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…
CIVIL PROCEDURE BACK TO BASICS 95: ACCEPTING A PART 36 OFFER WHEN THERE IS MORE THAN ONE DEFENDANT
This post arises out of an interesting question I was asked in a recent webinar on Part 36.* The questioner asked wanted to accept a Part 36 offer by one defendant and continue the action against others. The situation here…
COST BITES 79: JUDGE AWARDS GUIDELINE RATES EVEN IN HEAVY COMMERCIAL CASE
In Manek & Ors v 360 One WAM Ltd & Ors (Re Consequentials) [2023] EWHC 985 (Comm) Simon Rainey KC (sitting as a Judge of the High Court) declined to award rates that were higher than the Guideline Rates in…
THE EXTENSION OF FIXED COSTS: USEFUL LINKS AND GUIDES
The extension of fixed costs is a major topic. I will write about the practical implications when we are nearer to the implementation date. In the interim there are some useful links and guides. THE RULES The new rules…
COST BITES 78: A CASE WHERE A LAWYER WAS CONFINED TO LITIGANT IN PERSON RATES
In Wilson v Emmott [2023] EWHC 816 (KB) Mr Justice Saini (sitting with Senior Costs Judge Gordon-Saker as a costs assessor) rejected a lawyer’s appeal against a decision that the lawyer was only entitled to recover costs on the basis…
COST BITES 77: JUDGE REJECTS ARGUMENT THAT TERMS OF DISCOUNTED CONDITIONAL FEE AGREEMENTS MEANT THE SOLICITORS WERE NOT ENTITLED TO ANY COSTS OF ALL: COMPULSORY READING HERE – AND MUCH TO THINK ABOUT
The judgment of Judge Brown, sitting as a Master of the Kings Bench, in Ascension Asset Management Ltd & Anor v Sky Solicitors Ltd [2023] EWHC 875 (KB) should be mandatory reading for any litigator who enters into a retainer…
COST BITES 76: COURT DID NOT MAKE AN ORDER FOR COSTS AGAINST HEALTH AUTHORITY IN A WELFARE CASE: THERE ARE OTHER WAYS A COURT CAN SHOW ITS DISAPPROVAL OF A PARTY’S CONDUCT OF A CASE
In West Hertfordshire Hospitals NHS Trust v AX (Rev1) [2023] EWCOP 11 Vikram Sachdeva KC (sitting as a High Court Judge) refused an application for costs against a health authority. The judgment contains a review of the rules relating to…
COST BITES 75: LIABILITY TO COSTS: RETROSPECTIVE ATTEMPT TO VARY COSTS BUDGET: WITHOUT PREJUDICE OFFER AFFECTS LIABILITY TO COSTS MADE PRIOR TO THAT OFFER
We looked at the judgment of HHJ Hodge QC (sitting as a High Court judge) in Wigan Borough Council v Scullindale Global Ltd & Ors [2021] EWHC 779 (Ch) in an earlier post on Proving Things. There is a subsequent…
COST BITES 74: CLAIMANTS HAVE TO PAY THE COSTS OF DISCONTINUED APPLICATION FOR A GROUP LITIGATION ORDER: COUNTING THE COPPERS
In Beck & Ors v Police Federation of England and Wales (Re Costs) [2023] EWHC 685 (KB) Senior Master Fontaine held that the claimants should pay the costs of an – abandoned – application for a Group Litigation Order. “I…
PART 36 RULES CONSIDERED IN DETAIL: WAS THE OFFER MADE IN TIME? WAS THE OFFER VALID? WHEN DOES A TRIAL “START”? WAS IT UNJUST FOR THE NORMAL CONSEQUENCES TO APPLY?
The judgment of Andrew Sutcliffe KC, sitting as a High Court Judge, in Mate v Mate & Ors [2023] EWHC 806 (Ch) involves a consideration of several issues in relation to Part 36. The judge decided that a Part 36…
THE NEW RULES ON QOCS FROM APRIL 6th: OMNIBUS EDITION
The new rules on QOCS come into force on the 6th April. Here is a review of the key points as to issue, the consequences and links to useful commentary. WHEN THE RULES COME INTO FORCE The key date…
HEARING AND TRIAL BUNDLES: ARE THE COSTS OF PREPARATION RECOVERABLE? WELL, YES THEY ARE (IN PART)
There was some discussion on Twitter earlier this evening as to whether the cost of preparing bundles is recoverable at all. Since we have not had a case featuring a judicial complaint about bundles for several months* and “bundle cases”…
WHAT TO DO IF THE DEFENDANT MAKES AN EARLY PART 36 OFFER: WEBINAR 30th MARCH 2023
The changes to the rules as to the set off of QOCS for action issued on or after the 6th April 2023 makes the proper assessment of Part 36 offers of even more importance. Not only will the costs incurred…
MAKE UNJUSTIFIED ALLEGATIONS IN A LETTER OF CLAIM AT YOUR PERIL – YOU CAN PAY THE COSTS: ON AN INDEMNITY BASIS
The judgment of Deputy Master Nurse in Stubbins Marketing Ltd & Ors v Rayner Essex LLP & Anor [2023] EWHC 515 (Ch) contains an important lesson for anyone drafting a letter of claim. The judge ordered that the claimants pay…
APRIL 5th IS AN IMPORTANT DATE: WHAT IS MEANT BY “ISSUED” IN THE CONTEXT OF CHANGES TO QOCS?
The new rules relating to the ability to set off defendant’s costs liabilities against a claimant’s costs and damages have, I am told, led to a rush to issue proceedings and a backlog in some courts. These rules come into…
PART 36, COSTS: THE JUDGE WAS CORRECT NOT TO FIND THAT PART 36 CONSEQUENCES SHOULD NOT APPLY: A DISPUTE “CONDUCTED IN AN ENTIRELY DISPROPORTIONATE WAY AND AT ENTIRELY DISPROPORTIONATE COST”
In Lampor & Ors v Jones [2023] EWHC 667 (Ch) Mr Justice Mellor dismissed the appeals by both parties in relation to costs orders made following Part 36 offers. The trial judge had held that the defendant had failed to…
COST BITES 73: APPEAL ON HOURLY RATES DID NOT GO AS THE APPELLANT PLANNED: THE GUIDELINE HOURLY RATES AND DETAILED ASSESSMENT
In Harlow District Council v Powerrapid Limited (Rev1) [2023] EWHC 586 (KB) Mr Justice Choudhury, sitting with Costs Judge Rowley as an assessor, rejected an appeal about the hourly rates allowed by the costs judge. There are important passages about…
THE COSTS JUDGE OVER YOUR SHOULDER – MAXIMISING RECOVERY ON ASSESSMENT: WEBINAR 6th APRIL 2023
I am presenting a webinar on the 6th April 2023 – The Costs Judge Over Your Shoulder 2023 – Maximising recovery. Booking details are available here. THE WEBINAR “Here the reduction was very large and the reason for the reduction was…
COSTS BITES 73: IN A WASTED COSTS APPLICATION THE APPLICANTS FAILED TO GET PAST THE FIRST STAGE
In King & Ors v Stiefel & Ors [2023] EWHC 453 (Comm) Mr Justice Jacobs refused to allow a wasted costs application to pass stage one of the process. The issues were too complex and the costs to high, to…
COST BITES 72 : COSTS BETWEEN CREDITOR AND SUPPLIER UNDER THE CONSUMER CREDIT ACT: CREDITOR’S ARGUMENT HITS A (BLACKPOOL) ROCK
Barrister Henry King has kindly sent me a copy of the judgment in Pennington -v- Creation Financial Services Ltd, a decision of District Judge Woosnam in the County Court at Blackpool, a copy of which is available here Pennington v…
COST BITES 60: THE COURT WOULD NOT RETROSPECTIVELY REALLOCATE A CASE TO THE SMALL CLAIMS TRACK:
I am grateful to Craig Leigh for sending me copies of two judgments of Recorder David Allen K.C. in the case of Johnson -v- GE Money Secured Loans Ltd. The second judgment in relation to costs contains a decision on…
REDUCING THE RISKS OF ADVERSE COSTS ORDERS IN CIVIL LITIGATION: WEBINAR 23rd MARCH 2023
With the changes coming into place in relation to QOCS on the 6th April 2023 it is now more important than ever that claimants avoid adverse costs orders. This webinar looks at the best and safest means of litigating to…
FIXED COSTS STILL APPLIED AFTER AN ADJOURNMENT AND TWO ABORTED TRIALS: COVID WAS AN EXCEPTIONAL TIME BUT DID NOT GIVE RISE TO EXCEPTIONAL CIRCUMSTANCES
I am grateful to barrister James Miller for sending me a copy of the judgment of District Judge Lindsey Moan in the case of Osuzuwa -v- Madeira, a copy of which is available here Osuzuwa v Madeira. The judge…
THE NEW RULES ON QOCS 3: WHAT INFORMED COMMENTATORS ARE SAYING: & TWO USEFUL WEBINARS
In the third in this series I thought it would be useful to highlight what informed commentators are saying in relation the new rules. I have gathered a range of views below. I have taken some key comments, however reading…
NO ORDER FOR COSTS WHEN AN APPLICATION HAD BEEN ADJOURNED DUE TO AN INAPPROPRIATE TIME ESTIMATE
In Harrington Scott Ltd v Coupe Bradbury Solicitors Ltd [2023] EWHC 294 (Ch) HHJ Hodge KC, sitting as a High Court Judge, decided that the costs of an application that was adjourned due to an inappropriate time estimate should not…
THE NEW RULES ON QOCS 2: WHAT THEY DO AND WHEN THEY DO IT FROM…
This is the second in the series that examines the new rules as to QOCS coming into force on the 6th April 2023. Here we look at the impact of the new rules and the date of implementation. …
COST BITES 59: COSTS AGAINST THE CLAIMANT EVEN THOUGH THE DEFENDANTS’ APPLICATION WAS UNSUCCESSFUL: HOWEVER THE JUDGE FELT TOTALLY UNABLE TO RELY ON A COSTS SCHEDULE
Another example of costs not following the event can be seen in the judgment of Mrs Justice Smith in The Financial Conduct Authority v Papadimitrakopoulos & Anor [2022] EWHC 3048 (Ch). The judgment also raises other issues in relation to…
COSTS BITES 58: SUMMARY ASSESSMENT OF COSTS IN A PREMIER LEAGUE CASE: COSTS SHOULD NOT TOTALLY OVERSHOOT THE POST
There is an interesting decision as to costs in the judgment of Mr Justice Miles in The Football Association Premier League Ltd v Pattie & Ors [2023] EWHC 296 (Ch) in relation to the assessment of costs when a case…
COST BITES 57: ASKING THE JUDGE TO DETERMINE THE COSTS AFTER SETTLEMENT: YOU CAN’T ALWAYS GET WHAT YOU WANT (COURT OF APPEAL VERSION)
There have been some interesting decisions recently on issue based costs orders and costs not always following the event. In Tradition Financial Services Ltd v Bilta (UK) Ltd & Ors [2023] EWCA Civ 112 the Court of Appeal upheld a…
DEFENDANT’S APPLICATION FOR AN ORDER THAT CLAIMANT REDRAW BILL OF COSTS DISMISSED: EXPERIENCE OF FEE EARNERS IS A MATTER FOR THE DETAILED ASSESSMENT PROCESS
An interesting point was considered by Costs Judge Nangalingam in Brierley v Otuo & Ors [2023] EWHC 275 (SCCO). The defendant paying party argued that a bill of costs should be redrawn. One of the grounds for the application was…
COST BITES 56: IF YOU DISCONTINUE AGAINST A DEFENDANT YOU HAVE TO PAY THE COSTS
In Lendlease Construction (Europe) Ltd v AECOM Ltd & Anor [2022] EWHC 2855 (TCC) Mrs Justice Joanna Smith held that a claimant that was discontinuing against one of the defendants in an action should pay the costs. There was no…
THE NEW RULES ON QOCS AND COSTS 1: IMPLEMENTATION
The Civil Procedure (Amendment) Rules 2023 make major changes to the rules relating to the set off of costs and QOCS, reversing the decision of the Supreme Court in Ho -v- Adelkun. Here I want to look at the rule…
FUNDAMENTAL DISHONESTY FOUND WHEN AN INVOICE WAS DOCTORED: NOT EVERYTHING CAN BE SAID WITH FLOWERS
I am grateful to barrister William Rankin for sending me a copy of the judgment of Recorder Knifton KC in Hamblett -v- Liverpool Wholesale Flowers Limited (Liverpool County Court, 23rd January 2023) a copy of which can be found here …
ITS OFFICIAL – THE BEST COSTS ADVICE YOU CAN GIVE TO A YOUNG LAWYER: READ IT HERE: CONTEST WINNER
Following detailed discussions by the judging panel the winner of the Wig and Pens Prize for the best costs advice has been decided. THE CRITERIA “What single piece of Advice on costs would you give to a young lawyer? …
CLAIMANT FAILS IN AN APPLICATION FOR WASTED COSTS AGAINST HIS OWN LAWYERS: HOWEVER THERE IS AN IMPORTANT LESSON HERE
In Costa v Dissociadid Ltd & Anor [2023] EWHC 49 (IPEC) the claimant was unsuccessful in an application for wasted costs against his own lawyers. However the judgment tells us more than that. It is an object lesson in the…
COST BITES 55: A NON-PARTY COSTS ORDER NOT MADE AGAINST CLAIMANT’S SOLICITORS IN RELATION TO COSTS OF ASSESSMENT: QOCS MAY BE A PROBLEM FOR THE DEFENDANT – BUT THIS IS NOT THE WAY TO SOLVE IT…
In PME v The Scout Association [2023] EWHC 158 (SCCO) Costs Judge Leonard rejected the defendant’s argument that a non-party costs order should be made against the claimant’s solicitors in relation to the defendant’s costs of assessment and subsequent applications…
COST BITES 54: THOSE COSTS BUDGETS MAY BE AGREED BUT THEY ARE NEITHER REASONABLE NOR PROPORTIONATE: AND THE COURT IS GOING TO SAY SO.
In Lemos & Ors v Church Bay Trust Company Ltd & Ors [2023] EWHC 157 (Ch) Insolvency and Companies Court Judge Jones made it clear that he did not accept the reasonableness of the costs budgets of both parties. The…
COSTS BITES 53: POSSIBILITY OF AN APPEAL AND INABILITY TO RELY ON COSTS BUDGET ARE NOT GROUNDS FOR REFUSING AN INTERIM ORDER FOR COSTS
In Isaac v Tan & Anor (Re Costs) [2022] EWHC 3478 (Ch) Mr Justice Adam Johnson considered issues of costs following an unsuccessful unfair prejudice application relating to the shares of Cardiff City Football Club. He held that the application…
COST BITES 52: “WE WANT IT ALL AND WE WANT IT NOW”: COURT REFUSES CLAIMANT’S APPLICATION FOR A SUMMARY ASSESSMENT OF COSTS
One of the aims of this series is to look at those issues of costs that are, on the face of it, incidental to the main issue decided by the court. However, in practical terms, the costs issue is of…
COST BITES 51: CASE FOR FALSE IMPRISONMENT WAS APPROPRIATE FOR THE FAST TRACK NOT SMALL CLAIMS TRACK: DECISION UPHELD ON APPEAL
In Wilkins v Serco Ltd [2023] EWHC 61 (KB) Mrs Justice Heather Williams rejected the defendant’s appeal in relation to allocation of a case for false imprisonment. She upheld a finding that the case would have been allocated to the…
COST BITES 50: USEFUL LINKS ON COSTS FROM KINGS CHAMBERS: TAKE YOUR PICK…
There are a large number of helpful links on Kings Chambers’ Resource page. Here I link specifically to those relating to costs. Firstly the newsletters and articles and secondly the regular series of webinars. NEWSLETTERS Costs Litigation Newsletter:…
COST BITES 49: ARE THE COSTS OF A MEDICAL AGENCY RECOVERABLE IN THE FIXED COSTS REGIME? DISTRICT JUDGE FINDS THAT THEY ARE
Are the costs of a medical agency recoverable under the fixed costs regime? I am grateful to barrister John Meehan for sending me a copy of the judgment of District Judge Phillips in Wilkinson-Mulvaney -v- UK Insurance Ltd (19th January…
MAKING A MISTAKE ON THE DAMAGES CLAIM PORTAL IS NOT NECESSARILY AN ABUSE OF PROCESS: AN APPLICATION THAT PROVED COSTLY FOR THE DEFENDANT
I am grateful to Express Solicitors for sending me a report of a decision in Oxford County Court relating to the Damages Claim Portal. The claimant had used the Portal to issue against the Crown. The Portal cannot be used…
COSTS REDUCED BY 70% BECAUSE OF MISCONDUCT IN ASSESSMENT (AFTER BEING REDUCED BY 95% DURING THE ASSESSMENT): CLAIMANT’S APPLICATION FOR PERMISSION TO APPEAL REFUSED
The judgment of Mr Justice Murray in AB v Secretary of State for Justice [2023] EWHC 72 (KB) is part of an extraordinary saga in relation to a costs assessment. Costs had been reduced by 95% on assessment and reduced…
COST BITES 49: A LAWYER WHO ACTS FOR HIMSELF HAS … A DIFFICULT TIME GETTING PAID: SOLICITOR DEFENDANT CONFINED TO LITIGANT IN PERSON RATES
In Patel -v- Karmakar (12th January 2023) District Judge Lumb, sitting as a Regional Costs Judge, decided that a solicitor acting for himself in litigation could only recover the litigant in person rate. A copy of the judgment is available…
IS THE PEN MIGHTIER THAN THE SWORD? WHAT IS THE BEST ADVICE ON COSTS YOU CAN GIVE TO A YOUNG LAWYER? WIN A PEN – WITH HISTORY BEHIND IT
What single piece of Advice on costs would you give to a young lawyer? What would help them throughout their career? I would be interested to know and, thanks to the generosity of David Bentley at Wig and Pens, I…
PROVING THINGS 246: WHEN THE WITNESS EVIDENCE MATCHES NEITHER THE PLEADINGS NOR THE CONTEMPORARY RECORDS
We are looking again at the judgment in Excalibur & Keswick Groundworks Ltd v McDonald [2023] EWCA Civ 18 from a slightly different stance. The appeal was about QOCS and setting aside a notice of discontinuance. However the process that led…
COURT OF APPEAL DECISION: DEFENDANT SHOULD NOT HAVE BEEN GRANTED PERMISSION TO SET ASIDE NOTICE OF DISCONTINUANCE: DEFENDANT WOULD NOT HAVE BEEN ABLE TO STRIKE OUT THE CLAIM
In Excalibur & Keswick Groundworks Ltd v McDonald [2023] EWCA Civ 18 the Court of Appeal rejected the defendant’s appeal, which was an attempt to subvert the principles of Qualified One Way Costs Shifting (“QOCS”). The claimant discontinued the action…
COST BITES 48: WHERE THE ONLY RELEVANCE OF THE BUDGET IS TO SET AN UPPER LIMIT ON RECOVERABLE COSTS: THE ESCALATING COSTS OF “METAPHORICAL WARFARE”
We are returning to the judgment of Costs Judge Leonard in Reed v Woodward Property Developments Ltd & Anor [2023] EWHC 36 (SCCO) to look at two other aspects of the case. The first relates to the relevance of the costs…
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