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…
INDEMNITY COSTS ON APPEAL AFTER PART 36 OFFER
For the second time today I express my thanks to John McQuater. This time for drawing my attention to the Court of Appeal decision on costs in Summers -v- Bundy (11/02/2016)* This case shows the importance of making Part 36…
PART 36: INDEMNITY COSTS WHEN A DEFENDANT ACCEPTS OUT OF TIME
I am grateful to John McQuater for sending me a copy of the judgment of District Judge Besford in the case of Sutherland -v- Khan (21st April 2016) (a copy of the transcript is attached to this blog here …
"THAT PROPORTIONALITY JUDGMENT": 10 KEY POINTS
The post yesterday on the decision of Master Gordon-Saker in BNM -v-MGN Limited [2016] EWHC B13 (Costs) set out the case in some detail. Here are the key points of that decision. KEY POINTS On an assessment of costs on…
PROPORTIONALITY CONQUERS ALL? PROFIT COSTS (AND COUNSEL'S FEES) HALVED
The decision of Master Gordon-Saker in BNM -v-MGN Limited [2016] EWHC B13 (Costs) has already received widespread publicity. The principle of proportionality was used to halve profit costs and counsel’s fees and make a substantial reduction on the insurance premium….
IT'S NOT JUST WINNING BUT HOW YOU PLAY THE GAME: COSTS ORDERS WHEN BOTH PARTIES ASSERT THAT THEY HAVE "WON"
In Milanese -v- Leyton Orient Football Club Limited [2016] EWHC 1263 (QB) Mrs Justice Whipple considered issues relating to costs after a case in which each party claimed to have won. “I remind myself that this is an area where…
QOCS CONTINUE TO APPLY ON APPEAL: HIGH COURT DECISION
In Parker -v- Butler [2016] EWHC 1251 (QB) Mr Justice Edis decided that QOCS protection continued to apply when a claimant appealed. “To construe the word “proceedings” as excluding an appeal which was necessary if he were to succeed in…
FAILING TO PLEAD CASE FULLY CAN LEAD TO YOUR ACTION GOING DOWN THE DRAIN
The Court of Appeal decision today in the case of Court -v- Van Dijk [2016] EWCA Civ 438 is the third case within a month where the courts have considered the adequacy of statements of case. It is also has…
WITNESS STATEMENTS CANNOT REPLACE PLEADINGS &"CUT AND PASTE" WITNESS STATEMENTS ARE UNLIKELY TO IMPRESS
In Chong -v- Alexander [2015] EWHC 735 (CH) Richard Spearman Q.C. (sitting as a Deputy Judge) had to consider several issues relating to statements of case and witness evidence. “…the typographical error (“At” instead of “As”), is replicated in a…
THE SUPREME COURT CONSIDERS THE QUESTION OF EXPENSIVE BUNDLES: COULD IT BE CHEAPER ELECTRONICALLY?
Since Supreme Court decisions on trial bundles are few and far between I am compelled to write about the judgment in Eclipse Film Partners -v- Commissioners for Her Majesty’s Revenue & Customs [2016] UKSC 24. Here the Court considered bundles…
ASSIGNMENT OF CFAS: ROUND 2: ASSIGNMENT CAN TAKE PLACE
In the judgment today in Jones -v- Spire Healthcare Ltd His Honour Graham Wood QC had to determine the issue of whether a CFA can be assigned. The full judgment is an attachment to this post and is available here…
WHEN A PARTY FAILS TO PAY INTERLOCUTORY COSTS: MAKE A PEREMPTORY ORDER
In Peak Hotels -v- Tarek Investments Ltd [2016] EWHC 690 (Ch) Mrs Justice Asplin considered the appropriate approach when a party has failed to pay an interlocutory costs order. There is a succinct summary of the relevant case law. “If…
RTA TRIAL FEE RECOVERABLE IF CASE SETTLES AT TRIAL
In Mendes -v- Hocthtief (UK) Construction Ltd [2016] EWHC 976 (QB) Mr Justice Coulson decided a point of some importance: is the RTA Protocol brief fee recoverable if a matter settles at trial. “… there are sound policy reasons for…
COSTS: NOT EVERY DEFENDANT NEEDED REPRESENTATION ON APPEAL
There are some important observations about costs made by Mrs Justice Carr DBE in RSPCA -v- McCormick & others [2016] EWHC 928 (Admin). THE CASE The RSPCA brought an appeal by way of case stated as to the meaning of…
WHAT IS MEANT BY A "SIGNIFICANT DEVELOPMENT"? AMENDING THE COSTS BUDGET WHEN CLAIM DOUBLES IN SIZE: CLAIMANT GETS THE BOOT
I am grateful to barrister Colm Nugent for his notes of the decision of Mr Justice Picken in Churchill -v- Boot (22/04/2016) in relation to costs budgeting (a summary of this case is also available on Lawtel). KEY POINTS A…
QOCS AND DISHONESTY: YOU CAN TRY TO CHECK OUT ANY TIME YOU LIKE BUT YOU CAN’T ALWAYS LEAVE
Thanks to Sintons LLP there is now a copy available online of the judgment of HH Judge Gosnell in Rouse -v- Aviva Insurance Limited (15th January 2016). This is another case that relates to discontinuance by the claimant in a…
THE RISKS OF JOINING A THIRD PARTY INTO AN ACTION: THE DEFENDANT MAY NOT RECOVER THE COSTS
The judgment on costs in Axon -v- Ministry of Defence [2016] EWHC 883 (QB) highlights the risks of a defendant bringing a Third Party into an action. The defendant was successful, however the claimant was not ordered to pay all…
THE LIMITS OF QOCS: HIGH COURT DECISION TODAY
NB THIS DECISION WAS SUBSEQUENTLY OVERTURNED ON APPEAL. SEE THE POST ON THE APPEAL AVAILABLE HERE In Howe -v- Motor Insurers’ Bureau [2016] 884 (QB) Mr Justice Stewart considered the meaning of an action for “personal injury”. He held that…
£50,000 COSTS INCURRED: £500,000 ALLOWED: HOW DID THAT HAPPEN?
The decision of Mr Justice Spencer in Bolt Burdon Solicitors -v- Tariq [2016] EWHC 811 (QB) is an interesting consideration of non contentious business agreements.” The judge found that an agreement which meant that the solicitors recovered 50% of the damages…
DOES COSTS BUDGETING APPLY TO A FATAL ACCIDENT CLAIM WHERE A CHILD IS A DEPENDANT? SOME MORE DETAIL
Over the weekend I heard two speakers on costs budgeting mention my view that costs budgeting may not now apply to fatal accident claims where children are dependants. Given the potential significance of this, it is worth expanding my concerns….
NEW RULES AND PRACTICE DIRECTIONS TOMORROW: THE TRANSITIONAL PROVISIONS
Following the post about the rule changes coming into force tomorrow there was some discussion about the transitional provisions. The confusion comes about partly because the SI introducing them says the same thing in different ways. However further confusion arises…
RULE CHANGES COMING INTO FORCE: 48 HOURS TO GO
A short, but timely, reminder that new rules come into force on the 6th April 2016. These include: No costs budgeting where the claim is brought on behalf of a child. Normally no costs budgeting when the claimant has limited…
COSTS OF IN-HOUSE SOLICITORS: THE APPROPRIATE APPROACH
In Sidewalk Properties Ltd -v- Twinn [2015] UKUT 0122 (LC) the Upper Tribunal (Lands Chamber) considered the issue of the appropriate rates to be charged by an in-house solicitor and the appropriate basis for an inter-partes award. KEY POINTS The…
APPEAL COSTS ARE PAYABLE IMMEDIATELY: HIGH COURT DECISION
In Khaira -v- Shergill [2016] EWHC 628 (Ch) Richard Spearman QC (sitting as a Deputy Judge) held that costs ordered by the Supreme Court were payable forthwith and an assessment should not be stayed until the end of the case….
THE PROTOCOLS: OFFERS AND RAISING NEW POINTS AT THE HEARING
The 4 New Square website has a copy of an interesting judgment of His Honour Judge Freedman in Mulholland -v- Hughes (18th September 2015). “I regard it as inequitable and unfair for a defendant, for the first time, to raise…
IT'S ALL ABOUT THE COSTS (AND A LOT OF TROUBLE): COURT OF APPEAL CASE CONSIDERED
The Court of Appeal judgment today in Patience -v- Tanner [2016] EWCA Civ 158 is a classic example of the difficulties that arise when a case is, in essence, all about the costs. It shows the danger of making, and…
COSTS BUDGETING: PROPORTIONALITY; CITY FIRMS & COUNSEL WHEN THERE IS £16 MILLION AT STAKE
The judgment today of Mr Justice Morgan in Group Seven Limited -v- Nasir [2016] EWHC 629 (Ch) provides some interesting observations in relation to costs budgeting. It demonstrates that issues of proportionality are important even in a case where £16…
COSTS, FIXED COSTS AND COSTS BUDGETING WHEN MAKING AN INTERIM ORDER: ALL IN THE PINK
The decision of Mr Justice Birss in Thomas Pink Ltd -v-Victoria’s Secret UK Limited [2014] EWHC 3258 has only recently been posted on Bailii. However it contains an interesting example of the court considering the issue of costs, fixed costs…
MOVING FROM PUBLIC FUNDING TO CFA: NOT A REASONABLE STEP IN THIS CASE
NB see the appeals related to these issues discussed here This blog has already reviewed several of the cases where the courts have considered the reasonableness of moving from public funding to a conditional fee agreement. The issue is significant…
PART 36: THE COSTS CONSEQUENCES OF LATE ACCEPTANCE
The case of ABC -v- Barts Health NHS Trust [2016] EWHC 500 (QB) decided earlier today provides an object lesson on the dangers of Part 36. His Honour Judge McKenna considered whether he should depart from the “usual rules” in…
DISCLOSURE OF DEFENDANT'S SOLVENCY: ADVERSE ASSUMPTIONS CAN BE MADE IN THE ABSENCE OF EVIDENCE
The case of Sarpd Oil International Limited -v- Addax Energy SA [2016] EWCA Civ 120 related to the practice of awarding security for costs by an overseas company which did not have to file accounts. The case raises other points…
SWITCHING FROM PUBLIC FUNDING TO A CFA: ANOTHER CASE
NB See the appeal on this case discussed here This blog has followed those cases where judges have decided whether it was reasonable for claimants to switch from legal aid to public funding. Perhaps more to the point, the issue…
LEGAL AID IN CONTEMPT PROCEEDINGS
In an earlier post I set out the judgment of the Court of Appeal in Brown -v- London Borough of Haringey [2015] EWCA Civ 483 about the availability of legal aid in committal proceedings. This included the passage ” The question…
DENTON DOES NOT APPLY TO DELAY IN PROVISIONAL ASSESSMENT
I am grateful to Simon Anderson of Park Square Barristers for his note of the judgment of Deputy District Judge Hill yesterday (4th March 2016) in the case of Martin -v- The Leeds Teaching Hospitals NHS Trust. This decision is…
CHANGES TO COST BUDGETING RULES: KEY DATES AND TIMES
The previous post looked at the changes to costs budgeting coming into force on the 6th April. Here is a list of the key dates and times. These are key dates in litigation and the sanction for failing to…
IMPORTANT CHANGES TO COSTS BUDGETING: THE KEY POINTS
New rules in relation to costs budgeting come into force on the 6th April 2016. They apply to proceedings commenced on or after 6th April 2016. EXEMPTION FOR CHILDREN 5. In rule 3.12(1), for subparagraph (c), substitute— “(c) where in…
THE SOLICITOR, THE LIQUIDATOR AND THE CFA: STEVENSDRAKE THE JUDGMENT AT TRIAL
In Stevensdrake -v- Hunt [2016] EWHC 342 (Ch) His Honour Judge Simon Barker QC (sitting as a judge of the High Court) decided that, despite the clear wording of a conditional fee agreement, the defendant was not personally liable to…
PROBATE FEES,COSTS AND FATAL ACCIDENTS: SIX KEY POINTS
There has been major controversy recently about the proposed increase in probate fees. In particular there was some concern, expressed on twitter, that claimants could not afford to issue proceedings. There are a number of points that need to be…
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