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…
COST BITES 426: COURT OF APPEAL OVERTURNS DECISION THAT A CLAIMANT IN THE SMALL CLAIMS TRACK SHOULD PAY COSTS AFTER DISCONTINUING: “THE SMALL CLAIMS TRACK IS DESIGNED TO BE DIFFERENT”
This case gives a clear message from the Court of Appeal about the critical importance of the “costs neutral” status of the Small Claims Track. The judgment makes it clear that the starting point is that costs are not recoverable…
COST BITES 424: A CLAIM FOR 30.5 HOURS IN ONE DAY: A SCHEDULE “SO UNRELIABLE IT CANNOT FORM THE BASIS FOR ASSESSMENT”
We have seen many issues in relation to schedules over the years. Here the judge considered a schedule that claimed for one person working more than 24 hours in a day. “Some of those hours are, on the face of…
COST BITES 422: THE ORDER FOR INTERIM COSTS IN THE AMY WINEHOUSE CASE : THE JUDGE WAS UNIMPRESSED WITH CLAIMANT’S “WEAK ARGUMENTS TO BOLSTER HIS ALREADY WEAK COSTS SUBMISSIONS”
We are looking at a case where the trial judge made an order for interim payment on costs following a decision that the claimant should pay the defendants’ costs on the indemnity basis. The judge also considered an issue, raised…
COST BITES 421 : THE AMY WINEHOUSE CASE IS BACK IN COURT: CLAIMANT’S AGGRESSIVE CONDUCT OF A CASE WHERE HE LOST “ON EVERY MATERIAL POINT OF FACT AND LAW” LEADS TO AN ORDER FOR INDEMNITY COSTS TO PAY COSTS ON THE INDEMNITY BASIS
We are looking at another case where the claimant’s conduct of the case has led to costs being awarded on an indemnity basis. The judgment is clear that the claimant deliberately adopted an aggressive case which had no factual merit…
COST BITES 420 : INDEMNITY COSTS AWARDED: “YOU SHOULD HAVE APPLIED TO STRIKE US OUT” OR “YOU COULD HAVE MADE A LOWER OFFER” ARE NOT AN ATTRACTIVE ARGUMENTS IN THIS CONTEXT
Here we look at some interesting arguments when claimants were attempting to avoid an award of indemnity costs. The judge was not impressed by the submission that the defendant should have applied to strike the action out. He was equally…
COST BITES 419: HOW CLAIMING COUNSEL’S FEES ON AN N260 CAN LEAD TO REFERRAL TO THE ATTORNEY GENERAL FOR CONTEMPT OF COURT PROCEEDINGS TO BE CONSIDERED: SIGNATORY BEWARE
Cost Schedules are signed and served every day. This case shows why they must be checked carefully before signature. Here the judge found that a claim made for counsel’s fees on an N260 had been false. This was one of…
COST BITES 418: THE PARTIES SHOULD SHARE THE COSTS OF AN ELECTRONIC PLATFORM (INITIALLY): THIS MULTI-CLAIMANT CASE IS MOST DEFINITELY SUITABLE FOR COSTS BUDGETING
There are two distinct issues of interest to litigators here. Firstly who should (initially at least) bear the costs of hosting on an electronic platform. Secondly whether a major multi-Claimant action should be subject to costs budgeting. “… costs budgeting…
COST BITES 417: THE LIABILITY FOR COSTS OF EACH CLAIMANT WHEN A MULTI-CLAIMANT ACTION WAS DISCONTINUED: BEING PART OF SUCH AN ACTION MAY NOT BE CHEAP…
There has been much publicity recently about liability for costs when “multi-claimant” actions fail, are struck out or discontinued. We have a case that considers those issues here, albeit on a relatively small scale. Each claimant was liable to pay…
COST BITES 416: SHOULD THE COURT IMPOSE A COSTS CAP WHEN THE CASE WAS BUDGETED? THIS IS RARELY GOING TO BE SUCCESSFUL…
This is an interesting judgment on whether the court should impose a costs cap in a case that was already subject to costs budgeting. The defendant had made an application to vary the budget which was pending. The judge had…
CAN THE WAY IN WHICH A CLAIMANT HAS CONDUCTED A CASE MEAN THAT IT SHOULD NOT HAVE SUMMARY JUDGMENT: “CLEAN HANDS” AND OTHER EQUITABLE MAXIMS CONSIDERED
We are looking at an unusual set of arguments here. The defendant, in resisting an application for summary judgment, submitted that the way in which the claimant had conducted the litigation itself meant the court should not grant judgment. It…
THROWBACK FRIDAY: ANOTHER (YES ANOTHER) CASE WHERE A LITIGANT ARGUED “MY CASE WAS SO HOPELESS I SHOULDN’T HAVE TO PAY YOUR COSTS” (OCTOBER 2024)
This week we have been looking at could broadly be called “ambitious” arguments by, or on behalf of, litigants as to why they should not pay costs. There are a surprising number of such cases. Here we revisit a post…
WE HAD SUCH A HOPELESS CASE WE SHOULDN’T PAY ALL THE COSTS BECAUSE YOU SHOULD HAVE APPLIED TO STRIKE US OUT: ARGUMENTS WITH AN “AIR OF UNREALITY” ABOUT THEM
A post yesterday looked at two cases where attempts were made to attribute some blame to a litigant’s opponents for not spotting certain issues arising from that litigant’s own conduct. Here we look at a case where this type of…
COST BITES 414 : A WITHDRAWN PART 36 OFFER STILL HAD AN IMPACT ON THE AWARD OF COSTS: CLAIMANTS COULD NOT RECOVER COSTS AFTER DATE OF OFFER
In this case the judge considered the question of whether a Part 36 offer that was withdrawn after trial should have any impact on the award of costs. The judge held that it should. If the claimants had accepted they…
COST BITES 413: GET YOUR FUNDING IN PLACE AND TELL EVERYONE IF THE MUSIC HAS STOPPED: CAT AWARDS COSTS ON THE INDEMNITY BASIS DUE TO CONDUCT
It goes without saying that this is a decision that must be music to the defendants’ ears. Not only was the claim dismissed the claimant was ordered to pay costs on an indemnity basis for a large part of the…
COST BITES 412: SHOULD THE CLAIMANT’S FAILURE TO GIVE FULL AND FRANK DISCLOSURE ON AN APPLICATION TO SERVE OUT LEAD TO THE DEFENDANTS RECOVERING INDEMNITY COSTS: CONDUCT CONSIDERED
This judgment considers whether certain, admitted, failures by the claimant to give full and frank disclosure should lead to costs being awarded against it, even though it defeated the defendants’ application to set aside the order that was made. The…
COST BITES 411: NON-PARTY COSTS ORDER MADE AGAINST CLAIMANT’S DIRECTOR : HE WHO EXPECTS TO BENEFIT RUNS A RISK OF PAYING THE COSTS…
This case considers the issue of whether it was appropriate to make a non-party costs order. The Master reached a clear conclusion that it was. The individual in question was effectively the driving force behind the litigation in addition to…
COST BITES 411: HOW DOES A COURT DETERMINE THE AMOUNT OF AN INTERIM PAYMENT AS TO COSTS WHEN THE CASE HAS NOT BEEN BUDGETED? SHOULD A PAYMENT BE ORDERED AT ALL?
Knowledge of the principles dealing with payments on account is important for all litigators. For successful parties it is a major aid in relation to cash flow. For the losing party a payment on account will reduce the interest payable. …
COST BITES 410: A CLAIMANT’S COMPLIANCE WITH THE RULES RELATING TO ISSUE AND PLEADING CANNOT BE USED AS A GROUNDS FOR REDUCING ITS RECOVERABLE COSTS
It is common for an unsuccessful part to argue that its liability to pay costs should be reduced because of the “conduct” of the successful party. We see such arguments raised here – with no degree of success. A party…
COST BITES 409: A PART 36 CASE TO FINISH OFF THE WEEK: CLAIM £8.4 MILLION GET £102,000 (HAVING TURNED DOWN AN OFFER OF £3.175 MILLION): IT IS NOT “UNJUST” FOR THE CLAIMANT TO FACE TO NORMAL PART 36 CONSEQUENCES, NOR WOULD THE COURT “PICK AND CHOOSE” IN RELATION TO THE COSTS PAYABLE
If ever a case served as a warning to the risks of litigation it is this one. The claimant sought damages of up to £8.4 million but obtained judgment of £102,000. This turned out to be expensive litigation, with the…
COST BITES 407: COURT OF APPEAL OVERTURNS DECISION STRIKING OUT POINTS OF DISPUTE BECAUSE OF NON-AINSWORTH COMPLIANCE: JUDGMENT GIVEN TODAY
In this case the Court of Appeal overturned a decision, itself made on appeal, which had struck out a crucial paragraph of Points of Dispute to a bill of costs. The crucial point here, however, is that this is not…
THE CURRENT IMPORTANCE OF PLEADINGS 85: THERE IS NO “FREE PASS” WHEN AN ACTION IS BROUGHT ON BEHALF OF MULTIPLE CLAIMANTS: “THERE IS A DEFINITE SENSE OF THE CLAIMANTS THRASHING ABOUT, TRYING TO FIND ANY ISSUES WHICH COULD BE TRIED WHICH AVOIDED ANY INVESTIGATION OF ANY FACTS.”
We are returning to this Court of Appeal decision for a second time. Initially we looked at the judgment in relation to the outcome – that the claims could be brought together. However there are important points made here in…
WHERE THINGS WENT WRONG IN LITIGATION (AND STOPPING IT HAPPENING TO YOU) 2: ADVISING A CLIENT THAT THEY ARE NOT LIABLE FOR COSTS BECAUSE PROCEEDINGS HAVE NOT BEEN SERVED
This post arises out of the previous post in the series. However here I want to concentrate on one issue arising out of this. The claimant’s solicitors appear to have advised the claimant that they would not be liable to…
WHERE THINGS WENT WRONG IN LITIGATION (AND STOPPING IT HAPPENING TO YOU) 1: COSTS ADVICE ON DISCONTINUANCE
This series is about examining cases where things went wrong for litigators and what readers can do to avoid this happening to them. The aim is not to criticise those who make mistakes but to use their experience to prevent…
COST BITES 406: CAN A PARTY RECOVER UNNECESSARY COSTS AS DAMAGES? THE CONSEQUENCES OF AN UNNECESSARY SECOND ACTION CONSIDERED IN THE HIGH COURT
This is a judgment that considers the difficult issue of whether a claimant, who has been put to unnecessary costs of pursuing to separate actions because of the defendant’s conduct, can claim the unnecessary elements of costs back as damages. …
COST BITES 404: JUDGE ORDERS DEFENDANT TO PAY COSTS ON THE INDEMNITY BASIS: PARTIES HAVE AN OBLIGATION TO ENGAGE WITH THE PROCESS OF LITIGATION: “THEY SHOULD BE USING NON-COURT BASED DISPUTE RESOLUTION WHEREVER POSSIBLE”
Here we look at a case where the court made an order for indemnity costs. The defendant had failed to engage fully in the litigation process and, importantly, failed to respond to the claimant’s offer to mediate. The Master was…
NEW COURT FEES COMING INTO FORCE ON THE 13th JULY 2026: SOME BRAND NEW PROVISIONS AND THE INFLATIONARY INCREASES: THE CIVIL AND FAMILY COURTS, THE MAGISTRATES’ COURT, THE LANDS CHAMBER (AND MANY OTHERS)
Some significant changes are taking place in court fees on the 13th July 2026. Some 170 fees will increase in line with inflation. Four sets of fees will be reduced to reflect reductions in their underlying costs. In addition there…
COST BITES 403: JUDGMENT TODAY: SUCCESS FEE AND ATE PREMIUM NOT PAYABLE BY CLIENT WHEN THE SOLICITOR FAILED TO MAKE REASONABLE ENQUIRIES ABOUT BTE INSURANCE
Here we look at a judgment given today which highlights the importance of considering the existence of pre-existing insurance policies when solicitors are acting for a claimant. The judge held that the solicitors had made inadequate enquiries in relation to…
BOTH SIDES WANTED A STRIKE OUT FOR NON-COMPLIANCE – BUT GOT NOWHERE (A FAIRLY EXPENSIVE – AND FRUITLESS DAY OUT…): “LOCKED HORNS” AND “SPIRITED CORRESPONDENCE”
Here we have applications to strike out by both sides for alleged non-compliance with a court order. The judge described the defendants’ application as “aggressive” and the claimant’s application as a “tit for tat” application. Ultimately, however, we are looking…
COST BITES 402: DOES THE FACT THAT LEGAL FEES HAVE BEEN PAID BY RELATIVES MEAN THAT A RESPONDENT IS NOT LIABLE TO PAY COSTS? THE INDEMNITY PRINCIPLE CONSIDERED
Here the court considered an argument that the indemnity principle meant that an unsuccessful respondent was not liable to pay the appellant’s costs. It was clear that the fees in question had been paid by family members and not the…
COST BITES 401: COURT OF APPEAL OVERTURNS TRIAL JUDGE’S DECISION ON COSTS: THE COMPLICATIONS THAT OCCUR WHEN A COURT IS ASKED TO TAKE DISHONESTY INTO ACCOUNT WHEN MAKING AN AWARD OF COSTS…
Here the Court of Appeal grappled with some interesting issues when it overturned a trial judge’s decision to make no order for costs. The Court of Appeal stated that although the judge had been critical of the conduct of the…
BACK TO BASICS MONDAY: WHAT ARE THE RULES IF A COURT ORDER DOES NOT STATE A SPECIFIC DATE FOR THE PAYMENT OF AN ORDER FOR COSTS?
Sometimes it may appear that this series is a bit too “basic”, dealing with things that (surely) everyone involves in litigation knows. However, more often than not, the topics are chosen because recent events have show that there is a…
COST BITES 400: MASTERCARD FUNDER FAILS IN THE JUDICIAL REVIEW OF ITS SHARE OF THE PROCEEDS : IT TURNS OUT THAT LITIGATION IS NOT PRICELESS
We have got to number 400 in this series. It is perhaps fitting we deal with (what may well be) the tail end of a mammoth case. Further it is a case where litigation funders felt that they had not…
COST BITES 399: WHEN THE COSTS OF THE LITIGATION ALMOST ENTIRELY CONSUME THE VALUE OF THE ESTATE BEING SUED:
This is another case that litigators and litigants need to read. An action against an estate led to the net value of the estate being “almost entirely” consumed by costs. During the course of the litigation the (unsuccessful) claimant already…
AN OFFER TO SETTLE THAT DOES NOT INCLUDE PROVISION FOR COSTS MAY WELL BE INEFFECTIVE: IT CERTAINLY WILL NOT LEAD TO A PETITION BEING STRUCK OUT: COURT OF APPEAL DECISION TODAY
Here we look at an argument that a petition should be struck out because the respondents had made a reasonable offer to resolve the issues between the parties. The Court of Appeal observed that the “reasonable offer” did not include…
COST BITES 398: MORE BUDGETING IN THE MERCEDES-BENZ LITIGATION: ONLY A “MODEST” REDUCTION OF £1 MILLION HERE: BUT WHY (THE COURT ASKS) WEREN’T REALISTICALLY REDUCED FIGURES PUT FORWARD IN THE FIRST PLACE?
Here we look at the remaining elements of costs budgeting in a case that we have looked at before. The reductions this time were not as severe as previously. It remains the case, however, that just over £1 million was…
COST BITES 397: THE PARTIES THAT SPENT £500,000 IN A DISPUTE THAT WAS WORTH £5,000: THE JUDGE FOUND GOOD REASON TO DEPART FROM THE DEFENDANT’S COSTS BUDGET (A CASE I WOULD ENCOURAGE EVERY LITIGATOR TO READ)
Occasionally there is a case that sends out clear lessons to litigator and litigants alike. We have such a case here. I would recommend it for universal reading. The judge observed that the parties had managed to spend over half…
COST BITES 396 : THE CLAIMANT’S CONDUCT WAS SUCH IT WAS APPROPRIATE TO AWARD INDEMNITY COSTS IN THE NATIONAL LOTTERY CASE; IT WAS NOT APPROPRIATE TO REDUCE THE SUCCESSFUL DEFENDANTS’ COSTS
We have seen many cases in which the courts have considered whether indemnity costs should be ordered. Here we have a case where the judge was clear in her view that the claimant’s conduct of the litigation was such that…
COST BITES 395: A RETAINER WAS NOT A CONTENTIOUS BUSINESS AGREEMENT BECAUSE THE TERMS IN RELATION TO HOURLY RATES RENDERED IT TOO UNCERTAIN (COURT OF APPEAL DECISION YESTERDAY)
This appeal has been much discussed in the specialist press. A solicitor’s client argued that the terms of a retainer rendered in a Contentious Business Agreement. This would have given her greater scope to dispute the bills. The Court of…
You must be logged in to post a comment.