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”…
COSTS MANAGEMENT AND PROPORTIONALITY IN ACTION
Issues of costs budgeting and proportionality were considered by Mr Justice Roth in Agents’ Mutual Limited -v- Gascoigne Halman [2016] CAT 21. It provides an interesting example of the judicial approach to proportionality and costs budgeting. “Proportionality is fundamental to…
FUNDAMENTAL DISHONESTY FINDING SET ASIDE ON APPEAL
The judgment of His Honour Judge Hodge QC in Meadows -v- La Tasca Restaurants Limited [2016]EW Misc B28 (CC) (16 June 2016) is now available on Bailli. It contains some important observations about findings of fundamental dishonesty. “In my judgment,…
PROPORTIONALITY AND COSTS: A JUDGMENT ON APPEAL
In the judgment today in Tui UK Ltd -v- Tickell & Others [2016] EWHC 2741 (QB) Mrs Justice Elisabeth Laing DBE (sitting with Master Leonard as an assessor) dismissed an appeal by the defendants on an argument that the costs…
TALES FROM COSTS LAW CONFERENCE II: THE RISE OF SOLICITOR AND OWN CLIENT COSTS DISPUTES
One of the predictions made by several speakers at the Association of Costs Lawyers conference last week was the likelihood of a rise in the number of solicitor and own client disputes in relation to costs. Clients are now paying…
COSTS BUDGETING: PILOT SCHEME IN THE CHANCERY DIVISION IN LEEDS
Leeds District Registry has a pilot scheme in relation to costs budgeting. It enables the parties to agree to limit the extent of costs budgeting. The parties can, by agreement, file a simple costs budget with the Directions Questionnaire. If…
COSTS BUDGETING: IT'S JUST A PHASE I'M GOING THROUGH
One advantage of going to conferences is that it usually gives rise to ideas for the blog. So speaking at the Association of Costs Lawyers conference yesterday has given rise to a whole host of issues which will be explored…
WHEN SHOULD A WINNING PARTY PAY THE COSTS OF THE OTHER SIDE?
In Hospira UK Limited -v- Cubist Pharmaceuticals LLC [2016] EWHC 2661 Pat Mr Justice Henry Carr considered the question of when an “issue based” costs order should be made. “In my view, this apparent dichotomy may be resolved by a…
REASONABLENESS AND PROPORTIONALITY: A DIRECT IMPACT UPON LITIGATION DECISIONS
I have been writing for some time about the impact of “proportionality” upon the practice of litigation itself. One example of this can be found in the judgment of Master James in Briggs & 598 others -v- First Choice Holidays…
A JUDGMENT ON THE RELATIONSHIP BETWEEN COSTS BUDGETING AND THE ASSESSMENT OF COSTS: MAPPING & SURVEYING THE TERRAIN
In a judgment given today in Merrix -v-Heart of England NHS Foundation Trust Regional Costs Judge District Judge Lumb (sitting in Birmingham) considered the extent to which the costs budgeting regime fettered the powers and discretion of the costs judge…
THIS COSTS BUDGETING THING – IT IS NOT THAT IMPORTANT: WELL THINK AGAIN
There are some important observations made by Mr Justice Roth in Agents’ Mutual Limited -v- Gascoigne Halman Limited [2016] EWHC 2315 (Ch) in relation to both costs budgeting and security for costs. KEY POINTS There is no duty on a…
RECOVERING LITIGATION FUNDING COSTS: A HIGH COURT CASE -BUT ABOUT ARBITRATION PROCEEDINGS
I am grateful to Professor Dominic Regan and Nicholas Bacon QC for sending me a copy of the decision in Essar Oilfields -v- Norscot [2016] EWHC 2361 (Comm).A decision of His Honour Judge Waksman QC sitting as a Judge of…
PROPORTIONATE COSTS IN A FAMILY CASE: £33,813 REDUCED TO £3,737.50
In K -v- K [2016] EWHC 2002 (Fam) Mr Justice Macdonald reduced the costs of a successful party to an appeal in a family case. “The stringent test of proportionality in relation to costs incurred applies with equal force in…
QOCS & DISCONTINUANCE: ANOTHER CASE (WHERE THE CLAIMANT WAS SUCCESSFUL)
I am grateful to barrister James Bentley for drawing my attention to the judgment of Mr Recorder Berkley in Magon -v- Royal & Sun Alliance Insurance PLC (26th February 2016). Another decision in relation to QOCS and discontinuance. The District Judge…
NON-SOLICITOR LITIGATION ENTITIES AND WASTED COSTS: WANT TO BE £102,000 OUT OF POCKET?
An earlier post looked at the issues relating to litigation being conducted by an non-authorised entity. In M A Lloyd & Son Ltd -v- PPC International Limited [2016] EWHC 2162 (QB) issues of wasted costs arose in relation to a…
A BLUEPRINT FOR TROUBLE? A CAUTIONARY TALE FOR ANYONE CONSIDERING "ALTERNATIVES" TO SOLICITORS IN LITIGATION
The judgment of Master Matthews in Lyons -v-Kerr-Robinson [2016] EWHC 2137 (Ch) contains a cautionary tale for anyone proposing to use an alternative to solicitors to conduct their litigation. The defendant in this case used licensed conveyancers. Their charges were…
PAYING THE CORRECT COURT FEE: ACTION STAYED: SANITY IS BREAKING OUT
There are several interesting issues arising out of the judgment of Master Clark in Lifestyles Equities C.V. -v- Sportsdirect.Com Retail Limited [2016] EWHC 2092. In particular the fact that the decision in Richard Lewis & Others -v- Ward Hadaway [2015]…
COSTS BUDGETING IS APPROPRIATE AND NECESSARY IN A HIGH VALUE CASE : BUT IT WAS NOT APPROPRIATE TO ORDER A SPLIT TRIAL
In Signia Wealth Limited -v- Marlborough Trust Company Limited [2016] EWHC 2141 (Ch) Chief Master Marsh considered two issues relating to case management: whether costs budgeting should apply and whether a split trial was appropriate. KEY POINTS Costs budgeting A…
APPLICATION TO DISCLOSE THIRD PARTY FUNDER REFUSED
The opening passages of the judgment of H.H. Judge Keyser Q.C. in Dawnus Sierra Leone Limited -v- Timis Mining Corporation Limited [2016] EWHC B19 (TCC) deal with the issue of disclosure of details of third party funding. KEY POINTS A…
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