate for a claimant’s solicitor to recover the costs of VAT paid to medical agencies. THE CASE The claimant succeeded in a…
DEPARTING FROM THE BUDGET: IMPORTANT DECISION ON APPEAL: JUDGMENT NOW AVAILABLE
Both Professor Dominic Regan and Acumension have kindly sent me copies of the decision in Barts Health NHS Trust -v-Salmon an appeal in relation to costs budgeting (HHJ Dight CBE, with Master Brown as an assessor, 17th January 2019). A copy…
“PLEADINGS THAT ARE OF SUCH DISPROPORTIONATE LENGTH AND DENSITY”: “THE CLAIM BECAME IMPENETRABLE AND UNNECESSARILY EXPENSIVE TO DEAL WITH”
In Galazi& Anor v Christoforou & Ors [2019] EWHC 670 (Ch) Chief Master Marsh considered the costs consequences of amendment and the effective discontinuance of certain causes of action. There are two particular aspects of the judgment of general interest. Firstly…
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