PROVING THINGS 226: RECOVERING INTEREST ON DISBURSEMENT LOANS: THE NEED FOR EVIDENCE
I am grateful to barrister James Miller for sending me a copy of the decision of District Judge Corkhill in the case of Gill -v- Barnsley Canister Company Ltd, a copy of which is available here Gill v Barnsley Canister…
COSTS, FATAL ACCIDENTS: THE DUTY TO INFORM THE CLIENT OF “UNUSUAL COSTS” AND WHEN THE BUDGET IS BEING EXCEEDED
The judgment of Senior Costs Judge Gordon-Saker in ST v ZY [2022] EWHC B5 (Costs) highlights many problem areas in relation to fatal accident litigation and the assessment of costs. In particular it is prudent to take early steps to…
ASSESSMENTS UNDER THE SOLICITORS ACT: INTERIM BILLS, VALID BILLS AND “SPECIAL CIRCUMSTANCES”: A DECISION ON APPEAL
The decision of HHJ Gosnell (sitting as a High Court Judge) in Richard Slade And Company Plc v Erlam [2022] EWHC 325 (QB) relates to the assessment of solicitor and own client bills. However the appeal also gave rise to…
LATE WITNESS STATEMENTS AND THE ASSESSMENT OF COSTS: COSTS REDUCED EVEN WHEN THEY WERE ON THE INDEMNITY BASIS
There are two distinct issues arising from the judgment of HHJ Pelling QC (sitting as a High Court judge) in Various Airfinance Leasing Companies & Ors v Saudi Arabian Airlines Corporation [2021] EWHC 3509 (Comm). The first relates to the…
A FINAL COSTS CERTIFICATE IS ESSENTIAL FOR COSTS TO BECOME DUE: THE BILL SHOULD HAVE BEEN SIGNED OFF…
In Johnston -v- Wackett [2022] EWHC 129 (Ch) Deputy Master Brightwell considered the question of whether costs become payable when a final costs certificate is not obtained. “Even though most paying parties may in practice pay without the need…
THERE IS NO RIGHT TO AN IMMEDIATE ASSESSMENT OF COSTS AFTER A SPLIT TRIAL: HOWEVER THERE IS AN (8%) STING IN THE TAIL
The judgment of Costs Judge Leonard in ABA v University Hospitals Coventry and Warwickshire NHS Trust [2022] EWHC B4 (Costs) highlights a point of costs and practice that is easily overlooked. A successful party who is awarded costs in a…
WHAT HAPPENS AT A SUMMARY ASSESSMENT OF THE COSTS OF A TRIAL? ALSO THE COSTS AND INTEREST THAT FOLLOWS A PART 36 OFFER
We have already looked at the judgment of HHJ Pearce (sitting as a High Court Judge) in The Huntsworth Wine Company Ltd v London City Bond Ltd [2022] EWHC 98 in relation to the construction of Part 36 offers. This was…
“DIVIDING THE BILL” WHEN TWO MATTERS PROCEEDED TOGETHER; THE AMOUNT OF INFORMATION NEEDED ON COUNSEL’S FEE NOTES & HOURLY RATES: A LOT IN ONE CASE
In R v Barts Health NHS Trust [2022] EWHC B3 (Costs) Costs Judge Rowley considered a number of interesting issues relating to the problem of apportioning costs where two actions had been run alongside each other. There are interesting observations…
CAN LEADING COUNSEL RECOVER THEIR FULL BRIEF FEE WHEN A CASE SETTLES TWO WEEKS BEFORE TRIAL?
In Hankin v Barrington & Ors [2021] EWHC B1 (Costs) Deputy Master Campbell considered the question of whether leading counsel’s brief fee was payable in full (or in part) by the defendant when the brief had been delivered but the…
THE APPROVAL OF SOLICITOR AND OWN CLIENT COSTS OF A PROTECTED PARTY AFTER SETTLEMENT: CLIENT NOT LIABLE TO PAY ANY FURTHER PROFIT COSTS; SUCCESS FEE REDUCED TO 15%
In BCX v DTA [2021] EWHC B27 (Costs) Costs Judge Brown reduced, substantially, the sums payable to solicitors from their own client. The judge was considering own client costs after the defendant had paid the bulk of the costs. It…
IS A CONDITIONAL FEE AGREEMENT UNENFORCEABLE IF THE SOLICITOR BREACHES THE CODE OF CONDUCT? MUCH TO THINK ABOUT?
The judgment of Mr Justice Trower in Winros Partnership v Global Energy Horizons Corporation [2021] EWHC 3410 (Ch) gives much for lawyers to think about. Here I want to concentrate on one element of that judgment- does a failure to…
SECRETARY OF STATE DEFENDANT MUST PAY THE ADDITIONAL LIABILITY AFTER IT FAILED TO BEAT A PART 36 OFFER ON COSTS: THE “PUBLIC PURSE” HAS NO SPECIAL STATUS AS A LITIGANT
In TT, R (On the Application Of) v Secretary of State for the Home Department [2021] EWHC B21 (Costs) Deputy Master Campbell found that the Secretary of State was liable to pay an additional sum when it failed to beat…
A SUMMARY ASSESSMENT OF COSTS: HOW IT WORKS IN PRACTICE: THERE IS NO POINT ARGUING ISSUES OF PROPORTIONALITY WHEN INDEMNITY COSTS HAVE BEEN ORDERED
Whenever I report on an assessment of costs, for reasons that can only be guessed at, that post is always widely read. The judgment of HHJ Davis-White QC in Goodwin v Avison & Ors [2021] EWHC 2754 (Ch) involves…
COSTS OF ASSESSMENT CAN BE REDUCED BECAUSE BILL WAS REDUCED: NO NEED FOR MISCONDUCT OR SKULDUGGERY
In Milbrooke Construction Ltd v Jones [2021] EWHC B20 (Costs) Costs Judge Brown found that the reduction of a bill of costs by a major percentage can be grounds, in itself, for disallowing part of the receiving party’s costs of…
ASSESSING BILLS OF COSTS: GIVE DETAILS OF THE SIGNATORY AND OF THE FEE EARNERS OR YOUR BILL WILL STRUCK OUT: “AN OUNCE OF OPENNESS IS CHEAPER THAN ANY ARGUMENT”
I am grateful to solicitor Benjamin T Petrecz for drawing my decision to the judgment in Barking, Havering & Redbridge University Hospitals NHS Trust v AKC [2021] EWHC 2607 (QB) Mrs Justice Steyn (sitting with an assessor Master Brown) allowed…
ANOTHER ROUND IN A LONG-RUNNING SOLICITOR-CLIENT COSTS DISPUTE: JUDGE REFUSES APPLICATION FOR A STAY AND FOR SECURITY FOR COSTS.
In Edwards & Ors v Slater & Gordon UK Ltd [2021] EWHC B19 (Costs) Costs Judge Rowley considered several procedural issues in relation to ongoing solicitor and own-client assessments. THE CASE Some 134 cases are being brought by Clear Legal…
DIDN’T FILE A SCHEDULE: COSTS CONFINED TO COUNSEL’S FEES
In Mahandru v Nielson [2021] EWHC 2297 (QB) Mrs Justice Steyn DBE considered what costs should be awarded when a respondent had successfully defended an appeal but not filed a costs schedule. The answer, in that case, was to simply…
INCREASES IN HOURLY RATE AMOUNTS TO “SPECIAL REASONS” IN SOLICITORS ACT ASSESSMENT OF COSTS
In Raydens Ltd v Cole [2021] EWHC B14 (Costs) Costs Judge Leonard found that an increase in hourly rates meant that “special circumstances” established in a Solicitors Act assessment. “I do not believe that anyone in her position could reasonably…
YOU CANNOT PUT A CAVEAT WHEN ACCEPTING A PART 36 OFFER: CASE UNREASONABLY LEFT THE PORTAL: THE CLAIMANT “MISUNDERSTOOD THE RULES”
I am grateful to barrister James Miller for sending me a copy of the decision of Deputy Master Friston in Jimenez -v- Esure Services Limited (30th July 2021) a copy of which is available here. Jimenz -v- Esure THE CASE…
THE CIVIL JUSTICE COUNCIL FINAL REPORT ON GUIDELINE HOURLY RATES
The Civil Justice Council has produced its final report on guideline hourly rates. This follows a consultation process following the interim report in January 2021. THE REPORT The report is available here. THE RECOMMENDED RATES … Enjoying this post?…
Commencing Assessment Proceedings, Default Certificates and Drafting Points of Dispute: Where does it all go wrong? Webinar 30th June 2021
Kings Chambers is presenting a webinar on the 30th June 2021 about avoiding problems in the assessment of costs process and the effective drafting of points of dispute. Booking details are available here. THE WEBINAR In Grekor Fisken Ltd -v-…
THE ASSESSMENT OF COSTS: A “NEAR MISS” OFFER IS NOT ENOUGH
In Mullaraj v Secretary of State for the Home Department [2021] EWHC B5 (Costs) Deputy Costs Judge Campbell rejected an argument that a “different order” for costs should be made following an assessment of costs. The paying party had made…
“THE PROVISION OF THE CPR FOR SERVICE… SHOULD BE FAMILIAR TO EVERY SOLICITOR WHO CONDUCTS LITIGATION… THE MULTIPLE ERRORS MADE IN PURPORTING TO SERVE THE DEFENDANT COULD HAVE BEEN AVOIDED WITH A LITTLE DILIGENCE”
Although issues of service are a regular feature on this blog I cannot recall many cases about mis-service of Notice of Commencement of a Bill of Costs. There have been several recently. The claimant failed to serve properly in Gregor…
THE SITUATION WHERE A PARTY SERVES ITS SCHEDULE OF COSTS LATE: CLAIMANT PERMITTED TO RECOVER COSTS, BUT THIS IS A POINT TO WATCH
In Tribe v Elborne Mitchell LLP (Costs) [2021] EWHC 1252 (Ch) Deputy Master Raeburn considered the appropriate approach when a party serves a schedule of costs late. Although the claimant was allowed to recover costs I report this case primarily…
DEFENDANTS FAIL TO HAVE DEFAULT COSTS CERTIFICATE OF US$3 MILLION SET ASIDE: DRAFT POINTS OF DISPUTE NOT AVAILABLE AT THE APPLICATION
In National Bank of Kazakhstan & Anor v The Bank of New York Mellon SA/NV, London Branch & Ors [2021] EWHC B7 (Costs) Costs Judge Rowley refused an application by the defendants to set aside a default costs certificate. This…
COURT ALLOWS ASSESSMENT OF SOLICITOR’S BILLS OUTSIDE 12 MONTHS: PUBLIC SPIRITED LITIGATION DOES NOT AMOUNT TO SPECIAL CIRCUMSTANCES
I am grateful to Mark Carlisle for sending me a copy of the judgment of Master Brown in Erlam -v- Edmonds Marshall McMahon Limited (SCCO – 19th November 2020 – a copy available here Erlam v Edmonds Marshall McMahon Ltd…
ARGUING ABOUT COSTS – WHEN YOURS ARE BIGGER THAN THEIRS
In HXA & Anor v Surrey County Council [2021] EWHC 250 (QB) Deputy Master Bagot QC struck out part of the claimant’s claim for damages against the defendant local authority. This blog, however, is interested in the question of costs….
AN OBJECT LESSON OF THE NEED TO CONFIRM VARIATIONS TO A RETAINER: COUNSEL’S FEES NOT RECOVERABLE: THE SOLICITOR WAS THE AUTHOR OF HIS OWN MISFORTUNE
The judgment of Master Haworth in Murray & Anor v Richard Slade and Company Ltd [2021] EWHC B3 (Costs) could be seen as an object lesson to solicitors about confirming the terms of a retainer. The Master did not allow…
PART 36 AND THE ASSESSMENT OF COSTS: CLAIMANT ALLOWED TO RAISE THE ISSUE LATE, BUT TO NO GREAT AVAIL
In Best v Luton & Dunstable Hospital NHS Foundation Trust [2021] EWHC B2 (Costs) Costs Judge Leonard allowed a claimant to raise an argument as to Part 36 benefits following an offer in assessment proceedings. However it was held that…
SOLICITOR AND OWN CLIENT ASSESSMENT: INTERIM BILLS ARE NOT STATUTE BILLS
In Masters v Charles Fussell & Co LLP [2021] EWHC B1 (Costs) Costs Judge Rowley found that bills rendered by the defendant solicitors were not final bills and the claimant retained a right to challenge those costs. ” in order…
NO INTEREST ON COSTS OF LOAN IN A PERSONAL INJURY CASE: THERE IS A POWER BUT THE COURT DID NOT EXERCISE ITS DISCRETION
I am grateful to Paul Wainwright for sending me a copy of the judgment of District Judge Baldwin in Godfrey -v- Automotive Products Limited (17th December 2020). This decision, by the regional costs judge, considers whether a claimant in a…
COSTS LAWYERS BEWARE: COURT REFUSES TO SET ASIDE DEFAULT COSTS CERTIFICATE: “AVOIDABLE DELAY” IS NOT LOOKED AT KINDLY
In Masten v London Britannia Hotel Ltd [2020] EWHC B31 (Costs) Mr Leonard refused to set aside a default costs certificate. This serves as a salutary warning of the importance of time limits. Further the Master observed that if a…
THE CHORLEY PRINCIPLE APPLIED TO A SOLICITOR WHO DID NOT HAVE THEIR OWN “FIRM”: DEFENDANT HAD TO PAY CLAIMANT’S COSTS ON THE USUAL BASIS
A post earlier this week considered the “Chorley” principle in relation to a solicitor litigating and recovering their costs. I am grateful to my colleague Matthew Smith for sending me a copy of the judgment of Master Rowley in the…
GUIDELINE HOURLY RATES (NOT MUCH USE); CANARY WHARF (EXPENSIVE PLACE TO BE); EVIDENCE AND THE SEVEN PILLARS OF WISDOM (ALL FOR £750 AN HOUR)
I am grateful to Tom Jenkinson from Bolt Burdon Kemp for sending me a copy of the decision of Master Rowley in Shulman -v- Kolomoisky (24/06/20) where the issue of the guideline hourly rates was determined. A copy of the…
GUIDELINE HOURLY RATES CONSIDERED IN COURT OF PROTECTION: INFLATION CAN BE TAKEN INTO ACCOUNT ON ASSESSMENT
In PLK & Ors (Court of Protection : Costs) [2020] EWHC B28 (Costs) Master Whalan considered the appropriate hourly rate for Deputies in Court of Protection matters. (I am grateful to Carter Burnett, Costs Consultants, for bringing my attention to…
HEARINGS AND DETAILED ASSESSMENTS IN THE SENIOR COURTS COSTS OFFICE PRACTICE NOTE BY THE SENIOR COSTS JUDGE
Senior Costs Judge Gordon-Saker has issued a Practice Note in relation to Practice in the Senior Courts Costs Office. “Introduction 1. As a result of the hard work and determination of the court staff and the willingness to adapt…
WHEN SHOULD INTEREST ON COSTS RUN FROM? A DECISION THAT DOESN’T GO ALL AROUND THE GARDEN…
We looked at the decision of Senior Costs Judge Gordon-Saker in Marbrow v Sharpes Garden Services Ltd [2020] EWHC B26 (Costs) last week in relation to the question of whether the costs budgeting caps were inclusive or exclusive of VAT. There…
FARMER -v- THE CHIEF CONSTABLE OF LANCASHIRE: COSTS DISALLOWED IN FULL: FULL JUDGMENT NOW AVAILABLE
I wrote yesterday about the two useful articles on the case of Farmer v The Chief Constable of Lancashire [2019] EWHC B18 (Costs). The full judgment is now available on BAILLI. “Anybody around this table being of the costs persuasion…
WEBINARS ON LAW, PROCEDURE AND DAMAGES: READ ALL ABOUT THEM…
Since lockdown has made giving live presentations impossible I have been involved in presenting a number of webinars. This would seem a good time to set them out. Those that have been given earlier this year are still available on…
STRIKING OUT POINTS OF DISPUTE BECAUSE OF LACK OF PARTICULARISATION: PARTIES HAVE TO KNOW WHAT IS IN DISPUTE AND WHY
In Ainsworth v Stewarts Law LLP [2020] EWCA Civ 178 the Court of Appeal upheld a decision striking out part of points of dispute. “Common sense dictates that the points of dispute must be drafted in a way which enables…
A BAD DAY IN COURT FOR THE CLAIMANT’S SOLICITORS: COMPLICATED, OH SO COMPLICATED CFA AGREEMENTS: BREACHES OF THE INDEMNITY PRINCIPLE AND MISCONDUCT ON ASSESSMENT: AGREEMENTS “SO DARKLY PENNED AS TO BE INCOMPREHENSIBLE”
The judgment of Deputy Master Friston in Anthony v Collins [2020] EWHC B14 (Costs) makes for interesting reading. A highly complex series of conditional fee agreements were held to be in breach of the indemnity principle. There are important lessons…
2019 AND CIVIL PROCEDURE – A ROUND UP OF THE ROUND UPS: WHAT TO FRET ABOUT AND WHAT NOT TO FRET ABOUT…
There have been a series of annual reviews on key topics throughout December. To round off the year it seemed a good idea to provide a reminder of them all and put the links in one place 2019 AND CIVIL…
A CASE THAT SHOULD BE READ BY EVERY LAWYER WHO BILLS CLIENTS: CLAIM £84,000 – GET £8,000: PROVIDE ADEQUATE ESTIMATES OF COSTS OR ELSE…
The judgment of Master Leonard Dunbar v Virgo Consultancy Services Ltd [2019] EWHC B12 (Costs) provides an object lesson as to why lawyers must give a full and proper estimate of costs to their clients. The defendant solicitor sought £84,ooo…
DISTRICT JUDGE SHOULD NOT HAVE “PARTIALLY” RECUSED THEMSELVES: THINGS THAT SHOULD NEVER HAVE BEEN IN A WITNESS STATEMENT: A VERY INTERESTING ASSESSMENT OF COSTS…
I am grateful to Simon Fisher from DWF for providing me a copy of the judgment in Akers -v- Kirlkland [2019] EWHC 2176 (QB) Mr Justice Waksman discussed, in detail, the circumstances in which a judge should recuse themselves and…
SUMMARY ASSESSMENT AND HOURLY RATES: “SOLICITORS PROVIDING SUCH SKILL AND EXPERTISE ARE ENTITLED TO CHARGE THE MARKET HOURLY RATE FOR THEIR AREA OF PRACTICE”
In Ohpen Operations UK Ltd v Invesco Fund Managers Ltd [2019] EWHC 2504 (TCC) Mrs Justice O’Farrell carried out a summary assessment of costs. She also had something to say in relation to hourly rates. There is a succinct review…
ELECTRONIC WORKING IN THE SENIOR COURTS COSTS OFFICE: USEFUL LINKS
The Electronic Working Pilot Scheme in the Senior Courts Costs Office comes into force on the 7th October. There are some useful links on the working of the sceme. USEFUL LINKS A summary on the Courts and Tribunal Judiciary website …
CIVIL PROCEDURE BACK TO BASICS 60: INTERIM ORDERS ON ACCOUNT OF COSTS: “CASH FLOW IS THE LIFEBLOOD OF BUSINESS”
Here we look at the rules relating to interim orders on account of costs, a subject of considerable importance in relation to practitioner’s cash flow and client’s pockets. CPR 44.2(8) “(8) Where the court orders a party to pay costs…
WHY IT IS IMPORTANT LITIGATORS KNOW HOW TO COMPUTE TIME PROPERLY: 7 DAYS MEANS 7 DAYS: APPLICATION TWO DAYS LATE: CLAIMANT COMES TO GRIEF
In Evans v Pinsent Masons LLP [2019] EWHC 2150 (QB) Mr Justice Martin Spencer overturned a decision granting relief from sanctions. A major issue arose out of confusion by the claimant’s solicitors over the calculation of the time period. This…
“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…
WHEN YOU ARE CHALLENGING A PROVISIONAL ASSESSMENT “BE PREPARED”: MASTER FINDS THAT COURT COSTS OFFICERS DO HAVE JURISDICTION TO CONDUCT PROVISIONAL ASSESSMENTS: THE LIMITED SCOPE OF AN APPEAL FROM A PROVISIONAL ASSESSMENT
I am grateful to my colleague Robin Dunne for sending me a copy of the decision of Master Leonard in PME -v- The Scout Association (30/07/2019). 1. JUDGMENT PME (003). This deals with two issues (i) the jurisdiction of…
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