ANOTHER CASE WHERE THERE WAS AN INVALID PART 36 OFFER; NO RESPONSE TO OFFERS TO MEDIATE AND NEITHER PARTY RECOVERED COSTS
There is a brief report on Lawtel of the Court of Appeal decision in NJ Rickard Ltd -v- Holloway (CA 03/11/2015)*. It is an example of: (i)the importance of making a valid Part 36 offer; (ii)an example of the consequences…
WHAT IS MEANT BY "PROPORTIONALITY"? CONSIDERATION BY THE SENIOR COURTS COSTS OFFICE
In Hobbs -v- Guy’s and St Thomas’ NHS Foundation Trust [2015] EWHC B20 (Costs) Master O’Hare considered the question of proportionality in the context of a low value clinical negligence case. “In my judgment, although it was reasonable for the…
YOU'RE AS BAD AS EACH OTHER: NO-ONE IS GETTING ANY COSTS: POWERFUL WORDS IN THE HIGH COURT
In GBM Minerals Engineering Consultants Limited -v- GM Minerals Holdings Limited [2015] EWHC 3091 (TCC) Mr Justice Fraser had some some strong words to say about conduct and costs, resulting in a decision that no order for costs should be…
DAMNED IF YOU DO: DAMNED IF YOU DON'T: AGREEING COSTS BUDGETS AND COMPLYING WITH THE OVERRIDING OBJECTIVE
“Are lawyers colluding on fees?”, asked Rachel Rothwell in the Law Society Gazette yesterday. Rachel was reporting on a concern, albeit a low key one expressed by some judges that parties are “colluding” to keep their fees high in costs…
APPLICATION FOR INDEMNITY COSTS REFUSED: A HIGH COURT DECISION
In the judgment today in Harlequin Property (SVG) Limited -v- Wilkins Kennedy [2015] EWHC 3050 (TCC) Mr Justice Coulson refused an application for indemnity costs and reduced the sum claimed from £51,787.50 to £35,000. THE CASE The claimant made a…
SUCCESSFUL PART 36 OFFER BY CLAIMANT ATTRACTS INDEMNITY COSTS ONLY FROM THE DATE OF EXPIRY OF THE OFFER: A HIGH COURT CASE
In RXDX -v- Northampton Borough Council [2015] EWHC 2938 (QB) Sir Colin Mackay revised an order in relation to indemnity costs following a Part 36 offer. THE CASE On the 12th March 2015 the claimant offered to settle the issue…
DO FIXED COSTS APPLY TO PORTAL CASES ALLOCATED TO THE MULTI TRACK? A COUNTY COURT DECISION – THAT SAYS THAT THEY DO
In Quader -v- Esure Services Limited (Birmingham County Court 15th October 2015) His Honour Judge David Grant considered the issue of whether fixed costs applied to a portal case that was transferred to the Multi Track. THE CASE The judge…
SUING OR DEFENDING ON BEHALF OF AN ESTATE OR TRUST FUND: DID YOU KNOW YOUR COSTS BUDGETS MUST BE FILED WITH THE PLEADINGS?
A solicitor has pointed out to me the surprise provisions of Practice Direction 3F – on Costs Capping. The title of the Practice Directions is deceptive. There are also mandatory provisions in relation to the filing of costs budgets at…
COURT OF APPEAL REFUSES TO ALLOW APPEAL WHERE RELIEF FROM SANCTIONS GRANTED FOLLOWING FAILURE TO GIVE TIMEOUS NOTICE OF FUNDING
In its judgment today in Mischon De Reya -v- Caliendo [2015] EWCA Civ 1029 the Court of Appeal refused the Defendant’s appeal where a claimant had been granted relief from sanctions following a failure to give proper notice of funding….
IS THIS A PART 36 OFFER I SEE BEFORE ME? THAT'S A REALLY IMPORTANT QUESTION
The decision of Mr Justice Morgan in Tim-Alexander Gunther Nikolaus Hertel -v- Artemis International Sarl [2015] EWHC 2848 (Ch) involves a complex set of facts but is extremely important in terms of construction of Part 36 offers. (It is perhaps…
WHEN DOES INTEREST BEGIN TO RUN ON COSTS? AN IMPORTANT DECISION
In Involnert Management Inc -v- Aprilgrange Limited [2015] EWHC 2834 (Comm) Mr Justice Legatt addressed the issues of when interest runs on costs. The problem arose because interest under the Judgments Act 1838 carries interest at 8%. Interest on costs…
LIQUIDATORS CLAIMED £1.1 MILLION IN COSTS: NO ORDER FOR COSTS MADE: NO ROBIN HOOD ORDER HERE
I am grateful to Anton Smith of Ashton Bond Gigg Solicitors for sending me details of the decision of Mr Registrar Jones In Brooks & Willetts (liquidators or Robin Hood Centre Plc) -v- Armstrong 2015 EWHC 2289 (Ch) a copy…
CIVIL LITIGATION BRIEF 20 YEARS AGO: ANY LESSONS FOR TODAY?
I doubt whether anyone knew what a “blog” was 20 years ago. However at that time Civil Litigation Brief was a monthly column in the Solicitors Journal. It is interesting to see how much (or how little) matters have moved…
DEFENDANT COUNTERCLAIMING EXEMPLARY DAMAGES AGAINST FRAUDULENT CLAIMANTS: AN INTERESTING REPORT
There is a report in the DWF update section of the case of Akhtar & Khan -v- Ball, a decision of HHJ Gregory on 10.7.15. It raises an interesting issue in relation to a counterclaim by a defendant faced with…
CHILDREN AND SUCCESS FEES PART 2: WHAT SUCCESS FEE WAS REASONABLE?
We looked earlier at the decision of the Regional Cost Judge Lumb in the case of A & B -v- The Royal Mail Group [2015] EW Misc B24(CC)(14th August 2015). As a result of that case the decision of the success…
THE SUMMARY ASSESSMENT OF COSTS: A PRIMER
In the recent post on the case of SRA -v-Imran we saw the problems posed because the respondent had failed to file a schedule of costs. Rather than order a detailed assessment the judge’s response was to order a “nominal”…
ADMINISTRATIVE COURT AWARDS NOTIONAL COSTS: THE PRICE TO PAY FOR THE ABSENCE OF A COSTS SCHEDULE
There is an interesting exchange at the end of the judgment of Mr Justice Dove in The Queen on the application of the Solicitors Regulation Authority -v- Imran [2015] EWHC 2572 (Admin). A REMINDER This is an example of the…
HOW THE BANKS GOT AWAY WITHOUT PAYING COURT FEES (FOR A WHILE)
The judgment of Master Matthews in Santander UK plc -v- The Royal Bank of Scotland plc [2015] EWHC 2560 (Ch) is an important review of the Norwich Pharmacal principles. However that is not what catches the eye. For a while…
"HOW TO GET SUED, MAKE A LOSS AND BE MISERABLE": 22nd SEPTEMBER 2015: HARDWICKE BUILDING, LONDON: RAISING FUNDS FOR THE BILLABLE HOUR
LITIGATORS: HOW TO GET SUED: MAKE A LOSS AND BE MISERABLE RAISING MONEY FOR THE BILLABLE HOUR APPEAL (ALL PROCEEDS GO TO THE APPEAL) Gordon Exall and PJ Kirby QC. Hardwicke Building, Lincoln’s Inn. TUESDAY 22nd SEPTEMBER 2015 5.30 -…
COSTS, CFAS, ADDITIONAL LIABILITIES AND GOING OUTSIDE PUBLIC FUNDING 2: SURREY -v- BARNET & CHASE
See the appeal on this case discussed here. The previous post looked at the decision of Master Rowley in Hyde -v- Milton Keynes Hospital NHS Foundation Trust [2015] EWHC B17 (Costs). In that case the Master decided that a decision to…
COSTS, CFAS, ADDITIONAL LIABILITIES AND GOING OUTSIDE PUBLIC FUNDING 1: HYDE -v- MILTON KEYNES
NB SEE THE APPEAL ON THESE ISSUES DISCUSSED HERE The decision of Master Rowley in Hyde -v- Milton Keynes Hospital NHS Foundation Trust [2015] EWHC B17 (Costs) has today become available on Bailli. It contains important observations in relation to…
RELIEF FROM SANCTIONS: LATE SERVICE OF NOTICE OF FUNDING
Relief from sanctions following late service of the notice of funding was granted by Mr Justice Simon in Jackson -v- Thompson Solicitors (& others) [2015] EWHC 549 (QB). THE CASE The claimant had failed in an action against multiple defendants…
HIGHER COURT FEES IN THE (NOT TOO DISTANT) FUTURE: THE GOVERNMENT RESPONSE TO CONSULTATION
The government response to the consultation process on court fees is now available. WHAT IT SAYS (“FOR THE MOST PART WE HAVE IGNORED EVERYONE AND THE INCREASES WILL GO AHEAD IN ANY EVENT”). “Following a consultation launched by the Coalition…
THE EFFECT OF QOCS ON LITIGATION: HERE'S THE THING: CASES WILL BE FOUGHT ON THEIR MERITS
There has been much debate about the impact of QOCS on litigation. To date much of this has, inevitably, been speculative. However it is worthwhile reading George Riley’s article, Fundamental dishonesty and litigation in the post-Jackson landscape. This shows, honestly…
"CONDUCT UNRAVELS ALL": INDEMNITY COSTS AND COSTS ON ACCOUNT: A FAMILY CASE
In the judgment today in Joy -v- Joy-Morancho (No 3) [2015] EWHC 2507 (Fam) Mr Peter Singer awarded indemnity costs against the respondent husband. Many of the observations in relation to costs are of general relevance to civil litigators as…
MISCONDUCT ON ASSESSMENT LEADS TO REDUCTION OF COSTS BY 50%: KERINS -V- HEART OF ENGLAND NHS FOUNDATION TRUST
There is a report on Lawtel today of the decision of District Judge Griffith in Kerins -v- Heart of England NHS Foundation Trust (Birmingham, 31st July 2015). The claimant’s costs were reduced by 50% because of misconduct in the assessment…
QOCS, STRIKING OUT AND THE LIABILITY TO PAY IN FULL: A COUNTY COURT DECISION
I am grateful to Colm Nugent of Hardwicke Chambers for sending me a copy of the judgment in Wall -v- British Canoe Union. A decision of HH Judge Lopez in Birmingham County Court on the 30th July 2015. The judgment…
PROPORTIONALITY, ASSESSMENT AND THE COSTS OF BUDGETING: SENIOR COURTS COSTS OFFICE DECISION TODAY
In BP -v- Cardiff & Vale University Local Health Board [2015] EWHC B13 (Costs) Master Gordon-Saker considered several issues relating to proportionality; the format of bills and the costs of costs budgeting. “Having conducted an assessment of the reasonableness of…
CHILDREN, SUCCESS FEES AND DEDUCTIONS FROM DAMAGES : AN IMPORTANT JUDGMENT
The question of child claimants and deductions from damages remains a live and controversial one. The judgment on this issue of the regional costs judge,District Judge Lumb in A & B -v- The Royal Mail Group [2015] EW Misc B24(CC)(14th…
NEW BILL OF COSTS CONSULTATION: A USEFUL LINK
A pilot scheme is being introduced for a new bill of costs model. Initially voluntary the scheme may become compulsory. THE DRAFT BILL AND GUIDANCE DOCUMENTS Useful guidance is available on the Hailsham Chambers website. The draft bill and guidance…
COSTS: THE FACT YOU CAN'T PAY MAKES NO DIFFERENCE: AN IMPORTANT LESSON FOR LITIGANTS
In Bridge -v- Daley [2015] EWHC 2121 (Ch) Judge Hodge QC (sitting as a judge of the High Court) considered submissions made in relation to a losing party paying costs. THE CASE The claimant sought permission to continue a derivative…
LITIGATION AS IT SHOULD NOT BE DONE: GOTCH -v- ENELCO
In Gotch -v- Enelco Ltd [2015] EWHC 1802 (TCC) Mr Justice Edwards-Stuart had strong words to say about the conduct of litigation and costs. KEY POINTS This is a case where five short passages from the judgment itself gives the…
ESSENTIAL READING: "FEES A CROWD WHEN JUSTICE AND POLITICS COLLIDE": A NLJ & LSLA PUBLICATION
There is a section on this blog devoted to links to posts on procedure and costs. Occasionally, however, a post is so important that I feel compelled to draw attention to it. This definitely applies to the publication “Litigation Trends…
COURT OF APPEAL OVERTURNS AWARD OF INDEMNITY COSTS
In Arcadia Group Brands Ltd -v- Visa Inc [2015] EWCA Civ 883 the Court of Appeal, dismissed an appeal on the merits, but nevertheless overturned the judge’s order for indemnity costs. THE CASE The claimants were bringing actions for breaches…
COSTS AND CONDUCT 3: THE COURT OF APPEAL AND ISSUE BASED COSTS ORDERS
This is the third case today about the issue of costs and the conduct of proceedings. It is the most complex, Smith & Nephew plc -v- ConvaTec Technologies Inc [2015] EWCA Civ 803. THE CASE The Court of Appeal allowed…
COSTS AND CONDUCT 2: LOSER PAYS ALL APPLIES: MOORE IS NOT LESS
In The London Borough of Tower Hamlets -v- The London Borough of Bromley [2015] EWHC 2271 (Ch) Mr Justice Norris refused an application for an issue based order and made an order for costs under the general rule that the…
COSTS & CONDUCT 1: MULTIPLE PARTIES, "BULLOCK" AND "SANDERSON" ORDERS AND INDEMNITY COSTS TO THE DEFENDANTS
There are several cases today where the courts have considered the issue of where costs should fall and how judicial discretion should be exercised. The first we consider is Asghar -v- Ahmad [2015] EWHC 2234 (QB) a decision of Mr…
IF YOU ENTER INTO A CONTENTIOUS BUSINESS AGREEMENT WITH YOUR CLIENT ARE YOU PLAYING RUSSIAN ROULETTE?
The judgment of Master Campbell in Addleshaw Goddard LLP -v- Wood & Hellard [2015] EWHC B12 (Costs) has some interesting observations on contentious business agreements and the nature of litigation financing generally. THE CASE The claimant solicitors had entered into…
NEW RULES RELATING TO "NEUTRAL EVALUATION" ; LITIGANTS IN PERSON; ASSESSMENT; SPECIALIST FINANCIAL LIST (AND MORE…)
New rules have been introduced which (for the most part) come into force on the 1st October 2015. Here we look at the key changes. THE RULES The Civil Procedure (Amendment No.4) Rules 2014 were laid before Parliament on the…
THE TRANSITIONAL PROVISIONS OF QOCS: IMPORTANT AND INTERESTING DECISION: THE MEANING OF "PROCEEDINGS"
There is an interesting decision on checkmylegalfees.com website in relation to the transitional provisions of the QOCS regulations. The full transcript of Casseldine -v- The Diocese of Llandaff Board for Social Responsibility (Regional Costs Judge Phillips, Cardiff County Court 15th…
CONDITIONAL FEE AGREEMENTS NOT SENT TO COVENTRY: KEY POINTS AND LINKS
The decision in Coventry -v- Lawrence [2015] UKSC 50 has not led to any major change in practice and procedure (in relation to a costs regime that had already ended anyway). A link to the judgment is here KEY POINTS…
JUSTICE COMMITTEE INQUIRY IN THE EFFECTS OF THE INCREASE IN COURT FEES: HOW TO RESPOND
The Justice Committee is holding an inquiry into the effects of the introduction and levels of the increased court fees. If anyone wants to send their responses to this blog, in addition to the inquiry, I will arrange a specific…
ISSUE BASED COSTS ORDER IN THE ADMINISTRATIVE COURT: A MATTER OF RISKS AND REWARDS
In The Queen on the application of British Academy of Songwriters, Composers and Authorts -v- the Secretary of State for Business, Innovation and Skills [2015] EWHC 2401 (Admin) Mr Justice Green made an issue based costs order. THE CASE The…
SETTING ASIDE NOTICE OF DISCONTINUANCE IN A QOCS CASE: TWO INTERESTING DECISIONS
I am grateful to Rebecca Jones of Hardwicke Chambers for sending me details of an important decision in relation to setting aside a notice of discontinuance served by a claimant in a costs case. The note of the judgment below…
SOLICITORS ARE ENTITLED TO ARGUE THEY SHOULD BE PAID AND ARE NOT LITIGANTS IN PERSON: A HIGH COURT DECISION CONSIDERED
In EMW Law LLP -v- Halborg [2015] EWHC 2005 (Ch) His Honour Judge Purle QC considered some important elements in relation to the ability of solicitors to recover their costs. The judge also found that solicitors are not “litigants in person”…
RETROSPECTIVE CCFA WAS VALID (BUT ONLY JUST): CFAS "AWASH IN A SEA OF ILLEGALITY":THE NEED FOR COMPLIANCE
In Pentecost -v- John [2015] EWHC 1970 (QB) Turner J (sitting with Master Leonard as an assessor) held that a retrospective Collective Conditional Fee Agreement was valid between the client and their solicitors, thus valid for the purpose of enforcing…
COSTS: INDEMNITY COSTS; IMMEDIATE ASSESSMENT OF COSTS; SET OFF & POTENTIAL INSOLVENCY: A HIGH COURT DECISION
In Rawlinson & Hunter Trustees SA -v- ITG [2015] EWHC 1924 (Ch) Mr Justice Morgan considered issues relating to indemnity costs and whether assessment of costs ordered on an interlocutory hearing should take place forthwith. KEY POINTS Although the conduct…
THE LIMITS OF ISSUE BASED COSTS ORDERS: COMMERCIAL LITIGATION IS ABOUT MONEY (WHO KNEW?)
In The Northampton Regional Livestock Centre Company Ltd -v- Cowling [2015] EWCA Civ 651 the Court of Appeal made some important observations about costs, issue based orders and success, particularly in commercial cases. THE CASE The Court of Appeal were…
A WITHDRAWN PART 36 OFFER DOES NOT ATTRACT INDEMNITY COSTS: GULATI -v- MGN
In Gulati -v- MGN [2015] EWHC 1805 (Ch) Mr Justice Mann considered whether indemnity costs should be awarded in circumstances where a Part 36 offer was withdrawn in one case and a “Calderbank” offer made in the other. KEY POINTS…
EVIDENCE, COSTS AND THE CREDIBILITY OF WITNESSES: A CANADIAN VIEW
This blog has discussed issues relating to the judicial approach of the credibility of witnesses many times. Some judges have, shall we say, not been backward in giving their views on the “value” of the evidence of some of the…
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