THE CLEVELAND BRIDGE CASE: A SECOND CROSSING: PAYMENTS ON ACCOUNT OF COSTS
Judgments dealing with payments on account of costs are rare, but illuminating. Particularly when the costs budget is taken as the starting point. There is a detailed consideration of this issue in Cleveland Bridge UK Ltd v Sarens (UK) Ltd [2018]…
LIEN, THE SOLICITOR AND THE INSURER: NO SAFE HAVEN FOR DEFENDANTS
The judgment of the Supreme Court this morning in Gavin Edmondson Solicitors Ltd v Haven Insurance Company Ltd [2018] UKSC 21. It confirms that solicitors are entitled to costs in cases where the defendant’s insurer, knowing of the solicitor’s involvement, settled…
MAKING UNWARRANTED ASSERTIONS LEADS TO INDEMNITY COSTS – AGAINST A SECRETARY OF STATE
There are numerous cases where the courts have considered conduct that leads to indemnity costs. In Secretary of State for the Home Department v Barry [2018] EWCA Civ 790 the Court of Appeal found that the Home Department’s conduct of an…
THE NEW ELECTRONIC BILL OF COSTS: ONE DAY TO GO: USEFUL LINKS AND GUIDANCE
The electronic bill of costs will be compulsory from the 6th April. Here are some useful links to help you prepare and survive. I will add to these if anyone has any particular recommendations. PRACTICE DIRECTIONS The Practice Direction…
“PERSUASION”: APPLICATIONS & EVIDENCE: ATTEND A COURSE AND SUPPORT CHILDREN’S LITERACY: 18th APRIL 2018 – LINCOLN’S INN
On the 18th April 2018 I am involved in a talk at Hardwicke, in Lincoln’s Inn. With a number of my colleagues we are talking on “Persuasion” Applications and Evidence for Defendants and Insurers”. All proceeds go directly to a…
CLAIMANTS COSTS REDUCED BECAUSE OF FAILURE ON CERTAIN POINTS: 15% AND 50% REDUCTION
In Civilians v Ministry of Defence [2018] EWHC 690 (QB) Mr Justice Leggatt reduced the costs of the successful party due to the fact that the claimants failed on some issues. THE CASE The claimants had been successful in an action…
WHEN THE JUDGE IS ENTITLED NOT TO DECIDE ON THE EVIDENCE: PLUS THE IMPORTANT ISSUE OF CONDUCT AND COSTS
The Court of Appeal decision today in Constandas v Lysandrou & Ors [2018] EWCA Civ 613 illustrates two distinct issues: The position when a judge is unable to make a finding on the evidence. What conduct can lead to a successful…
THE TIME FOR CHALLENGING A BILL HAS PROBABLY LONG GONE: AN IMPORTANT FACTOR IN REFUSING AN APPLICATION FOR DELIVERY UP
There is a battle (or a series of skirmishes) going on at present in relation to solicitors charging success fees to their clients in personal injury cases. This has led to numerous applications to the courts for disclosure. The former…
ROUND ONE: WHAT IS A”WIN” UNDER A CFA? ROUND TWO: THE ASSIGNMENT OF CFAS: FORMER CLIENT DOES NOT SCORE A KNOCKOUT BLOW
In Warren v Hill Dickinson LLP [2018] EWHC B6 (Costs) Master Leonard considered what was meant by the term “win” in a conditional fee agreement. He also considered whether a CFA was properly assigned. The former client (the claimant in this…
SUCCESSFUL CHALLENGE TO 100% SUCCESS FEE UPHELD ON APPEAL: HIGH COURT JUDGMENT TODAY: SOLICITOR AND OWN CLIENT ASSESSMENT OF COSTS
In Herbert v HH Law Ltd [2018] EWHC 580 (QB) Mr Justice Soole refused a solicitor’s appeal against a decision reducing the success fee from 100% to 15%. This is a very important decision for claimant personal injury lawyers who, habitually,…
QOCS IN HYBRID CASES: CLAIMANT NOT ENTITLED TO FULL EXTENT OF QOCS PROTECTION: ORDERED TO PAY 25% OF THE COSTS
In the judgment today in Siddiqui v University of Oxford [2018] EWHC 536 (QB) Mr Justice Foskett considered an issue as to costs where the claim brought was partially a personal injury claim. The judge held that the claim, for…
CHANGING FROM LEGAL AID TO A CFA: JUDGMENT IN THE COURT OF APPEAL: DEFENDANTS’ APPEAL ALLOWED: ADDITIONAL LIABILITIES NOT RECOVERABLE
I am grateful to Sean Linley of PIC costings for sending me a copy of the Court of Appeal judgement in Surrey -v- Barnet and Chase Farm Hospitals NHS Trust [2018] EWCA Civ 451. This is the latest in the…
HOURLY RATES, INCURRED COSTS AND THE COST BUDGET: AGREED BUDGETS HAVE NO SPECIAL STATUS: HOURLY RATES NOT A GOOD REASON TO DEPART FROM THE BUDGET
The judgment of Master Nagalingam in Nash v Ministry of Defence [2018] EWHC B4 (Costs) covers several issues relating to costs budgets. The Master found that a reduction in hourly rates in relation to incurred costs did not lead to any…
PROVING THINGS 87: FAILURE TO PROVE BASIC ELEMENTS MEANT THAT THE FULL PREMIUM WAS NOT RECOVERED
I am grateful to Dominic Regan for sending me a copy of the judgment of District Judge Baldwin in Nicolaou -v- Cass (Liverpool CC 1st November 2017). The claimant failed to recover a substantial figure for a stage 2 premium…
COSTS ON APPEAL – TWO ISSUES: COSTS AWARDED WHERE THERE WAS NO SCHEDULE BELOW: INDEMNITY COSTS WHEN A PARTY HAD MADE AN OFFER TO COMPROMISE AN APPEAL
An earlier post dealt with the substantive decision in Cross-v- Black Bull (Doncaster) Limited* (Sheffield County Court 21st December 2017). A short supplementary judgment dealt with two issues as to costs. KEY POINTS The fact that a party did not have a…
WHEN QOCS APPLY: COURT OF APPEAL DECISION: THE SWINGS AND THE ROUNDABOUTS
In Corstorphine (An Infant) v Liverpool City Council [2018] EWCA Civ 270 the Court of Appeal considered an important issue in relation to Qualified One Costs Shifting. What order should be made when the claimant has QOCS protection against some of…
PAYMENTS ON ACCOUNT OF COSTS: YOU CAN’T ALWAYS GET WHAT YOU WANT: THE COURT’S APPROACH WHEN THE COSTS SCHEDULES ARE “EYE-WATERING”
In Dana Gas PJSC v Dana Gas Sukuk Ltd & Ors [2018] EWHC 332 (Comm) Lord Justice Leggatt considered the principles relating to payments on account of costs. In particular the approach the court should take when there were weighty commercial…
OVERTURNING THE SUMMARY ASSESSMENT OF COSTS FOR A COMMITTAL: THE AMOUNTS INVOLVED WERE “DISPROPORTIONATE AND WRONG
The previous post looked at the Court of Appeal decision today in Solanki v Intercity Telecom Ltd [2018] EWCA Civ 101. A third element of that judgment was the defendant’s successful appeal against the costs of a committal application. The Court held…
WANT TO WORK HARD, WIN AND STILL NOT GET PAID II? LAWYERS COME TO GRIEF IN THE COURT OF APPEAL: REVIEW YOUR RETAINER CAREFULLY
In Radford & Anor v Frade & Ors [2018] EWCA Civ 119 the Court of Appeal upheld the early decisions that lawyers, who worked outside the terms of their retainer under a CFA, could not recover costs from the unsuccessful party….
THE HOURLY RATE FOR INCURRED COSTS: WHY IT IS IMPORTANT THAT THESE ARE SET OUT CORRECTLY: HIGHER HOURLY RATES THAN THE RETAINER SHOULD START THE ALARM
I am grateful to Benjamin Petrecz, Associate and Costs Lawyer at Keoghs LLP, for bringing my attention to a decision of Master Rowley in Tucker -v- Griffiths & Hampshire Hospitals NHS Foundation Trust (19/05/17) in relation to costs budgeting. A…
THE COSTS OF MEDIATION AND THE COSTS BUDGET: AVOIDING A POSSIBLE TRAP
I am grateful to Alan Mendham for writing to point out a possible trap in relation to costs budgeting and mediation. Alan points out that disputes can arise as to whether mediation is included in the phase for settlement…
COSTS: THE COSTS OF ATTENDING AN INQUEST: THE APPROPRIATE APPROACH
In Douglas v Ministry of Justice & Anor [2018] EWHC B2 (Costs) Master Leonard considered the issue of the recoverability of costs of attending an inquest. There is a highly nuanced approach. The issues raised are of more general relevance in…
WHEN A PARTY CHANGES ITS FUNDING ARRANGEMENTS PART WAY THROUGH: A CHANGE FROM DBA TO CFA DID NOT PREVENT THE CLAIMANT RECOVERING FULL COSTS
The decision of Master James in Dial Partners LLP & Anor v Eastern Airways International Ltd & Ors [2018] EWHC B1 (Costs) raises an interesting set of issues when a party changes the basis of its funding part-way through a case,…
PROPORTIONALITY, CASES AND COMMENT: A ROUND UP
The post yesterday on the Brian May case and proportionality highlighted the fact that this is still a major issue in litigation. It is a good time to set out the posts on this blog on proportionality to date. PREVIOUS…
THE BRIAN MAY COSTS CASE: TRANSCRIPT NOW AVAILABLE: PROPORTIONALITY APPEAL DID NOT BITE THE DUST
Thanks to the good offices of the ACL the judgment on appeal of May -v- Wavell Group Ltd is now available here. The claimant’s appeal on the issue of proportionality was allowed. The figure of £35,000 plus vat for costs…
PUTTING THE “COSTS OF BUDGETING” IN THE BUDGET: A DEBATE
Yesterday I wrote about the issues posed by the fact that the costs of budgeting (the 1% and 2% allowed for Form H and budgeting) now cannot be assessed at the budget stage. I suggested the budgeting order should read…
THE COSTS OF COSTS BUDGETING CANNOT BE ASSESSED UNTIL THE END OF THE CASE – A QUICK REMINDER: THE PRACTICAL CONSEQUENCES
The early part of the year may be a good time to remind people that it is now not possible to put the 1% and 2% figures in the costs budget at the end of the budgeting process. CHANGE IN…
REVISING COSTS BUDGETS: “SIGNIFICANT DEVELOPMENTS”, INCURRED COSTS AND APPLICATIONS MADE DURING THE COURSE OF A TRIAL
In Sharp v Blank & Ors [2017] EWHC 3390 (Ch) Chief Master Marsh considered an application by the defendant to revise its costs budget. The judgment contains important observations about the practicalities involved in costs budgeting. There is also a detailed…
TWO ISSUES RELATING TO COSTS: STAGE 3 ISSUE FEES; COSTS BUDGETING IN FATAL CASES WHERE THERE IS A CHILD DEPENDENT
I had an interesting email this morning from Jon Heath, solicitor at Levins, Liverpool. It deals with two distinct issue: Stage 3 issue fees. Costs budgeting in a fatal case where there is a child involved. STAGE 3 ISSUE FEES….
LIMITATION AMNESTIES: AN INTERESTING CASE
There is an interesting case comment on the DACbeachcroft website in relation to limitation amnesties. Andrews v South Tees Hospitals NHS Foundation Trust The comment is by Joe Walton. It reports a case where a claimant sought an extension of…
CIVIL LITIGATION REVIEW OF 2017 (IV): COSTS, BUDGETS, PROCEDURAL GAMES AND MISCONDUCT ON ASSESSMENT
This year has been a surprisingly muted year for costs cases, particularly in the higher courts. Several judgments were expected, however they rarely proved to be definitive or wide ranging. 2018 may be the year that some issues are resolved….
UNDERPAYMENT OF COURT FEES AND STRIKING OUT: CLAIMANT SUCCESSFUL ON APPEAL:
Exactly a year ago today His Honour Judge Robinson gave judgment in a case relating to under-payment the Court fees , see Wiseman -v- Martson. Judge Robinson gave judgment this morning in a case that covered similar ground. He allowed an…
THE COSTS OF PROVISIONAL ASSESSMENT: THE CAP ALWAYS FITS
In W Portsmouth and Company Ltd v Lowin [2017] EWCA Civ 2172 the Court of Appeal held that the cap on the costs of provisional assessment continues to apply even when a receiving party has beaten their own Part 36 offer…
COURT OF APPEAL STATES INDEMNITY COSTS SHOULD HAVE BEEN AWARDED: SHOULD HAVE BEEN MORE BULLISH IN BRADFORD…
It is unusual for the Court of Appeal to interfere with a discretionary order in relation to costs. It is even more unusual for the court to replace an order for costs on the standard basis with indemnity costs. This…
COSTS DISALLOWED IN FULL DUE TO MISCONDUCT IN ASSESSMENT PROCESS: COURT OF APPEAL DECISION
In GSD Law Ltd v Wardman & Ors [2017] EWCA Civ 2144 the Court of Appeal upheld a decision whereby the claimants’ costs were disallowed because of misconduct during the assessment process. “The alleged misconduct in this case goes to…
CLAIMANT ACCEPTING PART 36 OFFER LATE: COURT ORDERED INDEMNITY COSTS FOR THE PERIOD BETWEEN EXPIRY AND ACCEPTANCE
In Lokhova v Longmuir [2017] EWHC 3152 (QB) Mr Justice Warby considered the court’s discretion when a claimant accepted a defendant’s Part 36 offer late. KEY POINTS A court had jurisdiction to vary the normal order for costs when a claimant…
ASSIGNMENT OF CFAs: IT CAN BE DONE
In Budana v The Leeds Teaching Hospitals NHS Trust & Anor [2017] EWCA Civ 1980 the Court of Appeal decided that a CFA can be assigned from one solicitor to another. THE CASE The claimant was injured. She entered into a…
CHANGES TO THE RULES IN RELATION TO THE COSTS OF COSTS MANAGEMENT: COMPARE AND CONTRAST
There has been a change to the rules governing the costs of costs management. This was introduced by the 93rd Update on Practice Direction Amendments. The Ministry of Justice have confirmed that these have come into force. * THE NEW RULE:…
DEFENDANT ORDERED TO PAY AFTER THE EVENT PREMIUM OF £533,017.13 : EYE-WATERING DECISION FOR INSURERS
In Percy v Anderson-Young [2017] EWHC 2712 (QB) Mr Justice Martin Spencer held that an after the event premium of £533,107.13 was recoverable. There was no sympathy for the defendant. “… in my judgment, any sympathy for the Defendant here…
CLINICAL NEGLIGENCE: RECOVERABILITY OF PREMIUMS & PROPORTIONALITY: COURT OF APPEAL DECISION TODAY
In Peterborough & Stamford Hospitals NHS Trust v McMenemy & Ors [2017] EWCA Civ 1941 the Court of Appeal considered the position in relation to the payment of insurance premiums in clinical negligence cases. The Court decided that it is appropriate…
AFTER THE EVENT INSURANCE DOES NOT PROHIBIT AN ORDER FOR SECURITY FOR COSTS
In Premier Motorauctions Ltd & Anor v Pricewaterhousecoopers LLP & Anor [2017] EWCA Civ 1872 the Court of Appeal decided that the existence of an after the event insurance policy to cover legal expenses did not prohibit a court from ordering…
PRO BONO COSTS ORDERS: NOT JUST FOR CHRISTMAS
I had an email this morning from Sue Nash asking me to publicise the ability of the court to make pro bono costs orders. Here is a reminder. It is important that those representing a party pro bono is aware…
SERVICE BY ALTERNATIVE MEANS, THE ABSENT DEFENDANT, DEFAULT JUDGMENT AND COSTS: ABSENCE OF DEFENDANT DOESN’T CAUSE THE COURT TO MISS A GEAR
In Pirtek (UK) Ltd v Jackson [2017] EWHC 2834 (QB) Mr Justice Warby considered several procedural issues. These are of wider interest, particularly issues relating to the method of service, proceeding in the defendant’s absence, summary judgment and costs. …
COSTS BUDGETING AND PROPORTIONALITY TEST APPLY – EVEN IN A CASE FOR £350 MILLION
in Sharp & Ors v Blank & Ors [2017] EWHC 141 (Ch) Mr Justice Nugee considered the issue of proportionality in a case where £350 million was at stake. Mr Justice Nugee decided that the requirement for costs budgeting, and proportionality,…
COSTS AFTER DISCONTINUANCE VARIED: CLAIMANT TO PAY INDEMNITY NOT STANDARD COSTS: TWO RIGHT FEET BROUGHT THE WRONG ACTION
When a claimant discontinues an action there is an automatic provision that the claimant pay the defendant’s costs (CPR 38.6). In Two Right Feet Ltd v National Westminster Bank Plc & Ors [2017] EWHC 1745 (Ch) Ms Sara Cockerill Q.C. made…
BNM -v- MGN: A DECISION OF LIMITED PROPORTION
The Court of Appeal decision in BNM v MGN Ltd [2017] EWCA Civ 1767 has relatively limited impact. In particular it says little, if anything, about the proportionality itself. THE CASE The Court of Appeal were deciding an appeal following an…
COSTS AFTER LATE ACCEPTANCE OF A DEFENDANT’S PART 36 OFFER: CLAIM £21.5 MILLION, ACCEPT £125,000: THE IMPORTANCE OF CLEAR VISION ON DAMAGES FROM THE OUTSET
In Optical Express Ltd & Ors v Associated Newspapers Ltd [2017] EWHC 2707 (QB) Mr Justice Warby considered arguments in relation to costs after late acceptance of a Part 36 offer. On the facts of that case he ordered that the…
SOLICITOR AND OWN CLIENT ASSESSMENTS: PROPORTIONALITY CONSIDERED
In October last year I wrote how a speaker at the Association of Cost Lawyers Conference predicted a rise in the number of solicitor and own-client assessments. It has to be said that there have been some interesting cases in…
PRACTISING “DEFENSIVE LITIGATION” : ESSENTIAL CHECKLISTS GATHERED TOGETHER
What many (if not most) of the posts on this blog make clear is that there is now precious little room for error in civil procedure. To operate effectively, and profitably, we have to develop systems of “defensive litigation”. That…
IF YOU WANT YOUR COSTS ASSESSED IMMEDIATELY AFTER AN APPEAL OR INTERLOCUTORY HEARING THEN YOU HAVE TO ASK : OTHERWISE YOU’LL JUST HAVE TO WAIT
Does a successful litigant on an interlocutory issue have a right to have their costs assessed immediately? That was the question addressed by the Court of Appeal in Khaira & Ors v Shergill & Ors [2017] EWCA Civ 1687 . This…
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