PROPORTIONALITY AND LITIGATION (4): 10 POINTS TO WATCH OUT FOR ON THE ASSESSMENT OF COSTS TOGETHER WITH USEFUL LINKS
The very word “proportionality” still plays a major part in many cost assessments. The Points of Dispute state, often vehemently, that the costs are wholly disproportional. The Points of Reply respond, usually twice as vehemently, that proportionality is not just…
PROPORTIONALITY AND LITIGATION (3): WHAT DO YOU DO IF YOUR OPPONENT IS BEHAVING DISPROPORTIONATELY?
The previous post in this series looked at cases where the parties had “drifted” into disproportionate conduct and costs. However we should not be naive. Some litigants, and some litigators, will expressly threaten to run up costs as a litigation…
PROPORTIONALITY AND LITIGATION (2): WHERE DOES IT ALL START TO GO WRONG? (AND HOW DO YOU AVOID IT?)
This short series on proportionality is aimed, primarily, at protecting the client and the lawyer. A client may be exposed to excessive costs and the lawyers get blamed for this. There are (it is to be hoped) few cases where…
PROPORTIONALITY IN LITIGATION (1): A TEN POINT GUIDE FOR CIVIL LITIGATORS: A REVIEW OF CASE LAW AND POSTS OVER THE PAST 13 YEARS
Yesterday we looked at a judgment in the Court of Appeal where the sum at stake was £25. The court was, shall we say, “sceptical” about whether this litigation was for the benefit of the actual client. For a while…
COST BITES 456: LET US ALL REMEMBER THAT THE DISPUTE THAT REACHED THE COURT OF APPEAL TODAY WAS OVER THE PRINCELY SUM OF £25: “THE CLIENT HAS NEVER HAD ANY REAL ECONOMIC INTEREST IN THE PURSUIT OF THIS COSTLY LITIGATION”
The judgment given today in the Court of Appeal was the second appeal on the issue. It involved two junior counsel on each side. The sums involved were not large, the Court estimated it to be £25.00. In every other…
COST (MEGA) BITES 378: WHO WOULD SPEND £15,751,483 PLUS VAT TO RECOVER DAMAGES OF £16.91? (WELCOME TO THE SURREAL WORLD OF “COLLECTIVE PROCEEDINGS”: THE CAT ARE CONCERNED THAT LITIGATION IS BEING BROUGHT FOR THE LAWYERS & FUNDERS RATHER THAN CONSUMERS
There are many who have doubts, often profound doubts, about the utility of class actions where each of the recipients will recover minute sums. Those doubters will have their views compounded by the judgment in this case. The likely damages…
COST BITES 372: BILL REDUCED FROM £2.6 MILLION TO £750,000: WHY SUMMARY ASSESSMENTS CAN MATTER (A LOT…)
For many years now we have been looking in detail at summary assessments. On occasion the sums involved, and the reductions that take place, can be considerable. We have such a case here. An initial schedule of £2.6 million (excluding…
THE CIVIL LITIGATION BRIEF TOOLBOX SERIES 2: WHERE DO YOU LOOK WHEN FACED WITH AN ARGUMENT ON ASSESSEMENT THAT COSTS SHOULD BE REDUCED BECAUSE OF “PROPORTIONALITY”?
The principles considered here work for both sides. Where does a receiving party look when the paying party wants to reduce costs because of “proportionality”? Where does a paying party look to gain guidance on such issues. I am here…
COST BITES 282: PROPORTIONALITY OF COSTS CONSIDERED AFTER A LINE BY LINE ASSESSMENT: TAKE YOUR SEATS FOR A CASE ABOUT THE ALBERT HALL…
I am grateful to my colleague Paul Hughes for bringing my attention to this decision of the SCCO in relation to proportionality. It is a case where the paying party specifically raised proportionality as a further and specific issue after…
COST BITES 266: WHAT DOES THE COURT DO IF THE COSTS ARE DISPROPORTIONAL AFTER A LINE BY LINE ASSESSMENT? A WORKING EXAMPLE
Here we look at a judgment relation to proportionality and the assessment of costs. The claimant’s costs had been substantially reduced after a three day assessment but the judge found that the total sum was still disproportional. The judge could…
COST BITES 237: “THROUGHOUT HISTORY, LAWYERS HAVE HAD A BAD REPUTATION”: COMMONSENSE AND PROPORTIONALITY CONSIDERED IN THE FAMILY COURTS
Why spend £13,000 to recover a remedy that will only be worth £1,500? That is the issue considered by Deputy District Judge Hodgson [Professor David Hodson OBE KC (Hons)]. An application was made late. The gain to the applicant was…
COST BITES 203: A SUMMARY ASSESSMENT IN PRACTICE: “PROPORTIONALITY IS NOT JUST ABOUT REDUCING COSTS TO THE LOWEST POSSIBLE FIGURE”
In Ferko v Ealing Magistrates Court & Ors [2024] EWHC 3297 (Admin) Mr Justice Sweeting carried out a summary assessment. In doing so he set out some key principles in relation to the assessment of costs. In particular issues relating…
ARGUING ABOUT THE SIZE OF THE BILL: ANOTHER ROUND IN THE DISCLOSURE OF AGENCY COSTS AND MEDICAL FEES WAR: CLAIMANT ORDERED TO COMPLY WITH PART 18 REQUESTS FOR A BREAKDOWN OF THE INVOICE
I am grateful to Ben Millns from Kennedys for sending me a copy of the decision in Parsons -v- Stevens, a copy of which is available here. Deputy District Judge Fentem decided that it was appropriate to make an order…
COSTS BITES 86: COSTS OF INSTRUCTING LEADING COUNSEL IN A £115,000 CLAIM WERE NOT RECOVERABLE: A LITIGANT CANNOT “DEPLOY UNLIMITED RESOURCES TO FIGHT CASES AND EXPECT TO RECOVER THOSE COSTS FROM THE LOSING PART”
In Coram v D R Dunthorn & Son Ltd [2023] EWHC 731 (SCCO) Deputy Costs Judge Joseph affirmed his original decision on provisional assessment that the costs of instructing leading counsel to attend a three day trial were not recoverable…
COST BITES 54: THOSE COSTS BUDGETS MAY BE AGREED BUT THEY ARE NEITHER REASONABLE NOR PROPORTIONATE: AND THE COURT IS GOING TO SAY SO.
In Lemos & Ors v Church Bay Trust Company Ltd & Ors [2023] EWHC 157 (Ch) Insolvency and Companies Court Judge Jones made it clear that he did not accept the reasonableness of the costs budgets of both parties. The…
COST BITES 33: BUDGETS: PROPORTIONALITY, COUNSEL’S FEES (“STRATOSPHERIC”, OR “ASPIRATIONAL”) THE COST OF EXPERTS AND THE COSTS OF TRIAL
There is a detailed exposition of the principles relating to costs budgeting in the judgment of Mrs Justice Joanna Smith in Various Sam Borrowers v BOS (Shared Appreciation Mortgages) No. 1 Plc & Ors [2022] EWHC 2594 (Ch). The judgment…
ANALYSIS OF BELSNER 1: WELL – THIS IS ALL A BIT BONKERS REALLY
The first point that has to be made about the decision in Belsner v CAM Legal Services Ltd [2022] EWCA Civ 1387 relates to economics. The argument that took four days in the Court of Appeal was over a small…
“NO ORDINARY LITIGANT WOULD INCUR COSTS APPROACHING £50,000 IN ORDER TO RECOVER £3,000”: DATA BREACH CASE TRANSFERRED FROM HIGH COURT TO SMALL CLAIMS TRACK
In Cleary v Marston (Holdings) Ltd [2021] EWHC 3809 (QB) Mr Justice Nicklin ordered a transfer of a data breach case from the High Court to the small claims track in the county court. “It is important that claimants…
AMBIGUITY AS TO DATE DID NOT INVALIDATE A PART 36 OFFER: HIGH COURT DECISION
In Kings Security Systems Ltd v King & Anor [2021] EWHC 653 (Ch) Andrew Lenon Q.C. (sitting as a Deputy Judge of the Chancery Division) rejected the defendants’ arguments that an ambiguity as to the date meant that a Part…
PROPORTIONAL COSTS: THE LITIGATOR’S WATCHWORDS: 12 PRACTICAL STEPS FOR THE PRUDENT LAWYER…
The issue of “proportionality” is central to contemporary litigation. However it is rarely examined in detail and rarely discussed. Attempts to analyse how proportionality can be achieved are even rarer. Here I reprise some points made several years ago about…
“YOURS IS BIGGER THAN MINE”: COMPARISON OF COSTS NOT ALWAYS APPROPRIATE
In Monex Europe Ltd v Pothecary & Anor [2019] EWHC 2204 (QB) Clive Sheldon QC (sitting as a Deputy High Court Judge) did not accept an argument that the fact that defendants’ costs were much higher than the claimant’s figures…
RECOVERING THE COST OF ATTENDING THE INQUEST: MUST BE BOTH RELEVANT AND PROPORTIONATE (BUT PROPORTIONALITY IS NOT JUST ABOUT MONEY)
The judgment today in Fullick & Ors v The Commissioner of Police for the Metropolis [2019] EWHC 1941 (QB) deals with the, often challenging, question of whether the costs of attending an inquest is recoverable in cases where the claimant…
PROPORTIONALITY AND PREMIUMS IN CLINICAL NEGLIGENCE CASES: COURT OF APPEAL JUDGMENT TODAY
In West -v- Stockport NHS Foundation Trust [2019] EWCA Civ 1220 the Court of Appeal considered the question of proportionality in relation to clinical negligence actions and the “recoverable” element of ATE insurance. I am grateful to Sean Linley for…
APPEAL ON COSTS BUDGETING : CLAIMANT’S APPEAL UNSUCCESSFUL: AN OFFER AS TO COSTS DOES NOT BECOME THE BENCHMARK FIGURE
In Gray v Commissioner of Police for the Metropolis [2019] EWHC 1780 (QB) Mr Justice Lambert dismissed the claimant’s appeal from cost budgeting decisions. The judgment contains important observations about the nature of cost budgeting hearings and appeals on…
PROPORTIONALITY: SHOULD HINDSIGHT BE A FACTOR? EXTRACTS FROM O’HARE AND BROWNE ON CIVIL LITIGATION (YOU SAW IT HERE FIRST…)
I am grateful to John O’Hare for sending me an extract from the next edition of O’Hare and Browne on Civil Litigation (19th edition). It deals with proportionality and, in particular, whether hindsight should be a factor in assessing proportionality. …
APPEAL AGAINST DISPROPORTIONAL COSTS FAILS: REASONABLE TO USE LEADING COUNSEL IN A £25,000 CLAIM
In East Sussex Fire And Rescue Service v Austin [2019] EWHC 1455 (QB) Mrs Justice Lambert dismissed the defendant’s (paying party) appeal. The defendant argued that costs were disproportional, that the use of leading counsel was unreasonable – as was…
PROPORTIONALITY: A WARNING AGAINST A “CLIENT-CENTRIC” APPROACH: £74,000 REDUCED TO £15,000: HIGH COURT CASE ON APPEAL
In Malmsten v Bohinc [2019] EWHC 1386 (Ch) Mr Justice Marcus Smith allowed a paying party’s appeal in an assessment and reduced a bill from £74,328.90 to £15,000. There is a detailed consideration of how the proportionality test should be…
REASONABLE COSTS WERE PROPORTIONATE: MORE THAN MONEY AT STAKE – COSTS NOT REDUCED
In Various Claimants (In Wave 2 of the Mirror Newspapers Hacking Litigation) v MGN Ltd[2018] EWHC B19 Master Saker had to consider the issue of proportionality of costs directly, and held that – on the facts of that case -…
PROPORTIONALITY: A LITIGATOR’S SURVIVAL GUIDE VIII: PROPORTIONALITY LEADS TO BASE COSTS BEING REDUCED FROM £115,906.00 TO £75,000
I am grateful to my colleague Robin Dunne for sending me a copy of the decision of HHJ Auerbach in Reynolds -v- One Stop Limited (21st September 2018). A copy of the judgment is available A79YM916 Reynolds v One Stop…
PROPORTIONALITY: A LITIGATOR’S SURVIVAL GUIDE VII: FAILURE TO FOCUS ON THE SIMPLE ISSUE LED TO DISPROPORTIONATE COSTS
It can be said that the clue here is in the name of the case – London Borough of Hounslow v A Father & Mother (Costs in the Court of Protection – Disproportionate litigation) [2018] EWCOP 23. This is a…
COSTS BUDGETING AND PROPORTIONALITY: JUST THE TICKET: JUDGE REJECTS COMPARISON WITH DEFENDANT’S BUDGET WHEN IT “JUST DOES NOT MAKE SENSE”
The issue of costs budgeting and proportionality was considered by Mr Justice Birss in Red and White Services Ltd v Phil Anslow Ltd & Anor [2018] EWHC 1699 (Ch). The judge was prepared to take a robust approach to proportionality. There…
PROPORTIONAL COSTS IN A FATAL CASE: THE MATTERS THAT CAN RECOVERED
The facts in Powell & Ors v The Chief Constable of West Midlands Police [2018] EWHC B12 (Costs) are quite extraordinary. This judgment, on the issue of costs, adds to the material relating to proportionality. Equally important is the fact that…
COSTS: PHONE HACKING AND REPUTATION: PROPORTIONALITY IS NOT JUST ABOUT THE SUMS AT STAKE
In Various Claimants (In Wave 1 of the Mirror Newspapers Hacking Litigation) v MGN Ltd [2018] EWHC B13 (Costs) Master Gordon-Saker addressed the elements of “proportionality”. “The rule does not prevent the recovery of costs in an amount greater than the…
COSTS & PROPORTIONALITY: ITS NOT ALL ABOUT THE MONEY: DEFENDANT’S COSTS WERE NOT DISPROPORTIONAL
Proportionality was the central issue in the judgment of Master Leonard in Arjomandkhah v Nasrouallahi [2018] EWHC B11 (Costs). The Master rejected the claimant’s argument that the defendant’s costs (roughly one-third of the claimant’s costs budget) was disproportional. “In contrast to…
ERRORS BY YOUR OWN EXPERT ARE NOT GOING TO LEAD TO A WIN ON APPEAL: A KNOTTY SITUATION
In Network Rail Infrastructure Ltd v Williams & Anor [2018] EWCA Civ 1514 the Court of Appeal considered a “rather obscure” argument that an error by the appellant’s expert should lead to damages being reconsidered. “It would be quite wrong…
FIFTH BIRTHDAY REVIEW 6: PROPORTIONALITY: THE POSTS AND 12 PRACTICAL STEPS
The series “Proportionality & Survival for Litigators” started in December 2014. At the outset I said it could be a long-running and difficult series – it is definitely still ongoing. It remains the case that little written is on proportionality, …
THE COURT “REGRETTED IF NOT DEPLORED” EXCESSIVE EXPENDITURE ON JURISDICTION ISSUES: COURT OF APPEAL DECISION
In Ogale Community & Ors v Royal Dutch Shell Plc & Anor [2018] EWCA Civ 191 the Court of Appeal made observations about the need to keep applications about jurisdiction in proportion. “… hearings concerning the issue of appropriate forum should…
PROPORTIONALITY, CASES AND COMMENT: A ROUND UP
The post yesterday on the Brian May case and proportionality highlighted the fact that this is still a major issue in litigation. It is a good time to set out the posts on this blog on proportionality to date. PREVIOUS…
THE BRIAN MAY COSTS CASE: TRANSCRIPT NOW AVAILABLE: PROPORTIONALITY APPEAL DID NOT BITE THE DUST
Thanks to the good offices of the ACL the judgment on appeal of May -v- Wavell Group Ltd is now available here. The claimant’s appeal on the issue of proportionality was allowed. The figure of £35,000 plus vat for costs…
COSTS BUDGETING AND PROPORTIONALITY TEST APPLY – EVEN IN A CASE FOR £350 MILLION
in Sharp & Ors v Blank & Ors [2017] EWHC 141 (Ch) Mr Justice Nugee considered the issue of proportionality in a case where £350 million was at stake. Mr Justice Nugee decided that the requirement for costs budgeting, and proportionality,…
BNM -v- MGN: A DECISION OF LIMITED PROPORTION
The Court of Appeal decision in BNM v MGN Ltd [2017] EWCA Civ 1767 has relatively limited impact. In particular it says little, if anything, about the proportionality itself. THE CASE The Court of Appeal were deciding an appeal following an…
SOLICITOR AND OWN CLIENT ASSESSMENTS: PROPORTIONALITY CONSIDERED
In October last year I wrote how a speaker at the Association of Cost Lawyers Conference predicted a rise in the number of solicitor and own-client assessments. It has to be said that there have been some interesting cases in…
PROPORTIONALITY – A LITIGATOR’S SURVIVAL GUIDE V – A ROUND UP: 12 KEY POINTS TO TAKE YOU INTO OCTOBER (AND BEYOND)
The issue of “proportionality” is central to contemporary litigation. However it is rarely examined in detail and rarely discussed. Attempts to analyse how proportionality can be achieved are even rarer. For the fifth in this (slow burning) series I review…
INCURRED COSTS, PROPORTIONALITY AND BUDGETING MEANS A CASE SHOULD NOT BE STRUCK OUT
The previous post looked at the issue of incurred costs and budgeting. Some interesting points were raised in the very complex case of King Felix Sunday Bebor Berebon & others -v- The Shell Petroleum Development Company of Nigeria Limited [2017]…
DON’T STOP ME NOW*: CLIFF’S COSTS BUDGETING: INCURRED COSTS; THE CAP ON THE COSTS OF BUDGETING AND PREPARATION FOR TRIAL
In Sir Cliff Richard OBE -v- The BBC & Chief Constable of South Yorkshire Police [2017] EWHC 1666(Ch) Chief Master Marsh declined an invitation to make any observations about incurred costs. The case: Has an interesting (and important) discussion of…
TOO MANY DOCUMENTS SPOIL THE CASE: APPLICATIONS SHOULD BE CONDUCTED PROPORTIONALLY
In Alsaifi -v- Amunwa [2017] EWHC 1443 QB Mr Justice Warby reminded parties of the need for bundles and documents to be relevant and proportional. “I make these points to emphasise the importance of parties to litigation of this kind…
EXTRAORDINARY AMOUNT OF COSTS CAUSES JUDGE GREAT CONCERN: RBS COSTS ESTIMATES GREATLY EXCEEDED – NOW £129 MILLION
The RBS Rights Issue Litigation is clearly a major and unusual case. However costs have to be reasonable and proportionate even (and perhaps especially) in this type of litigation. This is made clear in the judgment of Mr Justice Hildyard…
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…
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…
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