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…
BILLING YOUR OWN CLIENT: FIVE IMPORTANT LESSONS FROM THE HIGH COURT
There are number of important lessons to be drawn from the judgment yesterday of Master Gordon-Saker in Rahimian -v- Allan Janes LLP [2016] EWHC B18 (Costs). THE CASE The claimant sought an order that the defendant firm of solicitors deliver…
INCREASED COURT FEES FROM THE 25th July 2016: AN OVERVIEW & USEFUL LINKS
There have been requests, via twitter, that I publicise the increase in court fees that came into effect on the 25th July. These are not universal increases (they do not increase issue fees in Part 7 claims for instance -…
CLAIMANT ESTOPPED FROM RELYING ON QOCS: THE NEED TO BE ACCURATE
I am grateful to barrister Matthew White for sending me details and a copy of the decision of His Honour Judge Lopez in Price -v- Egbert H Taylor & Company Limited (16th June 2016). This is the second judgment in the…
HAS A PART 36 OFFER BEEN BEATEN WHEN THE VALUE OF CURRENCY CHANGES? A HIGH COURT DECISION
The judgment of Mr Justice Leggatt today in Novus Aviation Ltd -v- Alubaf Arab International Bank BSC (c) [2016] EWHC 1937 (Comm) contains some interesting observations on Part 36 offers. KEY POINTS A claimant “beat” its own Part 36 offer…
YOU CAN BE A TOUGH NEGOTIATOR- YOU CAN ALSO FALL FLAT ON YOUR FACE: HIGH COURT CASE EXAMINED
The law of privilege prevents a close study of the negotiation process in most cases. That is why everyone involved in litigation could benefit from reading the judgment today of Mrs Justice Slade in FPH Law -v- Brown [2016] EWHC…
COSTS BUDGETING – THE KEY DATES: A QUICK REMINDER TO AVOID A SHARP (BUT NOT NECESSARILY SHORT) SHOCK
You would think that everyone involved in litigation would know that new rules as to cost budgeting came into force on the 6th April 2016. However, judging from some of the blank (and worried) looks I have seen recently when…
WANT TO WORK HARD, WIN AND STILL NOT GET PAID? WHEN THE CFAS DID NOT COVER THE COSTS: BAD NEWS FOR SOLICITORS AND COUNSEL
The judgment today of Mr Justice Warby in Radford -v- Frade [2016] EWHC 1600 (QB) contains an important warning in relation to the construction of CFAs both for solicitors and counsel. KEY POINTS A solicitor entered into a CFA with…
NEW RULES ON COSTS CAPPING
New rules (The Civil Procedure (Amendment No.2) Rules 2016 were passed yesterday which amend CPR Part 3 in relation to costs capping. They are of relatively limited ambit, applying only to Judicial Review applications. They replace protective costs orders in…
SWITCHING FROM LEGAL AID TO CFA: THE SUCCESSFUL APPEAL
The saga relating to the assessment of costs where a claimant changed from public funding to a conditional fee agreement has been dealt with many times on this blog*. All of these issues are now dealt with in the judgment…
CLAIMANT'S PART 36 OFFERS: WHEN HAS THE CLAIMANT BEATEN ITS OWN OFFER? AN INTERESTING QUESTION
The judgment of HH Judge Pelling QC in Purrunsing -v- A’Court & Co (a firm) [2016] EWHC 1582 (Ch) considers the impact of interest on a claimant’s Part 36 offer. Should the court simply compare the offer with the sum…
COSTS BUDGETING & DAVID -v- GOLIATH: DOES IT GIVE THE "LITTLE GUY" A CHANCE?
Costs budgeting remains highly controversial. One question that is open to debate is – is it useful? Its utility may be most apparent in cases where the sizes and resources of the litigants are vastly disparate. (Many personal injury lawyers…
PART 36: ADDITIONAL AMOUNTS AND INTEREST
In Bolt Burdon -v- Tariq [2016] EWHC 1507 (QB) Mr Justice Spencer considered the appropriate approach to additional liabilities where a claimant beats its own Part 36 offer and interest was awarded on a contractual basis. However the judgment appears…
WHO WON? CLAIMANTS GET 33% OF THEIR COSTS AFTER TRIAL
In the judgment today in Kupeli -v- Cyprus Turkish Airlines [2016] EWHC 1478 (QB) Mrs Justice Whipple considered issues relating to costs liability after the trial of a preliminary issue. “….there is a world of difference between a case which…
PROPORTIONALITY II (THE EXTENDED ALBUM EDITION)
The earlier post on the decision in Dr Brian May -v- Wavell Group Plc [2016] EWHC B16 (Costs) outlined the decision in summary. This is a case that justifies an extended examination. REPRISE Following acceptance of the defendant’s Part 36 offer of…
PROPORTIONALITY: WE WILL, WE WILL ROCK YOU
I am grateful to Jon Lord for sending me a copy of the decision of Master Rowley in Dr Brian May -v- Wavell Group Plc given today (16/06/2016). It is another case that centres on proportionality. There was a considerable…
OVERSPENDING ON YOUR COSTS BUDGET? BETTER TELL YOUR CLIENT
Way back in the mist of time (that is post-Mitchell, pre-Denton) I reported a decision of District Judge Lumb on sanctions and costs budgeting. That particular post was then plagiarised without any reference to me (matters were resolved amicably). However…
CONTEMPT PROCEEDINGS AND FUNDING: THE OUTCOME OF A LONG STRUGGLE
I have received an email informing me that, thanks to the help received from a post on this blog they – eventually – obtained legal aid and successfully defended committal proceedings. Although the thanks are addressed to me it is…
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