COST BITES 448: PART 36 AND FIXED COSTS: “VERY LATE” ACCEPTANCE OF A DEFENDANT’S OFFER LEADS TO THE CLAIMANT RECOVERING NO COSTS AT ALL
It was probably inevitable that there would be difficulties in the construction of fixed costs and the interplay with Part 36. We have such a case here. The Court had to consider the implications of the precise wording of fixed…
COST BITES 447: “THESE SUMS ARE ASTONISHING”: COURT OF APPEAL CONSIDERS £2 MILLION BRIEF FEE AND COSTS OF A FOUR-DAY APPEAL (AND IS NOT TOO IMPRESSED)
It is rare for the Court of Appeal to get involved in the minutiae of costs. We have an example here and the Court is, to say the least, forthright in its views. Leading Counsel’s brief fee of £2 million…
CONDITIONAL FEE AGREEMENTS, CHANGE OF SOLICITORS AND RATIFICATION AND INFORMED ADVICE: IT IS NOT SO EASY TO SIMPLY RECOMMEND A CHANGE OF SOLICITORS…
It is not unknown for a client to wish to change solicitors part way through a case. Where the matter is being conducted on a conditional fee agreement this can lead to complex problems. We see this here. The key…
COST BITES 466: COURT OF APPEAL UPHOLDS ABILITY TO AWARD INTEREST ON COSTS TO LITIGANTS CONDUCTING LITIGATION ON A CFA
Here we have a case where the Court of Appeal upheld a decision to award pre-judgment interest on costs. Interest can be awarded even though the action is being conducted on a Conditional Fee Agreement. This is an important point…
BACK TO BASICS MONDAY: THE WISDOM OF MAKING A PROMPT AND REALISTIC PART 36 OFFER IN AN ASSESSMENT ON COSTS: 10 KEY POINTS WITH USEFUL LINKS
A few recent posts have been a (wholly subtle) attempt to promote the forthcoming webinar and book “The Paying Party’s Manual”. This is part of that well-disguised approach. We are looking at the wisdom in making an early and realistic…
COST BITES 465 : WITHOUT PREJUDICE COSTS BREAKDOWNS REMAINED PRIVILEGED: A LOWER BILL DID NOT ESTABLISH “UNAMBIGUOUS IMPROPRIETY”
This judgment given today highlights some dangers in sending “without prejudice” bills of costs at an early stage. The paying party can (understandably) be suspicious when a later bill comes at a lower figure. The reasons for this need not…
COST BITES 464 : THE IMPORTANCE OF MAKING A PROPER APPLICATION TO VARY A COSTS CAP: TICKING A BOX IS NOT ENOUGH: THE COURT APPLIES THE £5,000 AARHUS LIMIT: SOMETHING TO CHEW THE CUD OVER
It is not often we get to consider the issue of costs and cattle. Here the issue is considered in relation to costs limits imposed by the Aarhus Cap and delay by the defendants in challenging the application of the…
COST BITES 463: HOW SHOULD A COSTS ORDER BE PHRASED? MAKING SURE THAT IT DOES NOT JUST OVER “COUNSEL STANDING ON THEIR FEET DURING THE APPLICATION”
Here we have an unusual disagreement about how an order for costs should be phrased. The judge made it clear that the order should make it clear that it was not just covering advocacy. “I prefer the Bourlakovas’ formulation. It…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT… INTERIM ORDERS FOR COSTS: 10 KEY POINTS AND USEFUL LINKS
We have looked at the issue of interim costs twice over the past few days. It is an important element of litigation. An order for costs does not put money in the receiving party’s bank account. Detailed assessment may take…
COST BITES 462: A “TOP-HEAVY” LEGAL TEAM AND £929,000 CLAIMED IN COSTS: COURT ORDERS A PAYMENT ON ACCOUNT OF LESS THAN 50%: THE “RULE OF THUMB” OF 60% IS NO ALWAYS APPROPRIATE
We are returning to the case we looked at yesterday. Having determined that it was appropriate for the court to order the applicants to pay the respondents’ costs of the application the judge then considered the question of the amount…
COST BITES 461: “LOSING PARTY” SHOULD PAY COSTS AT THE END OF HEARING, DESPITE HAVING BEEN GRANTED PERMISSION TO APPEAL
This case emphasises the importance of the “pay as you go” principle in civil litigation. The applicants had failed at an interlocutory application. They were equally unsuccessful in their attempts to persuade the judge that they should not pay the…
COSTS BITES 461: WINNING THE CASE BUT LOSING THE MAIN BATTLE MEANS CLAIMANT RECOVERS 85% OF COSTS: DEFENDANT CANNOT SEEK THE ADVANTAGES OF PART 36 WITHOUT MAKING A PART 36 OFFER
It is wise for a party that is likely to be on the losing side of a case to make a Part 36 offer. A court is unlikely to have much sympathy for a litigant that has failed to protect…
COST BITES 460: THE FACT THAT A DEFENDANT LOST ON A COUNTERCLAIM DID NOT PREVENT THE COURT FROM ORDERING THE CLAIMANT TO PAY 70% OF THEIR COSTS: ORDER UPHELD ON APPEAL TO THE HIGH COURT
There are certain cases that litigators should keep in their cabinets to show to clients who are overkeen to litigate. This is one of them. The parties were arguing over a boundary line, with one of the issues being whether…
THE DISCLOSURE OF PART 36 OFFERS: IS THE DATE OF AN OFFER PART OF ITS “TERMS”? A QUESTION THAT HAS SOME PRACTICAL CONSEQUENCES: THE HIGH COURT CONSIDERS THE ISSUE
The rules allow the parties to disclose the existence of a Part 36 offer after a split trial. However the judge cannot be told the “terms” of the offer. Here the court considered the interesting (and important) issue of whether…
COST BITES 458 : SHOULD A COURT ORDER A THIRD PARTY TO PAY THE COSTS? CAN (OR SHOULD) AN ORDER BE MADE FOR PAYMENT BY BITCOIN? THE COURT OF APPEAL HAS ITS DOUBTS…
Here we look at specific issues as to the payment of costs arising from cryptocurrency, Bitcoin in particular. Firstly the costs order made had the effect of ordering a party (who had not been ordered to pay costs) to, in…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT … HOUSING LAW, COSTS AND PROCEDURE: 10 KEY POINTS AND USEFUL LINKS
There are much more specialist blogs available for housing lawyers and I’m glad to say that “Nearly Legal” is recommencing next month. The posts on this site concentrate on procedure and costs and the Ten Key Points here reflect that. …
COST BITES 457: COURT REFUSES APPLICATION TO MAKE LEGAL INSURERS SOLELY RESPONSIBLE FOR THE COSTS OF ASSESSMENT: (WHY COSTS LAWYERS HAVE TO KNOW THE LAW OF EVIDENCE – PARTICULARLY IF THEY ARE GOING TO MAKE ALLEGATIONS RELATING TO CONDUCT)
Here we look at a highly unusual allegation. Two of the claimants (the paying parties) and the defendants sought an order making their ATE insurer solely responsible for the costs of the assessment process. This application was supported by “evidence”…
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 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 BITES 455: COURT OF APPEAL DECISION TODAY ON WHETHER A CLIENT IS ENTITLED TO RAISE PART 18 QUESTIONS AS TO WHETHER THE SOLICITOR OBTAINED COMMISSION ON AN ATE PREMIUM
In this judgment today the Court of Appeal held that it is not appropriate for a former client to raise Part 18 questions as to whether their former solicitors had received a commission on an ATE policy. This is important…
COST BITES 454 : INTEREST ON COSTS: A SERIES OF CHECKLISTS AND USEFUL LINKS FOR THE PAYING PARTY
Last week we looked at a recent judgment which concerned interest on costs. That post also contained a series of checklists relating to interest on costs for the receiving party. I promised corresponding checklists for the paying party. There are…
COST BITES 453: YOU ARE NOT GETTING A SUMMARY ASSESSMENT JUST BECAUSE YOU ALL WANT ONE: THE BROADBRUSH IS TOO BLUNT A TOOL FOR THIS PROCESS
We are returning to the previous case to look at the judgment in relation to the judge’s comments on the method of assessment. All the parties favoured a summary assessment, the Senior Costs Judge found that this was not appropriate….
COST BITES 452: WHAT COSTS ORDER SHOULD THE COURT MAKE FOLLOWING THE DECISION IN THE MEDICAL REPORTING CASE? “WE ALL WON – SAY THE PARTIES” AND “WE’RE ALL APPEALING ANYWAY…”
We have the latest chapter in the ongoing saga of whether a receiving party needs to provide a breakdown of the costs of a medical report. Fittingly (and unsurprisingly) this judgment is about costs. It is an unusual case in…
COST BITES 451 : INTEREST ON COSTS A RECENT JUDGMENT, A REVIEW OF POSTS AND USEFUL CHECKLISTS FOR THE RECEIVING PARTY
Here we look at a recent decision on interest on costs. It also provides an opportunity to review previous posts on the topic and use them to look at a checklist on these issues for the receiving party. “I was…
COST BITES 450: IF THE CLAIMANT SUCCEEDED ON A CASE THAT WAS NOT PLEADED SHOULD IT THEN PAY THE DEFENDANTS’ COSTS?
Here the “Cost Bites” series interacts with the “Present Importance of Pleadings”. The judge considered issues relating to liability to pay costs when the claimant had succeeded, but on a basis that was not pleaded. In these circumstances should the…
COST BITES 449 : YOUR CASE AGAINST ME WAS DISMISSED BECAUSE YOU HAD NO PROPER CAUSE OF ACTION: SHOULD I GET 100% OF MY COSTS ON THE INDEMNITY BASIS? (LIFE IS MORE NUANCED THAN THIS…)
Here we look at a case where a defendant was successful in having an action against him struck out because there was no viable cause of action. The questions addressed here were – should the claimant recover 100% of his…
COST BITES 448: THE FINANCIAL CONDUCT AUTHORITY HAS TO PAY THE FULL COSTS OF LOSING AN ACTION: ARGUMENTS ABOUT “CHILLING EFFECT” WERE NOT ESTABLISHED AND NOT EVIDENCED IN ANY EVENT
Here we look at some unusual arguments from an unsuccessful defendant as to why it should not be liable to pay the claimants’ costs in full. In the end the defendant succeeded in reducing the costs of a single claimant…
COST BITES 447 : SHOULD A DEFENDANT’S DERAILMENT OF AN EARLY NEUTRAL EVALUATION LEAD TO INDEMNITY COSTS ORDERS BEING MADE AGAINST IT?
Here we have an interesting judgment on the interaction between costs, pleadings and the court’s encouragement of an ADR Process. The claimant argued that a defendant’s conduct lead to the adjournment, and eventual abandonment of an Early Neutral Evaluation (“ENE”)….
COST BITES 446 : SHOULD THE COURT HAVE MADE A NON-PARTY COSTS ORDER? SHOULD THE APPELLANT HAVE BEEN CROSS-EXAMINED AND WAS THE COURT BOUND TO ACCEPT HIS EVIDENCE?
This is a case about non-party costs orders that has some unusual elements. Firstly an argument that since the appellant was not cross-examined the court was bound to accept his assertions that he had no direct financial interest in the…
COST BITES 445: “AN APPALLING WASTE OF RESOURCES FOR WHICH BOTH PARTIES AND THEIR REPRESENTATIVES BEAR RESPONSIBILITY”: THE FAMILY COURT IS NOT BEST PLEASED…
Here we take a look at a judgment in a family case which contains an exhortation about running up unnecessary costs. This is normally a regime in which inter partes costs are not awarded. The conduct in this case led…
COST BITES 443: USEFUL CHECKLISTS: A CHECKLIST ON COSTS IN HOUSING DISREPAIR CASES (FOR CLAIMANTS)
The review on the book on Costs in Housing Disrepair cases last week led me to consider a series of checklists on costs. I am starting with costs for claimant housing lawyers. However this site is even handed, the next…
BOOK REVIEW: “A PRACTICAL GUIDE TO COSTS IN HOUSING DISREPAIR CASES”: MAY HELP FIX GAPS IN ROOFS AND CERTAINLY FILLS A GAP IN THE MARKET…
Costs in housing disrepair costs have become somewhat of a battleground. This battle starts at the allocation stage and re-commences on assessment. This has become more acute because housing disrepair cases are not subject to the fixed costs regime. This…
THROWBACK FRIDAY: “THE RISK OF INDEMNITY COSTS: WHAT ARE YOU GOING TO TELL YOUR CLIENT?” (AUGUST 2014)
We have had four posts this month along about costs being awarded on the indemnity basis. Indemnity costs have been awarded against claimants, (in a very high profile case), against defendants, and against a solicitor personally. The consequences of an…
EXPERT WATCH 67: LITIGANTS NOT ALLOWED TO RECOVER THE COSTS OF AN EXPERT WHOSE EVIDENCE ON SOME ISSUES WAS “LARGELY UNHELPFUL”
It is rare to be able to see a costs decision on the recoverability of the costs of expert evidence. We have such a case here where the Competition Appeal Tribunal considered whether to allow a successful party to recover…
COST BITES 442: AN IMPORTANT POINT TO WATCH WHEN SEEKING TO RECOVER COSTS ON A COUNTERCLAIM
Here we look at an important point in relation to the costs of a counterclaim. If a party is awarded the costs of the counterclaim those costs may be very narrowly confined. In this case the defendant attempted to recover…
COST BITES 441: NO ORDER FOR COSTS – EVEN THOUGH THE APPLICANT WAS SUCCESSFUL: THERE ARE MANY LESSONS TO LEARN HERE…
Last week this blog had a fairly detailed review of those circumstances which often lead to no order for costs being made. We have another example here. The applicant had succeeded in the application it had made, however the judge…
COST BITES 438 : CLAIMANT’S UNTENABLE ARGUMENTS LEADS TO REDUCTION IN COSTS RECOVERED: HOURLY RATES FAR TOO HIGH, EVEN WHEN THE CLAIM WAS “ONLY” FOR £9 MILLION
This decision as to costs gives rise to two interesting issues. Firstly the claimant’s costs of an injunction application were reduced substantially because assertions were put forward on a basis that were “unsustainable” and which should never have been pursued,…
WHEN A COURT MAY MAKE NO ORDER FOR COSTS: THE FACTORS CONSIDERED: 12 KEY POINTS AND A USEFUL CHECKLIST FOR PRACTITIONERS
Some posts earlier this week concentrated on a case where the judge made no order for costs. This is an unusual outcome, but still one that has to be considered and the client warned about. Here we take a…
COST BITES 437: SHOULD THE DEFENDANT’S CONDUCT OF THE ACTION LEAD TO INDEMNITY COSTS BEING AWARDED? YES IT SHOULD…
In this case the judge decided that the defendant’s conduct of the litigation warranted an award of indemnity costs being made. There is an interesting consideration of the case law relating to when costs will be reduced because of lack…
INTEREST ON DAMAGES: (1) GENERALLY; (2) AFTER THE DEFENDANT FAILS TO BEAT A PART 36 OFFER: THERE IS NO NEED TO FIND DISHONESTY OR SERIOUS CONDUCT TO AWARD ENHANCED INTEREST
There are two issues of interest in this case. Firstly the judge’s decision on the appropriate rate for interest on damages generally. Secondly the judge’s observations that there is no need for the court to find misconduct to award enhanced…
BACK TO BASICS MONDAY: LITIGATORS HAVE TO WARN THEIR CLIENTS THAT SOMETIMES A COURT MAKES NO ORDER FOR COSTS AT ALL: THE PERILS IF YOU DON’T
This post obviously follows on from the post earlier today where the judge made no award for costs after a trial. Neither side had “won” and, in any event, the amount spent in pursuit of the claim was disproportional. This…
COST BITES 434 : JUDGE REFUSES TO INCREASE CLAIMANT’S BUDGET AFTER TRIAL, EVEN THOUGH IT WAS NOT OPPOSED BY THE DEFENDANT: A PARTY MADE NO ATTEMPT TO EXPLAIN WHY IT NEEDED TO SPEND THE PRICE OF THE AVERAGE UK HOUSE ON ADDITIONAL DISCLOSURE
We are looking at another attempt to vary a costs budget. In this case the attempt was made after the trial and after judgment. Both parties, initially, sought large variations. Only the claimant proceeded with the application in relation to…
AN ORDER FOR WASTED COSTS NARROWLY AVERTED – BUT THERE WERE ISSUES ON BOTH SIDES: “NONE OF THE LEGAL PROFESSIONALS IN THIS CASE HAVE COVERED THEMSELVES WITH GLORY”
This is a case where the judge found the conduct of a firm of solicitors “utterly extraordinary”. However there were, in fact, a number of errors by both sides. This may (and probably would) have led to a wasted costs…
COST BITES 433: WHAT ARE “SIGNIFICANT DEVELOPMENTS” WHEN YOU WANT TO VARY A COSTS BUDGET? WHY THERE WERE NO SUCH DEVELOPMENTS HERE
We are continuing our consideration at the appeal case where the defendant’s appeal against a decision to vary the claimant’s budget. The first reason the appeal was successful was because the first instance judge found that there were no “significant…
COST BITES 432: THE COURT CANNOT ALTER THE COSTS BUDGET UNLESS THERE ARE “SIGNIFICANT DEVELOPMENTS” : HIGH COURT DECISION
This case reiterates the essential point that the court has no freestanding discretion to vary a costs budget. An essential prerequisite of variation is that there must be a “significant development” that warrants a variation. There was no such development…
COST BITES 431: A CASE WHERE BOTH SIDES NEEDED RELIEF FROM SANCTIONS SO THAT THEY COULD ARGUE ISSUES OF COSTS: THE PROBLEMS FLOCK TOGETHER…
Here we look at a case where both parties required an extension of time in order to raise very significant arguments in relation to costs. The claimant had been late in filing essential documents for his own costs protection, the…
COST BITES 430 : THE ARMED FORCES HEARING LOSS LITIGATION? WHO WON AND WHO SHOULD PAY THE COSTS?
The issue of “who won” in litigation is usually a relatively easy one. Here we have a judgment in a complex series of test cases where the parties disagreed who had been successful. There was a major difference in views….
COST BITES 429: A REMINDER THAT A CLAIMANT IS STILL LIABLE TO PAY COSTS EVEN IF PROCEEDINGS ARE NEVER SERVED: SOMETHING ABOUT PRE-ACTION CONDUCT TOO…
This judgment illustrates two important things. Firstly that a claimant’s liability to pay costs starts upon issue and remains even if proceedings are never served. Secondly that pre-action conduct can have an impact on the decision that a judge makes…
COST BITES 428 : IF THERE IS NO CHARGING CLAUSE IN THE WILL CAN THE SOLICITOR GET PAID?
Here we look (not for the first time) at a case where there was no charging clause in a will and a solicitor executor charged for their services. The solicitor attempted to rely on the circumstances in which the will…
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