“WE WILL FIGHT THEM ON THE BUDGET”: COSTS BUDGETING: STOP PLAYING PROCEDURAL GAMES: COULSON J PROVIDES CLEAR GUIDANCE
Costs budgeting is not a place for the playing of procedural games. Mr Justice Coulson made this clear in his judgment published today in Findcharm Ltd -v- Churchill Group Ltd [2017] EWHC 1109 (TCC). It is a clear warning of…
COSTS AGAINST NON-PARTIES: COSTS ORDER NOT MADE AGAINST DIRECTOR
When is it appropriate to make an order against a director personally? This issue was considered in Housemaker Services Ltd -v- Cole [2017] EWHC 924 (Ch) by HHJ Paul Mattews (sitting as a High Court Judge). The judge declined to…
BOUNDARIES, BORDERS AND COSTS: IF YOU LEAVE THE ISSUE OF COSTS TO THE JUDGE YOU MAY NOT GET THE ANSWER YOU WANT
The judgment of the Court of Appeal in Powles -v- Reeves [2016] EWCA Civ 1375 shows the dangers of not being able to agree the principle of who should pay the costs of litigation. It shows the dangers of just…
MACHISMO OR MADNESS? THE DANGERS OF MAKING A “TIME LIMITED” OFFER OR WITHDRAWING A PART 36 OFFER
There may be tactical advantages to making a “time limited” offer, or withdrawing a Part 36 offer after 21 days. However this can backfire badly. We have already looked at the decision in Thakkar -v- Singh [2017] EWCA 117 in…
MERRIX NOT BEING APPEALED (BUT HARRISON IS – WATCH THIS SPACE)
The decision in Merrix -v- Heart of England NHS Foundation Trust [2017] EWHC 346 (QB) is not being appealed by the defendant. The rationale is, apparently, that the defendant did not want to risk losing the listing of the appeal in Harrison…
MEDIATION AND LITIGATION: ANOTHER EXAMPLE OF THE DANGERS OF IGNORING OFFERS TO MEDIATE
This blog reports regularly on cases where the courts have highlighted the advantages of mediation and the dangers of rejecting an offer to mediate. The latest note of cautious comes from the judgment of Lord Justice Jackson in Thakkar -v-…
BILL OF £101,677.21 AND THE CLAIMANT ENDS UP WITH £2,515.60: MISCONDUCT DURING THE ASSESSMENT PROCESS HAS SERIOUS CONSEQUENCES
I am grateful to Justin Edwards of BLM solicitors for sending me a copy of the decision of Master Whalan in Jago -v-Whitbread a decision of Master Whalan. A copy of that case is attached here ( 2016.10.05 – Approved Judgment)….
FILING FORM H: WHEN DOES A CASE HAVE A VALUE OF “LESS THAN £50,000”? A POINT TO WATCH
There are now several formats for Form H. The “short” one page version is now used in cases where the value is between £25,000 and “less than £50,000”. Some judges are interpreting this strictly to read between £25,000 and £49,999″….
KNOW (AND FOLLOW) THE RULES – OR ELSE: DPP COPS IT.
There is some irony in the decision of Mr Justice Fraser in R (RA) -v- The Director of Public Prosecutions [2017] EWHC 714 (Admin). The claimant, a litigant in person, complied with the rules. The defendant, a specialised government department…
INTERIM PAYMENTS ON ACCOUNT OF COSTS: READ (AND CITE) THE CORRECT CHAPTER OF COOK ON COSTS
I am grateful to John McQuater for sending me a copy of an order from HH Judge Robinson, It relates to an application on account of costs. The appeal was (for obvious reasons) compromised. However the robust terms of the…
INTEREST ON DAMAGES AFTER FAILING TO BEAT A CLAIMANT’S PART 36 OFFER: THE AIM IS TO ENCOURAGE GOOD PRACTICE AND NOT SIMPLY TO COMPENSATE
In Ovm Petrom SA -v- Glencore International SA [2017] EWCA Civ 195 the Court of Appeal overturned a decision not to award 10% interest on damages in a case where a defendant failed to beat a claimant’s Part 36 offer….
NO ISSUE BASED COSTS ORDER WHEN UNSUCCESSFUL CLAIMANT HAD TURNED DOWN A PART 36 OFFER OF £500,000
In Lyons -v- Fox Williams LLP [2017] EWHC 532 (QB) Mr Justice Turner considered issues relating to costs after a claimant had been unsuccessful in a claim for professional negligence. THE CASE The claimant had been unsuccessful in a claim…
“AGREED” COSTS BUDGETS NOT APPROVED BY THE COURT : THAT QC IS JUST TOO EXPENSIVE – THINK AGAIN
In Brown -v- BCA Trading Limited [2016] EWHC 1464 (Ch) Mr Registrar Jones refused to approve “agreed” budgets. He held that the fees of leading counsel were too high and needed to be reconsidered. This shows that an agreement between…
COSTS AFTER NOMINAL DAMAGES AND PART 36 OFFERS: THE CLAIMANTS WHO TURNED DOWN £1.5 MILLION AND GOT £2.00 INSTEAD
We looked at the decision of Mr Justice Leggatt in Marathon Asset Management LLP -v- Seddon [2017] EWHC 300 (Comm) in an earlier post. The judge held that the defendants were in breach but that the claimants had suffered no loss….
COSTS NORMALLY FOLLOW THE EVENT: SUCCESSFUL DEFENDANT ENTITLED TO 100% OF ITS COSTS
We looked at the decision in Oldcorn -v- Southern Water Services Ltd [2017] EWHC in an earlier post. A second judgment on the case on the issue of costs is reported at [2017] EWHC 460 (TCC). . The successful defendant was…
COSTS, CONDUCT, PART 36, COSTS BUDGETING: THE SECOND JUDGMENT IN GIANT CAR LIMITED
The previous post looked at the judgment of Mr Stephen Furst QC in Car Giant Limited -v- the Mayor and Burgesses of the London Borough of Hammersmith [2017] EWHC 197 (TCC). Here we look at the subsequent judgment on costs at [2017]…
SOLICITOR’S BILL AND SPECIAL CIRCUMSTANCES WITH £4.2 MILLION AT STAKE
The case of Eurasian Natural Resources -v- Dechert LLP [2017] EWHC B4 (Costs) has already attracted much attention. A previous hearing before the Court of Appeal involved no less than five QCs just to determine whether aspects of the solicitor…
COSTS AGAINST NON-PARTIES: “FOR THE BENEFIT OF MR…. BAILEY”
In Sony/ATV Music -v- WMPC Music (In liquidation) & Bailey [2017]EWHC389 (Ch) Mr Justice Arnold made an award against a non-party. The judgment reviews the relevant law in detail. “It is therefore necessary to consider what difference it would have…
MERRIX ON APPEAL TO THE HIGH COURT JUDGE: COSTS BUDGETING IS AS DEFINITIVE FOR PAYING PARTY AS IT IS FOR RECEIVING PARTY: JUDGMENT TODAY
In the judgment today in Merrix -v- Heart of England NHS Foundation Trust [2017] EWHC 346 (QB) Mrs Justice Carr allowed an appeal about the significance of costs budgeting when it comes to assessment. “In my judgment, the answer to…
LEGAL COMPANY ENTITLED TO CHARGE FOR ITS TIME: SHACKLETON EXPLORES NEW GROUND
In Shackleton -v-Al Shamsi [2017] EWHC 304 (Comm) Mr Justice Teare considered the question of whether a company providing legal services which was the claimant in the action could recover costs for the time of its “proprietor” spent in bringing…
PROPORTIONALITY, ASSESSMENT AND PREMIUMS: THE NEED FOR CAREFUL CASE PLANNING: £72,320 REDUCED TO £24,604
In Rezek-Clarke -v- Moorfields Eye Hospital NHS Foundation Trust [2017] EWHC B5 (Costs) Master Simons upheld a decision to assess costs, claimed at £72,320.85 to £24,604.40. The judgment emphasises the need for careful case planning, and consideration of proportionality, in…
BABIES, BUNDLES, HUMAN RIGHTS, PROPORTIONALITY, CONDUCT AND COSTS:ALL IN ONE JUDGMENT
The judgment of Mr Justice Cobb in AZ -v- Kirklees Council [2017] EWFC 11 contains much of interest to the legal profession generally. It shows the danger of failing to comply with court directions; make or respond to appropriate offers…
RASTIN RESURRECTED: DO THE NEW RULES RE-INTRODUCE AUTOMATIC STRIKING OUT?
There have been comments on Twitter, and now in the Gazette, that “automatic striking out” is being introduced by the rules coming into force on the 6th April 2017. This is true, however it is important that the rules are…
NEW RULES COMING INTO FORCE: COSTS BUDGETING AND QADER RESULT CODIFIED
The Civil Procedure (Amendment) Rules 2017 were made on the 3rd February. Most of these come into force on the 6th April 2017. The new rules are available here COSTS BUDGETING The amendments set out below may be perplexing. However…
CELEBRITY TITTLE TATTLE IS NOT NEWS: A DECISION AS TO COSTS
The case of Stone -v- Flynet Pictures Limited [2017] EWHC B3 (Costs) is likely to attract the headlines because the second claimant was David Walliams. It is also likely to attract the pun writers ( Litigation Futures has already done…
APPLICATION FOR INDEMNITY COSTS REFUSED: THE JUDGE LOOKS AT THE COSTS BUDGET OF THE LOSING PARTY
We have looked many times at cases where judges have considered granting indemnity costs. This issue was considered by Mr Justice Coulson in MacInnes -v- Gross [2017]EWHC 127 (QB). One interesting aspect is that the judge looked at the losing…
FIXED COSTS APPLY TO APPLICATIONS FOR PRE-ACTION DISCLOSURE: COURT OF APPEAL DECISION TODAY
The Court of Appeal judgment today in Sharp -v- Leeds City Council [2017] EWCA Civ 33 deals with an important point about fixed costs and applications for pre-action disclosure. KEY POINTS An application for pre-action disclosure made by a claimant…
DISMAL CORRESPONDENCE, COSTS AND CONDUCT: THE ADMINISTRATIVE COURT GIVES A WARNING
It is a rare to have a specific judgment from the Administrative Court on the question of costs. In Taylor -v- Honiton Town Council [2017] EWHC 101 (Admin) Mr Justice Edis considered issues relating to costs. “I consider that, generally,…
EVIDENCE, PROPORTIONALITY AND PREMIUMS II: NO SAVING OF ENERGY HERE
We have already looked at the judgment of Master Haworth in Savings Advice Limited -v- EDF Energy Customers Ltd [2017] EWHC B1 (Costs) in relation to the admissibility of evidence. Here we look at the judgment in relation to calculation of…
DISCLOSING DETAILS OF COSTS INFORMATION PROVIDED FOR MEDIATION : DISCLOSURE ALLOWED: HIGH COURT DECISION
In Savings Advice Limited -v- EDF Energy Customers Ltd [2017] EWHC B1 (Costs) Master Haworth had to consider the issue of admissibility of evidence relating to a mediation. KEY POINTS Information provided about costs in the run up of a mediation…
PROPORTIONALITY AND ADDITIONAL LIABILITIES: A SCCO DECISION THAT DIFFERS FROM BNM
I am grateful Alan Mendham of Gadsby Wicks to for sending me a copy of the decision of Master Brown in Murrells -v- Cambridge University NHS Foundation Trust (SCCO 17th January 2017) a case that re-visits the issue of proportionality and…
ISSUE BASED COSTS ORDERS: ITS NOT MONEY IN THE BANK
The judgment of Sir Anthony Edwards-Stuart in Lloyds Bank -v- McBains Cooper [2017] EWHC 30 (TCC) considers the question of issue based costs orders. What is interesting here is: Neither party appears to have made a valid Part 36 offer….
FIXED RECOVERABLE COSTS SEMINAR WITH LORD JUSTICE JACKSON: LEEDS, 6th FEBRUARY 2017
There are a limited number of places available for solicitors at the : Fixed Recoverable Costs Seminar with Lord Justice Jackson – Monday 6 February 2017 – 1.30pm to 5pm at DAC Beachcroft St Paul’s House. DETAILS Fixed Recoverable Costs…
INDEMNITY COSTS ORDER AGAINST DEFENDANT UPHELD BY COURT OF APPEAL: OFFERS AND CONDUCT: MANNA II
The second post on the Court of Appeal decision in Manna -v- Central Manchester Hospitals NHS Trust [2017] EWCA Civ 12 relates to the Court’s upholding of the trial judge’s award of indemnity costs. “A judge should in my view be…
INSURANCE, FUNDING AND LITIGATION: INSURERS HAD TO PAY SOLICITORS
There is an interesting judgment by Stuart Brown QC (sitting as a judge of the High Court) in Nesbit Law Group LLP -v- Acasta European Insurance Company Limited (Leeds Mercantile Court 15.9.16). The judgment is available here nesbitjudgment A judgment on…
COSTS, INDEMNITY COSTS AND THE EXPENSIVE CONSEQUENCES OF A SIEGE BASED MENTALITY
It is surprising how often cases that have been looked at because of issues in relation to the evidence at trial are reported again on the issue of costs. The Ocensa Pipeline Group Litigation case is such an action. I…
CIVIL LITIGATION REVIEW OF 2016: PROMISCUOUS BUNDLES & THAT CRAZY LITTLE THING CALLED PROPORTIONALITY
This is the third annual review of the year on this blog. 2016, as ever, has been an interesting year. As ever, a comprehensive review can be found in Herbert Smith Freehills A litigator’s yearbook: 2016 (England and Wales). PREDICTIONS…
COSTS AT THE END OF A CASE: INDEMNITY COSTS, PAYMENTS ON ACCOUNT AND GOING BEYOND THE COSTS BUDGET
In Barkhuysen -v- Hamilton [2016] EWHC 3371 (QB) Mr Justice Warby considered matters relating to costs after a trial. The defendant’s conduct led to an order for indemnity costs being made. The judge also identified those areas in which the claimant…
PART 36 CONSEQUENCES AND A FIXED COSTS REGIME: WHAT HAPPENS WHEN THEY MEET?
In the judgment today in Phonographic Performance Ltd -v- Raymond Hagan [2016] EWHC 3076 (IPEC) Judge Hacon considered the interaction between a fixed costs regime and Part 36. KEY POINTS The fixed cost rules in the Intellectual Property Enterprise Court…
JUDGE USES COSTS BUDGET TO ASSESS COSTS AT THE END OF A TRIAL: THE RELEVANCE OF THE BUDGET & WHEN SHOULD THE COURT GO OUTSIDE IT?
In Sony Communications International AB -v- SSH Communications Security Corporation [2016] EWHC 2985 (Pat) Mr Roger Wyand QC (sitting as a Deputy High Court Judge) used the costs budget to carry out an assessment of the costs at the end…
PROPORTIONATE COST ORDERS WHEN COSTS ARE £8 MILLION AND £10 MILLION APIECE: HIGH COURT DECISION
We have already looked at the decision in Amey LG Limited -v- Cumbria County Council [2016] EWHC 2496 (TCC) in relation to the question of proportionality. However the judgment contains much more of interest in relation to costs. It provides an…
PROPORTIONALITY DOES NOT AFFECT A PROPORTIONATE COSTS ORDER: HIGH COURT DECISION
There are many aspects of the judgment in Amey LG Limited -v- Cumbria County Council [2016] EWHC 2496 (TCC) that are of interest to readers of this blog. Here I want to explore the judgment in relation to proportionality. “The…
THIRD PARTY FUNDING: YOU WANT THE PROFITS YOU TAKE THE RISKS: EXCALIBUR IN THE COURT OF APPEAL
In Excalibur Ventures LLC -v- Texas Keystone LLC [2016] EWCA Civ 1144 the Court of Appeal confirmed that commercial funders are liable to indemnify on the indemnity costs basis. “I can see no principled basis upon which the funder can…
THE DANGER OF NOT REPLYING TO CORRESPONDENCE: COSTS AWARDED AGAINST DEFENDANTS (& THE NEED FOR CO-OPERATION WHEN INSTRUCTING EXPERTS)
The judgement of Chief Master Marsh in UPL Europe Limited -v- Agchemaccess Chemicals Limted [2016] EWHC 2898 (Ch) provides an object lesson in the dangers of failing to reply to correspondence. The judgment also contains important observations about need for…
QADER 2: REMAINING PROBLEMS AND ISSUES: THE CONTINUING DEBATE
The post yesterday on the Qader decision has led to a large number of comments. These are easy to overlook. I have placed the comments here since these outline the issues that remain unresolved. I have added some sub-headings, but…
QADER IN THE COURT OF APPEAL: FIXED COSTS NO LONGER APPLY TO ACTIONS ALLOCATED TO THE MULTI TRACK
Perhaps the most surprising thing about the decision of the Court of Appeal in Qadar -v- Esure [2016] EWCA Civ 1109 is the route that had to be taken to get to the result. The Court of Appeal added, to…
TALES FROM COSTS LAW CONFERENCE IV: PROPORTIONALITY – A LITIGATOR'S SURVIVAL GUIDE V
The issue of proportionality raised its head more than once at the recent ACL conference. However I addressed the issue directly (or perhaps obliquely). My central argument being that proportionality requires a fundamentally different approach to litigation. Further there is…
TALES FROM COSTS LAW CONFERENCE III: SATELLITE NAVIGATION, MERRIX AND COSTS BUDGETING
One issue discussed at the Association of Costs Lawyers in Manchester on the 24th October was the decision in Merrix -v- Heart of England NHS Foundation Trust [2016] EWHC B28 (QB). The question of whether a detailed assessment is needed…
PART 36: OFFER DID NOT COVER COSTS OF ADJUDICATIONS
In Wes Futures Limited -v- Allen Wilson Construction Limited [2016] EWHC 2863 (TCC) Mr Justice Coulson considered the terms of an offer from the claimant that the Defendant accepted 10 months afterwards. Curiously it was the claimant that was arguing…
A DISPOSAL IS A "TRIAL": COURT OF APPEAL DECISION TODAY
Several people have kindly sent me details of the Court of Appeal decision in Bird -v- Acorn Group Limited [2016] EWCA Civ 1096. The Court considered whether a matter listed for a disposal under the EL/PL Protocol was a “trial”…
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