AN UNSUCCESSFUL APPEAL ON A COSTS BUDGETING DECISION: SHOULD A QC BE ALLOWED – OR IS THAT A LEADING QUESTION?
The case of Easteye Ltd v Malhotra Property Investments Ltd & Ors [2019] EWHC 2820 (Ch) is unusual in that it is an appeal against a costs budgeting decision. Nugee J refused the claimant’s appeal against the District Judge’s decision…
CLAIMANT BEATS ITS OWN PART 36 OFFER: DEFENDANT PAYS THE PRICE: OFFER BEATEN BY £4,800 LEADS TO DEFENDANT PAYING AN ADDITIONAL £65,000 – & INDEMNITY COSTS, & ADDITIONAL INTEREST…
In Hochtief (UK) Construction Ltd & Anor v Atkins Ltd [2019] EWHC 3028 (TCC) Mrs Justice O’Farrell considered the consequences of a claimant being its own Part 36 offer. The claimant beat its own offer by a small amount but…
QUICK REMINDER OF NEW COSTS BUDGETING RULES COMING INTO FORCE TODAY: INCURRED COSTS INCLUDE THE COSTS OF THE CCMC
Part of the 109th update to the Civil Procedure Rules came into force today. A quick reminder that, from today, there is a change in the way that the courts approach the costs of the CCMC itself. INCURRED COSTS…
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…
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…
CIVIL PROCEDURE BACK TO BASICS 50: THE POSTS SO FAR
The “back to basics” series has been going since April 2018. It has covered a surprising amount of topics. From how to draft an application to “litigation wishful thinking”. Some people have expressed surprise and how “basic” some points are…
RULE CHANGES (109): ELECTRONIC FILING, INCURRED COSTS AND THE CCMC, SMALL CLAIM HEARINGS IN PRIVATE
We are now on the 109th update to the Civil Procedure Rules. The three points I want to look at in particular are: mandatory electronic filing in the QBD; the costs of the CCMC being clearly categorised as incurred costs;…
A CAVALCADE OF COSTS CASES: HOLIDAY READING: SOMETHING TO CHEER UP COST LAWYERS OVER THE BANK HOLIDAY WEEKEND…
A number of costs cases have arrived on BAILLI all are decisions of Master Rowley relating to costs. EXCLUDING INTEREST ON COSTS MEANS THAT THIS IS NOT A PART 36 OFFER Ngassa v The Home Office & Anor [2018] EWHC…
NEW PRECEDENT R: STARTED TODAY (CONTAIN YOUR EXCITEMENT): USEFUL LINKS AND GUIDANCE
Credit to Costs Lawyer Jessica Swannell for reminding people on Linked In that the new Precedent R must be used from today. It is a good time to provide a link to the new form and some useful posts and…
DEPARTING FROM THE BUDGET: IMPORTANT DECISION ON APPEAL: JUDGMENT NOW AVAILABLE
Both Professor Dominic Regan and Acumension have kindly sent me copies of the decision in Barts Health NHS Trust -v-Salmon an appeal in relation to costs budgeting (HHJ Dight CBE, with Master Brown as an assessor, 17th January 2019). A copy…
“THE CLAIMANTS MUST RUE THE DAY THEY REJECTED THE DEFENDANT’S OFFER”: CLAIMANT TO PAY STANDARD COSTS AFTER REJECTING VERY EARLY PART 36 OFFER
The costs judgment in Burgess & Anor v Lejonvarn [2019] EWHC 369 (TCC) is probably a judgment that should be shown to all litigants. The claimant rejected an offer of £25,000 and failed to beat that offer at trial. The defendant’s…
UNANTICIPATED SIZE OF DISCLOSURE WAS AN “UNANTICIPATED DEVELOPMENT”: UPWARD REVISION OF COST BUDGET ALLOWED
In Al-Najar & Ors v The Cumberland Hotel (London) Ltd [2018] EWHC 3532 (QB) Master Davison allowed an upward variation of the cost budget. The scale of disclosure given by the defendant could not have been anticipated and it was reasonable…
BACK TO BASICS 19: COSTS BUDGETING WHEN CASE IS MORE THAN £25,000 BUT LESS THAN £50,000
There are special rules governing budgets in cases where the claimant claims more than £25,000 but less than £50,000. Firstly the budget has to be filed much earlier. Secondly the budget “must” only be the first page of Precedent H….
“THIS IS AN ARCHETYPAL CASE WHERE IT WOULD NOT BE APPROPRIATE TO GRANT RELIEF FROM SANCTIONS”: ANOTHER LATE COSTS BUDGET CASE
The judgment OF Mr Justice Bryan in BMCE Bank International Plc v Phoenix Commodities PVT Ltd & Anor [2018] EWHC 3380 (Comm) provides, as the judge noted, an archetypal example of the way not to go about cost budgeting, coupled with…
BACK TO BASICS 17: WHEN SHOULD A COST BUDGET BE FILED: WHERE THINGS GO WRONG
This may appear very basic. However I have seen both sides falling foul of this very recently. In particular the fact that the budget has to be filed with the directions questionnaire when the claim is limited to £50,000. THE…
COST BUDGETING: THE PARTIES MUST KNOW WHERE THEY STAND: LEAVING HOURLY RATES “OPEN” IS INAPPROPRIATE
I am grateful Sam Hayman from Bolt Burdon Kemp to for sending me a copy of the decision of Mr Justice Jacobs in Yirenki -v- Ministry of Defence [2018] EWHC 3102 (QB). The judge allowed an appeal against a cost budgeting…
SENIOR COURTS COSTS OFFICE GUIDE 2018
The new Senior Court Costs Office Guide has been published. This replaces the 2013 version with immediate effect. It is available on the link in the page here. The new guide Deals with all changes since 2013. Deals with the electronic…
SANCTIONS AND COSTS BUDGETS: A “PARTIAL” BUDGET DOES NOT COMPLY WITH THE RULES BUT A “PARTIAL” SUCCESS FOR THE CLAIMANT ON APPEAL
In the judgment today in Page v RGC Restaurants Ltd [2018] EWHC 2688 (QB) Mr Justice Walker allowed an appeal in relation to the sanctions imposed when a claimant failed to file an costs budget that complied with the rules. The…
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…
BACK TO BASICS 16: COSTS BUDGETING: THE GUIDANCE NOTES ON PRECEDENT H
There is much written about the process of costs budgeting. There is much to be said, when preparing for a hearing – and often at the hearing itself, looking at the Practice Direction and Guidance Notes. THE PRACTICE DIRECTION The…
THE ELECTRONIC BILL OF COSTS: UPDATE TO LINKS, INCLUDING GUIDANCE ON THE ENTIRE PROCESS
There has been much recent comment on the “success” (or otherwise) of the electronic bill of costs. This is a guide time to update the links to commentary and guidance on the process. RECENT COMMENTARY The New Law Journal…
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…
SOLICITOR AND CLIENT COSTS: A PRACTICAL GUIDE – BOOK REVIEW: BUY IT AND READ IT: £30 WORTH SPENDING
Disputes about costs between lawyers and their (former) clients can be “challenging”. Indeed they can be vitriolic and expensive. The lawyer thinking “We’ve done the work” – the client thinking “how much” and “I got nothing out of it, why…
REDUCTION IN VALUE OF CLAIM AND REDUCTION IN HOURLY RATES DID NOT REPRESENT A GOOD REASON TO DEPART FROM THE BUDGET
In Jallow v Ministry of Defence [2018] EWHC B7 (Costs) Master Rowley rejected an argument that the settlement of a claim for a sum less than that claimed and a reduction in hourly rates for incurred costs represented “good reasons”…
THE CLEVELAND BRIDGE CASE: A SECOND CROSSING: PAYMENTS ON ACCOUNT OF COSTS
Judgments dealing with payments on account of costs are rare, but illuminating. Particularly when the costs budget is taken as the starting point. There is a detailed consideration of this issue in Cleveland Bridge UK Ltd v Sarens (UK) Ltd [2018]…
HOURLY RATES, INCURRED COSTS AND THE COST BUDGET: AGREED BUDGETS HAVE NO SPECIAL STATUS: HOURLY RATES NOT A GOOD REASON TO DEPART FROM THE BUDGET
The judgment of Master Nagalingam in Nash v Ministry of Defence [2018] EWHC B4 (Costs) covers several issues relating to costs budgets. The Master found that a reduction in hourly rates in relation to incurred costs did not lead to any…
THE HOURLY RATE FOR INCURRED COSTS: WHY IT IS IMPORTANT THAT THESE ARE SET OUT CORRECTLY: HIGHER HOURLY RATES THAN THE RETAINER SHOULD START THE ALARM
I am grateful to Benjamin Petrecz, Associate and Costs Lawyer at Keoghs LLP, for bringing my attention to a decision of Master Rowley in Tucker -v- Griffiths & Hampshire Hospitals NHS Foundation Trust (19/05/17) in relation to costs budgeting. A…
THE COSTS OF MEDIATION AND THE COSTS BUDGET: AVOIDING A POSSIBLE TRAP
I am grateful to Alan Mendham for writing to point out a possible trap in relation to costs budgeting and mediation. Alan points out that disputes can arise as to whether mediation is included in the phase for settlement…
PUTTING THE “COSTS OF BUDGETING” IN THE BUDGET: A DEBATE
Yesterday I wrote about the issues posed by the fact that the costs of budgeting (the 1% and 2% allowed for Form H and budgeting) now cannot be assessed at the budget stage. I suggested the budgeting order should read…
THE COSTS OF COSTS BUDGETING CANNOT BE ASSESSED UNTIL THE END OF THE CASE – A QUICK REMINDER: THE PRACTICAL CONSEQUENCES
The early part of the year may be a good time to remind people that it is now not possible to put the 1% and 2% figures in the costs budget at the end of the budgeting process. CHANGE IN…
REVISING COSTS BUDGETS: “SIGNIFICANT DEVELOPMENTS”, INCURRED COSTS AND APPLICATIONS MADE DURING THE COURSE OF A TRIAL
In Sharp v Blank & Ors [2017] EWHC 3390 (Ch) Chief Master Marsh considered an application by the defendant to revise its costs budget. The judgment contains important observations about the practicalities involved in costs budgeting. There is also a detailed…
TWO ISSUES RELATING TO COSTS: STAGE 3 ISSUE FEES; COSTS BUDGETING IN FATAL CASES WHERE THERE IS A CHILD DEPENDENT
I had an interesting email this morning from Jon Heath, solicitor at Levins, Liverpool. It deals with two distinct issue: Stage 3 issue fees. Costs budgeting in a fatal case where there is a child involved. STAGE 3 ISSUE FEES….
CIVIL LITIGATION REVIEW OF 2017 (IV): COSTS, BUDGETS, PROCEDURAL GAMES AND MISCONDUCT ON ASSESSMENT
This year has been a surprisingly muted year for costs cases, particularly in the higher courts. Several judgments were expected, however they rarely proved to be definitive or wide ranging. 2018 may be the year that some issues are resolved….
CHANGES TO THE RULES IN RELATION TO THE COSTS OF COSTS MANAGEMENT: COMPARE AND CONTRAST
There has been a change to the rules governing the costs of costs management. This was introduced by the 93rd Update on Practice Direction Amendments. The Ministry of Justice have confirmed that these have come into force. * THE NEW RULE:…
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,…
PRACTISING “DEFENSIVE LITIGATION” : ESSENTIAL CHECKLISTS GATHERED TOGETHER
What many (if not most) of the posts on this blog make clear is that there is now precious little room for error in civil procedure. To operate effectively, and profitably, we have to develop systems of “defensive litigation”. That…
COST BUDGET SERVED TWO MONTHS LATE: RELIEF FROM SANCTIONS ALLOWED: DELAY DOES NOT ALWAYS GIVE RISE TO A SIGNIFICANT BREACH
I am grateful to my colleague Colin Richmond for sending me a copy of the decision of His Honour Judge Gosnell In Hewitt -v- Smith (Bradford County Court 16th June 2017) relating to a successful appeal from a refusal to…
THE BANK OF IRELAND CASE ROUND TWO: APPROPRIATE SUMS FOR AN INTERIM PAYMENT ON ACCOUNT OF COSTS: INDEMNITY COSTS ORDERED BECAUSE OF CONDUCT OF EXPERT
In an earlier post we looked at the judgment in Bank of Ireland -v- Watts Group PLC [2017]EWHC 1667 (TCC) where Mr Justice Coulson was particularly excoriating about the claimant’s expert. Having lost the case the bank had to pay the…
COST BUDGETING: THE CASES AND POSTS IN ONE PLACE
There is a specific section on relief from sanctions on this blog which links to all the posts and related cases on CPR 3.9. Here I am starting to do the same for costs budgeting. Here, however, I aim to…
BUDGETS, ASSUMPTIONS AND AGREEMENT: GUIDANCE FROM THE BENCH: PRECEDENT R WILL HELP YOU OUT IF YOU EVER WANT TO DEPART FROM THE BUDGET
I have already paid homage to the Solicitors Journal. The articles in the last edition show how much it contributed . Given the inability of the SJ to draw attention to itself I draw everyone’s attention to the article by…
IS THE BUDGET DEFINITIVE ON ASSESSMENT? CASE IDENTIFIED: TWO TRAINS OF THOUGHT CONTINUE
The position of the status of the budget and hourly rates is in flux. Michael Fletcher earlier posted an article reporting an assessment he took part in where District Judge Lumb (sitting as the Regional Costs Judge in Birmingham) expressly disagreed…
IS THE BUDGET DEFINITIVE ON ASSESSMENT? MORE CATS, MORE PIGEONS: THERE ARE NOW TWO TRAINS OF THOUGHT ON THE HOURLY RATE
Earlier this month I blogged on the decision in RNB v London Borough of Newham [2017] EWHC B15 (Costs). Deputy Master Campbell decided that the hourly rate could be challenged at the assessment stage even if the total of a particular…
ANOTHER LATE COSTS BUDGET: RELIEF FROM SANCTIONS GRANTED TO ERRANT DEFENDANTS WHO SERVED BUDGET 10 DAYS LATE
In Mott & Anor v Long & Anor [2017] EWHC 2130 (TCC) His Honour Judge Grant (sitting as a judge of the High Court) considered a relief from sanctions application in relation to defendants who had served a costs budget ten…
COSTS BUDGETING: IMPORTANCE GUIDANCE FROM MASTER MCCLOUD: HOW SHOULD THE COSTS OF BUDGETING BE DEALT WITH IN FORM H AND THE FINAL BILL?
Important guidance was given this morning by Master McCloud (sitting as Deputy Costs Judge) in Woodburn v Thomas (Costs budgeting) [2017] EWHC B16 (Costs).It relates to how the costs of budgeting should be dealt with in Precedent H and any in…
COSTS BUDGETS:HOURLY RATES IN THE BUDGET ARE NOT DETERMINATIVE OF THE HOURLY RATES ON ASSESSMENT: A CAT AMONG THE PIGEONS HERE
In RNB v London Borough of Newham [2017] EWHC B15 (Costs) Deputy Master Campbell made an important decision in relation to hourly rates on assessment. The rates set out in the cost budget are not determinative of the rates allowed on…
COSTS BUDGETING IN BIG CASES: COSTS BUDGETS DO NOT PREVENT REASONABLE AND PROPORTIONATE COSTS BEING RECOVERED
The short judgment of Mr Justice Birss in Napp Pharmaceutical Holdings Ltd v Dr Reddy’s Laboratories (UK) Ltd & Ors [2017] EWHC 1433 (Pat) has some important lessons for litigators. “I entirely reject the submission that cost budgeting creates a problem…
COSTS BUDGET ONE DAY LATE: RELIEF FROM SANCTIONS REFUSED: DON’T MAKE MOUNTAINS OUT OF MOLEHILLS BUT PUT THINGS RIGHT – QUICKLY
There are only two realistic options in relation to a relief from sanctions application: (i) do it properly and promptly; (ii) don’t do it all. The dangers of a hasty application are illustrated in the judgment in Lakhani -v- Mahmud…
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]…
INCURRED COSTS AND COSTS BUDGETING: TWO RECENT CASES
Two recent cases have considered the significance of incurred costs in costs budgeting. These two cases indicate: 1. Incurred costs do not form part of the budgeting process (but can be scrutinised at assessment, including on the issue of whether…
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…
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