FIXED RECOVERABLE COSTS: A POWER TO ORDER GREATER AMOUNTS IN “EXCEPTIONAL CIRCUMSTANCES” AND THE STING IN THE TAIL
Continuing the examination of fixed recoverable costs. CPR 45.9 gives the court power to order sums greater than FRC in “exceptional circumstances”. The applicant’s difficulties are (i) there is no definition of exceptional circumstances (ii) there is a real sting…
TODAY’S THE DAY: KEY POSTS AND ARTICLES ON FIXED COSTS
I suspect that this blog will be writing about fixed costs for some time to come. To mark (I won’t say “celebrate”) the start of the new regime I have done a round up previous posts, useful lectures and webinars…
NEW COSTS RULES: WHEN A CASE CAN’T GO INTO THE INTERMEDIATE TRACK
Continuing with the series about the new rules relating to fixed costs. Here we recap on those cases that are not affected by the rules (because of the commencement date) and those issues that must be allocated to the multi-track….
NEW FIXED COSTS RULES: THE NEW PART 28: CASE MANAGEMENT IN THE INTERMEDIATE TRACK: THE LENGTH OF WITNESS STATEMENTS AND EXPERT REPORTS
The new fixed costs provisions introduce the concept of the “Intermediate Track”. One point to note about this track is that there are specific rules about applying for directions. There are also very specific obligations in relation to the length…
COSTS AND FUNDING: LITIGATION FUNDERS CAN PROPERLY BE INTERVENORS IN FAMILY PROCEEDINGS
In Simon v Simon & Anor [2023] EWCA Civ 1048 the Court of Appeal considered the function of a litigation funder in matrimonial proceedings. The role is an important one and those providing funding are entitled to some measure of…
FIXED RECOVERABLE COSTS EXTENSION LECTURES: KERRY UNDERWOOD ON TOUR
The new rules as to fixed costs are coming soon. Kerry Underwood is undertaking a national tour of day long lectures on the fixed costs provisions. It cannot be stressed enough that the new rules are of significance to all…
COST BITES 103: INTERIM BILLS WERE NOT FINAL BILLS: CLIENT COULD STILL HAVE THEM ASSESSED
In Ivanishvili v Signature Litigation LLP [2023] EWHC 2189 (SCCO) Costs Judge Leonard rejected an argument that a series of bills rendered by a solicitor were “statutory” bills. This meant that all the bills could be subject to assessment. The…
PART 36 APPLIES TO CLAIMS THAT ARE NOT ABOUT MONEY: SILENCE DID NOT INDICATE A REFUSAL TO ENTER ADR: PART 36 CONSEQUENCES APPLIED
In Jones v Tracey & Ors (Re Costs) [2023] EWHC 2256 (Ch) Master Marsh (sitting in retirement) found that Part 36 applied to cases that were not about money. It was held that the fact that the action would be…
COST BITES 102: NOPE, YOU’RE NOT GETTING £870 AN HOUR: CREDIT CARD RATES ARE REDUCED
In Walter Hugh Merricks CBE v Mastercard Incorporated and Others [2023] CAT 53 the Competition Appeal Tribunal held that the hourly rates charged by both sides were too high to be recovered inter partes. The Guideline rates still provide a guide…
COST BITES 101: RECOVERING THE COSTS OF ENGLISH SOLICITORS IN SCOTTISH COURTS (THIS DOESN’T END WELL – FOR SOMEONE)
It is rare for this blog to cover (or pursue) a decision from Scotland. However the judgment in RECLAIMING MOTION IN THE CAUSE OF MARGARET JANIS KIRKWOOD AGAINST THELEM ASSURANCES [2023] ScotCS CSIH_3 has major implications for English & Welsh…
COST BITES 100: A LITIGANT IN PERSON CANNOT RECOVER THE COSTS OF A NON-SOLICITOR ENTITY
In Reeves v Pickton & Ors [2023] EWHC 2198 (SCCO) Costs Judge Leonard considered whether a litigant in person, who had been assisted by a non-solicitor entity, could recover the costs of that assistance on an inter-partes assessment. After a…
COST BITES 99: A SUMMARY ASSESSMENT ON A STANDARD BASIS AFTER A SOLICITOR AND OWN CLIENT ON AN INDEMNITY BASIS: THERE IS MUCH TO LEARN HERE
The judgment of Costs Judge Leonard in Hughes Fowler Carruthers Ltd v Gubbay [2023] EWHC 2188 (SCCO) contains several matters of interest. It is a reminder of that basis of the standard assessment of costs, and how this differs to…
CAN A CLAIMANT RECOVER MORE THAN THEY HAVE CLAIMED IN THE CLAIM FORM? YES THEY CAN…
We will be looking several aspects of the judgment of Jason Beer KC (sitting as a High Court Judge) in Celebrity Speakers Ltd v Daniel & Ors [2023] EWHC 2158 (KB). The first issue is a surprisingly common one. Can…
COST BITES 98: THE SIMILARITIES IN MEDICAL REPORTS SHOULD BE REFLECTED IN THE COSTS OF REPORTS
We are returning again to HD v Northern Devon Healthcare NHS Trust [2023] EWHC 2118 (SCCO) Costs Judge James considered the sums that should be allowed in relation to the claimants’ medical reports. This involved a close examination of the reports…
MAJOR PROBLEMS WHEN THE JUDGE IS “NOT IMPRESSED” BY THE SCHEDULES OF LOSS: “MUCH TIME WAS THROWN AWAY ON CALCULATIONS BASED ON THE WRONG PREMISES”
We are returning to the judgment of Costs Judge James in HD v Northern Devon Healthcare NHS Trust [2023] EWHC 2118 (SCCO). This is a case that anyone drafting a Schedule of Damages should read. These actions were settled well before…
AN OFFER WAS A VALID PART 36 OFFER: THE CLAIMANTS HAD DONE BETTER THAN THAT OFFER: IT WAS NOT UNJUST FOR NORMAL PART 36 CONSEQUENCES TO FOLLOW
In Colicci & Ors v Grinberg & Anor (Re Costs) [2023] EWHC 2075 (Ch) Recorder Mark Anderson KC (sitting as a High Court Judge) found that claimants had done better than their own Part 36 offers. He rejected the defendants’…
DEFENDANT NOT GIVEN PERMISSION TO ENFORCE COSTS IN A CASE WHERE THERE WAS A “MIXED CLAIM”
I am grateful to Kevin Donoghue from Donoghue solicitors for bringing my attention to the judgment of Mrs Justice Hill in Afriyie v Commissioner of Police for the City of London (Re Costs) [2023] EWHC 1974 (KB). It is a…
CLAIMANTS CAN RECOVER THE COSTS OF ATTENDING A PRE-INQUEST REVIEW: THE DEFENDANT’S RHETORIC WAS MISPLACED: THE CLAIMANT’S COSTS WERE NOT “EYE WATERING” AT ALL
In Briley & Ors v Leicester Partnership NHS Trust & Ors [2023] EWHC 1470 (SCCO) Costs Judge James found that the costs of attending a pre-inquest review were held to be recoverable inter partes. “I would add that whilst…
CLINICAL NEGLIGENCE CASE WHERE CLAIMANT OFFERED TO ACCEPT 90% OF DAMAGES WAS A VALID PART 36 OFFER: IT WAS NOT UNJUST FOR THE DEFENDANT TO FACE THE CONSEQUENCES
In Chapman v Mid and South Essex NHS Foundation Trust (Re Costs) [2023] EWHC 1871 (KB) Mrs Justice Hill decided that a claimant’s offer to accept 90% of damages in a clinical negligence case, where there had been a trial…
COST BITES 96: A “REPLACEMENT” BUDGET WAS SERVED LATE: RELIEF FROM SANCTIONS GRANTED
In Henderson and Jones Ltd v Stargunter Ltd & Anor [2023] EWHC 1849 (TCC) Neil Moody KC (sitting as a High Court Judge) considered whether a formal application for relief from sanctions was needed in a case where a party…
CLAIMANT FAILS TO SERVE THE CLAIM FORM PROPERLY: DEFENDANT FAILS TO NOTICE AND APPLIES TO STRIKE OUT ACTION: APPLICATION WAS UNNECCESARY & DEFENDANT NOT AWARDED COSTS
In Johnson v Devon And Cornwall Police & Ors [2023] EWHC 690 (Ch) HHJ Paul Matthews (sitting as a High Court Judge) held that a defendant should have known that the proceedings against it had not been served properly. The…
COST BITES 95: A SOLICITOR’S BILL IS “PAID” WHEN FUNDS ARE DEDUCTED FROM DAMAGES AND A COMPLIANT BILL SENT TO THE CLIENT
NB this decision was overturned by the Supreme Court. See the discussion on the Supreme Court decision here. In Menzies v Oakwood Solicitors Ltd [2023] EWCA Civ 844 the Court of Appeal held that a solicitors bill is “paid” when…
INTEPRETERS’ FEES ARE RECOVERABLE IN THE FIXED COSTS REGIME: COURT OF APPEAL DECISION
In Santiago v Motor Insurers’ Bureau [2023] EWCA Civ 838 the Court of Appeal held that the costs of interpreters are recoverable under the fixed costs regime. It is an indictment of the wholly inadequate thought given to the fixed…
THE COSTS JUDGE OVER YOUR SHOULDER: DEDUCTING COSTS FROM THE CLIENT’S DAMAGES: WEBINAR 20th SEPTEMBER 2023
On the 20th September 2023 I am presenting a webinar looking at issues relating to the deduction of costs from the client’s damages in a personal injury claim.This webinar looks at the regulations and case law relating to the deduction…
SUCCESSFUL CLAIMANT’S PART 36 OFFER: “PART OF THE POINT OF THE PENAL CONSEQUENCES OF PART 36 IS TO PREVENT THE SORT OF COSTS ARGUMENT THAT MIGHT OTHERWISE BE MADE”
In Green v White Lantern Film (Britannica) Ltd [2023] EWHC 1391 (Ch) Mr Justice Michael Green considered arguments as to conducts and costs in a case where the claimant had beaten her own Part 36 offer. The normal Part 36…
COST BITES 94: SOLICITOR AND OWN CLIENT COSTS: COSTS BUDGETING: BUDGETING OVERSPEND: THE DUTY TO WARN: THE APPROPRIATE SUCCESS FEE
In JXC v NIS [2023] EWHC 1000 (SCCO) Costs Judge Leonard considered issues relating to the recoverability of costs from the client over and above those recovered inter-partes. This case shows the importance of informing the client about the costs…
CLAIMANT’S OFFER TO ACCEPT 99.9% OF THE CLAIM WAS A VALID PART 36 OFFER: BUT NORMAL PART 36 BENEFITS WOULD NOT APPLY
In Sleaford Building Services Ltd v Isoplus Piping Systems Ltd [2023] EWHC 1643 (TCC) Mr Alexander Nissen KC, held that a claimant’s offer to accept 99.9% of its claim was a valid Part 36 offer. However it was held to…
NEW EDITION OF THE SENIOR COURT COSTS OFFICE GUIDE (2023)
The latest edition of the Senior Court Costs Office Guide is now available here. As ever the Guide contains a detailed and comprehensive guide to all the procedural (and some substantive) issues THE INTRODUCTION “The Senior Courts Costs Office (SCCO)…
COST BITES 93: SOLICITOR IS NOT LIABLE TO PAY FEES WHEN THEY WERE ACTING AS A PROFESSIONAL DEPUTY
The arguments raised in Brassington v Knights Professional Services Ltd (t/a Knights) (Re Court of Protection – Deputyship) [2023] EWHC 1568 (Ch) are interesting ones. HHJ Hodge KC (sitting as a High Court Judge) rejected the defendant’s assertions that a…
PART 36, LATE ACCEPTANCE AND QOCS: COURT OF APPEAL DECIDE AN UNUSUAL ISSUE: A COURT CANNOT MAKE AN ORDER PROTECTING A PARTY AGAINST A POTENTIAL CHANGE IN THE RULES
In Tabbitt v Clark [2023] EWCA Civ 744 the Court of Appeal rejected an application for a declaration that would have “future proofed” the claimant’s position in relation to liability for costs following late acceptance of the defendant’s Part 36…
COST BITES 92: THE TRANSIT OF VENUS, THE WISDOM OF SOLOMON AND THE QUESTION OF WHETHER TIME SPENT AT CASE MANAGEMENT MEETINGS IS RECOVERABLE INTER PARTES
I am grateful to Andrew Davis KC for bringing my attention to the judgment of Master McCloud in Hadley v Przybylo (Costs, Costs budgeting, Costs lawyers, personal injury, case manager, recoverability) [2023] EWHC 1392 (KB). The Master rejected the argument…
CLAIMANT’S PART 36 OFFER WAS FOR 96% OF THE CLAIM: IT WAS HELD UNJUST FOR NORMAL PART 36 CONSEQUENCES TO APPLY
In Yieldpoint Stable Value Fund, LP v Kimura Commodity Trade Finance Fund Ltd [2023] EWHC 1512 (Comm) Stephen Houseman KC (sitting as a High Court Judge) found that it was not unjust to disallow the normal Part 36 consequences in…
COST BITES 91: CONVERSION OF CURRENCY WHEN A RECEIVING PARTY HAS PAID ITS LAWYERS IN EUROS
We have looked before at the case helpfully sent by Nicholas Lee Paragon of Costs Solutions , in Micula and others v Romania [2023] UKSC 2018/0177 (23 May 2023). Here we look at that part of the judgment that deals…
CLAIMANTS’ APPLICATION TO VARY COSTS BUDGET DISMISSED: A SELF – IMPOSED DIFFICULTY DID NOT (ON THESE FACTS) AMOUNT TO A SIGNIFICANT DEVELOPMENT
In Simpsons (Preston) Ltd & Anor v MS Amlin Underwriting Ltd [2023] EWHC 1370 (Comm) HHJ Pearce refused the claimants’ application to vary the costs budget in relation to disclosure. The reason the application was made because the claimants had…
BE CAREFUL WHEN INSTRUCTING AN EXPERT: TEST THEIR EVIDENCE BEFORE TRIAL: THE CONSEQUENCES FOR YOUR CLIENTS COULD BE PROFOUND
We have looked at the decision in relation to costs in the case of ABC & Ors v Derbyshire County Council & Anor [2023] EWHC 986 (KB) in an earlier post. The decision on costs, and the primary judgment on…
COST BITES 90: CLAIMANTS LIABLE TO PAY 5% OF DEFENDANT’S COSTS: HUMAN RIGHTS, PERSONAL INJURIES AND “MIXED CLAIMS”
In ABC & Ors v Derbyshire County Council & Ors, Re Costs [2023] EWHC 1337 (KB) Mrs Justice Hill considered the liability of the claimants to pay costs in a “mixed claim” which was, primarily, a personal injury claim. She…
COST BITES 89: A SUPREME COURT ORDER FOR COSTS CONSTRUED: COSTS WERE (ESSENTIALLY) RESTRICTED TO PAYMENT OF ONE PARTY, TWO SILKS AND ONE JUNIOR
I am grateful to Nicholas Lee Paragon of Costs Solutions for sending me details of the decision in Micula and others v Romania [2023] UKSC 2018/0177 (23 May 2023) where Costs Judge Leonard and Costs Officer Sewell considered the specific…
COST BITES 88: JUDGE REFUSES DEFENDANT’S APPLICATION FOR NON-PARTY DISCLOSURE AGAINST AN AGENCY SEEKING A BREAKDOWN OF FEES
I am grateful to Ryan O’Mara of Scott Rees & Co for sending me a copy of the judgment of District Judge Jenkinson in Sephton -v- Anchor Hanover Group (County Court at Liverpool, 20th April 2023 – a copy of which…
RULE CHANGES ON THE 1ST OCTOBER 2023: FIXED RECOVERABLE COSTS AND ALL THAT: LOOKING AHEAD – A QUICK GLANCE AT THE PRIMARY SOURCES
The rules introducing the “Intermediate Track” for cases between £25,000 and £100,000 are now published, they come into force on the 1st October 2023. There are links to the source material below. A more detailed guide to the changes will…
COST BITES 87: ISSUES RELATING TO EXCEEDING THE BUDGET LEFT TO THE COSTS JUDGE
In BES Commercial Electricity Ltd & Ors v Cheshire West And Chester Council [2022] EWHC 3333 (KB) Mr Justice Freedman declined an invitation to give any indication in relation to the defendant’s application to depart from its budget. The matter…
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 85: JUDGE HAD THE POWER TO MAKE COSTS ORDER WHICH INCLUDED COSTS OF APPLICATIONS AGAINST NON-PARTY
In McCarthy v Jones & Anor [2023] EWCA Civ 589 the Court of Appeal refused an appeal against a decision that an unsuccessful party pay the costs involved in applications against a non-party. The trial judge had a discretion to…
COST BITES 84: MEDICAL AGENCY MUST PROVIDE A BREAKDOWN OF ITS BILL TO SHOW WHAT THE EXPERT WAS PAID: DECISION ON APPEAL
I am grateful to my colleague Paul Hughes for providing me with a copy of the judgment of HHJ Bird in Northampton General Hospital NHS Trust -v- Hoskin, County Court at Manchester22nd May 2023, a copy is available here HoskinsAppealJudgment. …
COST BITES 83: DEFENDANT SERVING BUDGET LATE SCRAPES HOME IN A “BORDERLINE” CASE
In K/S Mountain Invest v Ducat Maritime Ltd [2023] EWHC 939 (Comm) HHJ Keyser KC (sitting as a High Court Judge) granted the defendant relief from sanctions following the late filing of its costs budget. The defendant was, perhaps, fortunate….
COST BITES 82: WHEN THE SIZE OF THE COSTS STARTS TO SWAMP THE SIZE OF THE ESTATE: AN EXHORTATION TO PARTIES INVOLVED IN INHERITANCE CLAIMS
The judgment of Master Brightwell in Amnir & Ors v Bala & Ors [2023] EWHC 1054 (Ch) contains a warning to many, if not all, litigants, particularly those involved in Inheritance Act claims. The size of the costs in the…
COST BITES 81: A SUCCESSFUL APPELLANT GETS THEIR COSTS: THE COURT WOULD NOT GIVE A “BLANK CHEQUE IN RELATION TO PAYMENT ON ACCOUNT OF COSTS
There are two matters of interest in the Court of Appeal judgment in R (On the Application Of) v Thanet District Council (Re Costs) [2023] EWCA Civ 526. Firstly the court’s rejection of an argument that the successful party had…
Costs and the administration of estates: Kings Chambers Costs Team Webinar: 18th May 2023
On the 18th May 2023 at 4.00 pm my colleagues at Kings Chambers Matthew Smith and Andrew Hogan are presenting a webinar on costs and the administration of estates. “the consideration that professional advisers should generally be paid for their…
COST BITES 81: SOLICITOR WORKING UNDER A CFA HAS A DUTY TO KEEP CLIENT INFORMED OF THE “STAGGERINGLY HIGH LEVEL OF COSTS” IN THE ACTION, INCLUDING EXPERTS: HIGH COURT DECISION
There is much for litigators to learn from the judgment of Mr Justice Fancourt in Forster v Reynolds Porter Chamberlain LLP [2023] EWHC 1150 (Ch). Here I want to concentrate upon one element of the case – the need to…
INTEREST ON DAMAGES FOR PERSONAL INJURY CANNOT BE USED AS A MEANS OF PENALISING A DEFENDANT FOR POOR BEHAVIOUR: PART 36 ISSUES ALSO CONSIDERED
The judgment of Mr Justice Ritchie in Smout v Wulfrun Hotels Ltd [2023] EWHC 1128 (KB) considers the question of the use of interest as a penalty for the poor conduct of a defendant. The judge held that interest should…
COSTS BITES 80: WHERE THE BILL OF COSTS WAS FOR IMAGINARY WORK AND “JUST FICTION”: ASSESSMENT SHINES A CLEAR LIGHT OF DEFICIENCES IN BILLS: AT SUBSTANTIAL COST TO THE CLAIMANTS’ SOLICITOR
The judgment of Senior Costs Judge Gordon-Saker in Ikin -v- Shawbrook Bank Limited [2023] EWHC 1075 (SCCO) contains many, many lessons of importance for those drafting and those signing bills of costs. The judge found that there were manifold failures…
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