FIXED COSTS DO NOT APPLY WHEN THEY ARE INCONSISTENT WITH THE TERMS OF CONSENT ORDER: JUDGMENT ON APPEAL IN THE COUNTY COURT
NB THIS DECISION WAS OVERTURNED BY THE COURT OF APPEAL IN Ho v Adelekun [2019] EWCA Civ 1988, see the discussion here. I am grateful to Sam Hayman and Tom Jenkinson from Bolt Burdon Kemp for sending me a copy…
DEFENDANT ORDERED TO PAY COSTS AFTER REFUSING TO PAY PRE-ACTION COSTS: COURT OF APPEAL REFUSES TO GIVE PERMISSION TO APPEAL
In November last year I wrote about the case of Ayton -v- RSM Bentley Bennison & Ors [2018] EWHC 2851 (QB). This was a case in which the defendant refused to pay cost incurred prior to issue. Proceedings were issued and…
CLAIMANT BEATS ITS OWN PART 36 OFFER ON COSTS: DOESN’T GET ADDITIONAL 10%: “UNJUST” CONSIDERED
NB THIS DECISION WAS OVERTURNED ON APPEAL, SEE THE POST 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” A claimant who beats their own…
UNANTICIPATED SIZE OF DISCLOSURE WAS AN “UNANTICIPATED DEVELOPMENT”: UPWARD REVISION OF COST BUDGET ALLOWED
In Al-Najar & Ors v The Cumberland Hotel (London) Ltd [2018] EWHC 3532 (QB) Master Davison allowed an upward variation of the cost budget. The scale of disclosure given by the defendant could not have been anticipated and it was reasonable…
BACK TO BASICS 19: COSTS BUDGETING WHEN CASE IS MORE THAN £25,000 BUT LESS THAN £50,000
There are special rules governing budgets in cases where the claimant claims more than £25,000 but less than £50,000. Firstly the budget has to be filed much earlier. Secondly the budget “must” only be the first page of Precedent H….
A STRATEGY WHEN SETTLEMENT IS REACHED WITH SOME, BUT NOT ALL, DEFENDANTS
An earlier post dealt with the judgment in McDermott -v- Inhealth Limited (19/07/2018) in relation to costs liability when a claimant settled against some, but not all, defendants in a clinical negligence case. That judgment was sent to me by Thomas Riis-Bristow, Associate…
COSTS AND “ABSURD” CONDUCT IN LITIGATION: HOW TO WASTE £1 MILLION…
This blog rarely looks at family cases. When it does it is often in relation to costs. Which is why the judgment of Mr Justice Francis in ABX v SBX [2018] EWFC 81 caught my eye. It raises one fundamental dilemma…
“THIS IS AN ARCHETYPAL CASE WHERE IT WOULD NOT BE APPROPRIATE TO GRANT RELIEF FROM SANCTIONS”: ANOTHER LATE COSTS BUDGET CASE
The judgment OF Mr Justice Bryan in BMCE Bank International Plc v Phoenix Commodities PVT Ltd & Anor [2018] EWHC 3380 (Comm) provides, as the judge noted, an archetypal example of the way not to go about cost budgeting, coupled with…
THE ASSIGNMENT (OR NOVATION) OF CFAS: BOXING PROMOTER’S APPEAL SUFFERS KNOCKOUT BLOW BEFORE A PUNCH WAS THROWN
In Warren v Hill Dickinson LLP [2018] EWHC 3322 (QB) the proposed appellant did not get permission to appeal against a decision that an assigned (or novated) CFA remained valid. THE CASE The claimant argued that conditional fee agreements he had…
BACK TO BASICS 17: WHEN SHOULD A COST BUDGET BE FILED: WHERE THINGS GO WRONG
This may appear very basic. However I have seen both sides falling foul of this very recently. In particular the fact that the budget has to be filed with the directions questionnaire when the claim is limited to £50,000. THE…
COST BUDGETING: THE PARTIES MUST KNOW WHERE THEY STAND: LEAVING HOURLY RATES “OPEN” IS INAPPROPRIATE
I am grateful Sam Hayman from Bolt Burdon Kemp to for sending me a copy of the decision of Mr Justice Jacobs in Yirenki -v- Ministry of Defence [2018] EWHC 3102 (QB). The judge allowed an appeal against a cost budgeting…
RUN UP COSTS OF £1.4 MILLION: EXPECT TO PAY A LARGE CHUNK OF THEM YOURSELF: “NO ONE ENTERS LITIGATION SIMPLY EXPECTING A BLANK CHEQUE”
There are interesting (and important) observations on the running up of costs in the judgment of Mr Justice Francis in WG v HG [2018] EWFC 70. This blog does not normally follow family law cases. However the question of costs is…
THE EFFECT OF A WITHDRAWN PART 36 OFFER : DEFENDANTS NOT ENTITLED TO COSTS, BUT LED TO NO ORDER FOR COSTS THROUGHOUT
There is an interesting judgment in Britned Development Ltd v ABB AB & Anor [2018] EWHC 3142 (Ch) which should be read by anyone thinking of withdrawing a Part 36 offer. The defendants in this case made a Part 36 offer…
SENIOR COURTS COSTS OFFICE GUIDE 2018
The new Senior Court Costs Office Guide has been published. This replaces the 2013 version with immediate effect. It is available on the link in the page here. The new guide Deals with all changes since 2013. Deals with the electronic…
THE COURT CAN (AND IN THIS CASE SHOULD) ORDER ADDITIONAL SECURITY FOR COSTS
I am grateful to solicitor Shimon Goldwater for sending me a copy of the judgment of Mrs Justice Moulder in Mayr -v- CMS Cameron McKenna Nabarro Olswang LLP [2018] EWHC 3093 (Comm). It relates to the principles to be applied when…
COURT HAS NO POWER TO MAKE AN ORDER FOR COSTS ON ACCOUNT AFTER ACCEPTANCE OF A PART 36 OFFER: HIGH COURT DECISION
NB THIS DECISION WAS NOT ACCEPTED AND EFFECTIVELY OVERRULED BY THE COURT OF APPEAL IN Global Assets Advisory Services Ltd & Anor v Grandlane Developments Ltd & Ors [2019] EWCA Civ 1764. It was held that the court does have a…
SOLICITOR AND OWN CLIENT COSTS: AN AGREEMENT TO PAY A SPECIFIC SUM FOR PAST COSTS NOT UNFAIR AND NOT SET ASIDE
The judgment of Master Brown in Whitaker v Richard Slade & Company Plc [2018] EWHC B17 (Costs) may have some interesting implications for solicitor and own-client costs. In particular the finding that an agreement in relation a specific sum for work…
DOES A COUNTERCLAIMING DEFENDANT HAVE THE BENEFIT OF QOCS? NOT IN THIS COURT: THERE ARE NOW TWO (CONFLICTING) JUDGMENTS ON THIS ISSUE
I am grateful to Barrister Kevin Latham for sending me details of the decision of HHJ Venn in Waring -v- McDonell [2018] EW Misc B11 (CC). A link to the full decision is also available at the foot of Kevin’s…
RESPONDENTS ALLOWED TO COMMENT AT HEARING : NEVERTHELESS SURVIVES A COSTS ORDER ON APPEAL
In Bhogal & Anor v Knight [2018] EWHC 2952 (Ch) the appellants failed in their appeal following an order that the respondent pay the costs of their initial application. The procedure described in the judgment is instructive. It was yet another…
ADVISING YOUR CLIENT ON LITIGATION RISKS 5: IF YOU DON’T PAY COSTS BEFORE ISSUE IT COULD BE VERY EXPENSIVE AFTERWARDS
I am grateful to Sam Hayman from Bolt Burdon Kemp for sending me a copy of the High Court decision in Ayton -v- RSM Bentley Bennison & Ors [2018] EWHC 2851 (QB). It is one of those cases that illustrate…
PROVING THINGS 131: IN THE ABSENCE OF EVIDENCE THE COURT SHOULD NOT DRAW INFERENCES IN SOLICITOR’S COSTS CASE
The judgment in Gill v Heer Manak Solicitors [2018] EWHC 2881 (QB) is one of those cases that will get costs lawyers excited. However it is not so much a case about costs as a case about evidence, or the absence…
COSTS REDUCED BY 25% : SEPARATE COSTS OF CLAIM AND COUNTERCLAIM: INCREASED COSTS WHEN LITIGATING AGAINST A LITIGANT IN PERSON
In Bank St Petersburg PJSC & Anor v Arkhangelsky & Ors [2018] EWHC 2817 (Ch) Mr Justice Hildyard considered the appropriate costs order after a lengthy trial. THE CASE There has been a lengthy trial (between February – July 2016) where…
“PUT BLUNTLY THESE ARGUMENTS ARE MISCONCEIVED”: ADMINISTRATIVE COURT IN A VERY ROBUST MOOD OVER COSTS
In Kay, R (On the Application Of) v Scan-Thors (UK) Ltd & Anor (Costs) [2018] EWHC 2842 (Admin) the Divisional Court dealt robustly with arguments made by an interested party attempting to resist an order for costs. “Put bluntly, these submissions…
ADVISING YOUR CLIENT ON LITIGATION RISKS 4: THE SCOPE OF THE SOLICITOR’S RETAINER: TURN DOWN AN OFFER OF £500,000 AND LOSE – THREE TIMES
In Lyons v Fox Williams LLP [2018] EWCA Civ 2347 the Court of Appeal turned down the claimant’s appeal. The claimant had been unsuccessful in an action for professional negligence against a firm of solicitors. He was equally unsuccessful on appeal….
CASE MANAGEMENT HEARING: SHOULD WE STAY OR SHOULD WE GO? PROCEEDINGS NOT DELAYED BECAUSE THERE ARE PENDING APPEALS
In Sberbank of Russia v The OJSC International Bank of Azerbaijan [2018] EWHC 2777 (Comm)Mr Justice Bryan had to consider whether to adjourn a case management conference pending appeals in other cases. The judge considered the overriding objective and held that…
COSTS IN AN ESTATE CLAIM: REFUSAL TO ENGAGE IN MEDIATION WAS A FACTOR TO BE TAKEN INTO CONSIDERATION
I am grateful to barrister James Miller for sending me a copy of the decision of HHJ Truman in Nicholls -v- Nicholls (19th June 2018), available here NICH19062018APP. The judgment is solely concerned with costs in relation to an action…
INDEMNITY COSTS: CAN BE AWARDED WHEN CLAIMANT DISCONTINUES FOUR DAYS INTO A SIX WEEK TRIAL
In Hosking & Anor v Apax Partners LLP & Ors [2018] EWHC 2732 (Ch) Mr Justice Hildyard awarded indemnity costs in a case where the claimant discontinued four days into a six week trial. “My assessment is that this was high-risk…
COURT STEPS OUTSIDE THE FIXED COSTS REGIME: DEFENDANT’S CONDUCT AMOUNTED TO AN ABUSE
The Intellectual Property Enterprise Court (IPEC) guards its fixed costs regime very jealously. Prior to the decision in Link Up Mitaka Ltd (t/a Thebigword) v Language Empire Ltd & Anor [2018] EWHC 2728 there appears to have only been one previous…
SANCTIONS AND COSTS BUDGETS: A “PARTIAL” BUDGET DOES NOT COMPLY WITH THE RULES BUT A “PARTIAL” SUCCESS FOR THE CLAIMANT ON APPEAL
In the judgment today in Page v RGC Restaurants Ltd [2018] EWHC 2688 (QB) Mr Justice Walker allowed an appeal in relation to the sanctions imposed when a claimant failed to file an costs budget that complied with the rules. The…
WHEN YOU SETTLE THE APPLICATION BUT LEAVE IT TO THE JUDGE TO DETERMINE THE ISSUE OF COSTS: THE APPROPRIATE APPROACH
In Conversant Wireless Licensing SARL v Huawei Technologies Co. Ltd & Ors [2018] EWHC 2549 (Ch) Mr Justice Henry Carr had to consider the appropriate order to make when the parties had agreed the terms of an application but could not…
PROPORTIONALITY: A LITIGATOR’S SURVIVAL GUIDE VIII: PROPORTIONALITY LEADS TO BASE COSTS BEING REDUCED FROM £115,906.00 TO £75,000
I am grateful to my colleague Robin Dunne for sending me a copy of the decision of HHJ Auerbach in Reynolds -v- One Stop Limited (21st September 2018). A copy of the judgment is available A79YM916 Reynolds v One Stop…
SOLICITORS CANNOT BE COMPELLED TO HAND OVER FILES: HIGH COURT DECISION
In Hanley v J C & A Solicitors [2018] EWHC 2592 (QB) Mr Justice Soole decided that the court did not have inherent power to compel solicitors to hand over copies of documents to their former clients. THE CASE Three claimants…
ISSUE BASED COSTS ORDERS: RELEVANT FACTORS INCLUDE CLAIMANT’S OFFER OF SETTLEMENT
The judgment in Welsh v Walsall Healthcare NHS Trust (Costs) [2018] EWHC 2491 (QB) is one of those “cut out and keep” judgments in that it contains a useful precis of all the relevant rules and principles relating to issue based…
PROPORTIONALITY: A LITIGATOR’S SURVIVAL GUIDE VII: FAILURE TO FOCUS ON THE SIMPLE ISSUE LED TO DISPROPORTIONATE COSTS
It can be said that the clue here is in the name of the case – London Borough of Hounslow v A Father & Mother (Costs in the Court of Protection – Disproportionate litigation) [2018] EWCOP 23. This is a…
ORDER FOR PAYMENT ON ACCOUNT OF COSTS CAN BE MADE LATE
In Culliford & Anor v Thorpe [2018] EWHC 2532 (Ch) HH Paul Matthews (sitting as a High Court judge) held that it was possible for the court to make an order for an interim payment of costs after the date on…
PROVING THINGS 128: CLAIMANT’S EVIDENCE NOT FULL, CLEAR, FRANK OR UNEQUIVOCAL IN RESPONSE TO APPLICATION FOR SECURITY FOR COSTS
In Danilina v Chernukhin & Ors [2018] EWHC 2503 (Comm) Mr Justice Teare was critical of the quality of the evidence that the respondent adduced in response to an application for security for costs. THE CASE The defendants sought an…
COST LAWYERS – SHOW THEM SOME RESPECT: OBSERVATIONS FROM THE HIGH COURT
There is a footnote to the judgment of Master Leonard yesterday in Allen v Brethertons LLP [2018] EWHC B15 (Costs) that is worth reading for anyone involved in costs litigation. “Ms Moore, when acting as a Costs Lawyer with a right…
ADVISING YOUR CLIENT ON LITIGATION RISKS 2 & 3 : RISKING IT ALL ON A RECOLLECTION OF A MEETING & THE WITNESS WHO GIVES A WHOLLY NEW ACCOUNT FROM THE WITNESS BOX
The judgment in Slade (t/a Richard Slade And Co) v Abbhi [2018] EWHC 2039 (Comm) (24 September 2018) illustrates another risk of litigation. The risk of a witness giving a wholly new account whilst giving evidence at trial. THE CASE The…
BACK TO BASICS 16: COSTS BUDGETING: THE GUIDANCE NOTES ON PRECEDENT H
There is much written about the process of costs budgeting. There is much to be said, when preparing for a hearing – and often at the hearing itself, looking at the Practice Direction and Guidance Notes. THE PRACTICE DIRECTION The…
QOCS PROTECTION COVERS A COUNTER-CLAIMING DEFENDANT: SOMETHING TO THINK ABOUT
I am grateful to barrister Andrew Lyons for sending me a copy of the judgment of HHJ Freedman in Ketchion -v- McEwan (28th June 2018), a copy of which is available here, 1061737_Ketchion v McEwan_Judgment for Approval_26 6 18. It is…
EXPERTS ACTING ON A CONDITIONAL FEE BASIS: A MAJOR PROBLEM AREA: DETAILED CONSIDERATION FROM THE UPPER TRIBUNAL
I am grateful to Graham Hain for pointing out the decision of the Upper Tribunal (Lands) Chamber in Gardiner & Theobald LLP v Jackson (VO) (RATING – procedure) [2018] UKUT 253 (LC). This specifically relates to experts in the Lands Chamber,…
THE ELECTRONIC BILL OF COSTS: UPDATE TO LINKS, INCLUDING GUIDANCE ON THE ENTIRE PROCESS
There has been much recent comment on the “success” (or otherwise) of the electronic bill of costs. This is a guide time to update the links to commentary and guidance on the process. RECENT COMMENTARY The New Law Journal…
IF YOU WANT A NON-PARTY COSTS ORDER YOU NEED TO “SHOUT” OUT IN ADVANCE: “YOU NEVER GIVE ME YOUR MONEY…”
In Sony/ATV Music Publishing LLC & Anor v WPMC Ltd & Anor [2018] EWCA Civ 2005 the Court of Appeal overturned a ruling that a director of a company should pay pay a company’s costs. The absence of warning was a…
INDEMNITY COSTS AGAINST CLAIMANTS IN GROUP LITIGATION ORDER: INDEMNITY COSTS APPROPRIATE: AN EXHAUSTING READ
The judgment of Master Fontaine in The VW NOx Emissions Group Litigation [2018] EWHC 2308 (QB) is a warning to any litigator thinking of applying for a Group Litigation Order (“GLO”). The rule is clear basically – get your case in…
COSTS IN THE COURT OF PROTECTION: “ARROGANCE” AND “PETULANCE” LEADS TO AN AWARD OF COSTS AGAINST A LOCAL AUTHORITY
In London Borough of Lambeth v MCS & Anor [2018] EWCOP 20 Mr Justice Newton did not follow the normal practice in Court of Protection cases. He ordered costs to be paid against the Local Authority and the Lambeth Commissioning Group….
DISCONTINUING CLAIMANT STILL HAS TO PAY DEFENDANT’S COSTS: CLAIMANT CANNOT PASS RISKS ON TO ANOTHER DEFENDANT
In BAE Systems Pension Funds Trustees Ltd v Bowmer & Kirkland Ltd [2018] EWHC 1222 (TCC) Mrs Justice Jefford refused the claimant’s application for an order that it should not have to pay the costs of a defendant it discontinued against. …
THE CORRECT FEE ON A PART 8 APPLICATION: DON’T LET THE COURT STAFF MAKE YOU HAND OVER MONEY FOR NOTHING
A Twitter conversation this morning came up with the old chestnut of court staff informing a solicitor that the court fee to be paid on a Part 8 application for approval was identical to that on a Part 7 claim. …
FIXED COSTS DO NOT APPLY TO MONTREAL CONVENTION CLAIMS: DECISION FROM LIVERPOOL
I am grateful to Katie Wheeler from Compass Costs for sending me a copy of the judgment of District Judge Baldwin (Regional Costs Judge) in McKendry -v- British Airways PLC (hearing 16th May 2018 – judgment received today, available here McKendry)….
A MONTREAL CONVENTION CLAIM DOES NOT FALL WITHIN THE PORTAL: FIXED COSTS DO NOT APPLY
I am grateful to Peter Bland from Scott Rees, solicitors, for sending me a copy of the decision in Mead -v- British Airways Plc*. Mead v BA template – Final 15 August 2018 (1)This considers the issue of whether a…
RESPONDENT CAN STILL RAISE ISSUES ON DAMAGES AFTER LIABILITY IS DETERMINED: IMPORTANT POINT ON PROTECTING AN APPLICANT AS TO COSTS
The Court of Appeal decision in Office Equipment Systems Ltd v Hughes [2018] EWCA Civ 1842 is in relation to procedure in the Employment Tribunal. However there are two points in the judgment that are of general importance to civil practitioners. …
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