COST BITES 47: PROVING (OR DISPROVING) THAT THERE WAS A VALID RETAINER: APPORTIONING RECOVERABLE COSTS BETWEEN TWO DEFENDANTS
In Reed v Woodward Property Developments Ltd & Anor [2023] EWHC 36 (SCCO) Costs Judge Leonard considered a number of issues. Firstly the court’s approach when there was a dispute as to whether there was a valid retainer. Secondly questions…
COST BITES 46: NON PARTY COSTS ORDER MADE AGAINST DIRECTOR OF INSOLVENT COMPANY
In Asprey Capital Ltd v Rediresi Ltd & Anor (Re Non-Party Costs Order) [2023] EWHC 28 (Comm) Patricia Robertson KC (sitting as a Deputy High Court Judge) made a non-party costs order against a director of the defendant company. THE…
COST BITES 45: COURT REJECTS DEFENDANT’S APPLICATION THAT CASE INVOLVING A CHILD BE BUDGETED: ACCEPTS CLAIMANT’S APPLICATION FOR AN INTERIM PAYMENT ON COSTS – BUT NOT THE AMOUNT CLAIMED
In CXS v Maidstone and Tunbridge Wells NHS Trust [2023] EWHC 14 (KB) Master Cook considered issues relating to costs in a case concerning a child where the matter is unlikely to be resolved for many years. The Master rejected…
NON-PARTY COSTS ORDER AGAINST EXPERT WITNESS SET ASIDE ON APPEAL: THE FACT THAT AN EXPERT’S CONCLUSIONS CAN BE CRITICISED DOES NOT AMOUNT TO A FLAGRANT DISREGARD OF THEIR DUTY
I am grateful to barrister Nadia Whittaker for sending me a copy of the judgment of Mr Justice Sweeting in Robinson -v- Liverpool Hospitals NHS Trust and Mercier [2023] EWHC 21 (KB), a copy of the judgment is available here. …
THE COSTS JUDGE OVER YOUR SHOULDER 2023 – MAXIMISING RECOVERY: WEBINAR 6th APRIL 2023
The recent judgment in Deutsche Bank AG v Sebastian Holdings Inc [2023] EWHC 9 (SCCO) illustrates the problems that receiving parties can cause for themselves. The claimant’s bill was reduced by 31% (£16.9 million) despite the assessment being on an indemnity…
COST BITES 44: THE COSTS OF ASSESSMENT: THE RELEVANCE OF CONDUCT, ARE PART 36 OFFERS SIGNIFICANT?
We are returning to the judgment of Mrs Justice Stacey in TRX v Southampton Football Club [2022] EWHC 3392 (KB). The judge made some observations in relation to the costs of the assessment process. In particular the interplay of CPR 47.20…
COST BITES 43: CLAIMANT’S COSTS INCURRED BEFORE CFA SIGNED WERE RECOVERABLE
In TRX v Southampton Football Club [2022] EWHC 3392 (KB) Mrs Justice Stacey considered a number of issues relating to costs. One of those was the question of whether pre-CFA costs were recoverable. This required a close consideration of the…
COST BITES 15: DEPARTING FROM THE GUIDELINE RATES FOR SPECIALIST WORK DONE OUTSIDE LONDON
In Lappet Manufacturing Company Ltd & Anor v Rassam & Ors [2022] EWHC 2158 (Ch) Mr Justice Adam Johnson allowed a higher hourly rate for a solicitor working outside London. The rate allowed, for a Nottingham firm, was £350 an…
A CLIENT DOES NOT OWE A “DUTY OF GOOD FAITH” TO A SOLICITOR ACTING UNDER A CONDITIONAL FEE AGREEMENT
In Candey Ltd v Bosheh & Anor [2022] EWCA Civ 1103 Lord Justice Coulson rejected an argument that a client, who has entered into a conditional fee agreement with a solicitor, owed a duty of good faith to that solicitor. …
PART 36 & COSTS: DEFENDANT COULD NOT SHOW INJUSTICE WHEN IT ACCEPTED A PART 36 OFFER OUT OF TIME: “PART 36 IS INTENDED TO BE A TWO-WAY STRAIGHT AND NARROW HIGHWAY”
In Holly Wright (& others) -v- Birmingham City Council District Judge Baldwin (sitting as Regional Costs Judge)* rejected an attempt by a defendant to obtain its costs where it accepted the claimants’ Part 36 offers late. The judge held that…
A COURT, ON A SOLICITOR AND OWN CLIENT ASSESSMENT, CANNOT CONSIDER ASSERTIONS OF UNDUE INFLUENCE OR ECONOMIC DURESS: DEFENDANT’S SUCCESSFUL APPEAL
In Lisa Jones v Richard Slade And Company Ltd [2022] EWHC 1968 (QB) Mr Justice Johnson overturned a decision that the court, on a Solicitors Act assessment, can determine issues of undue influence or economic duress. The judge held that…
COST BITES 13: A SUMMARY ASSESSMENT OF COSTS IN ACTION: TOO MANY LAWYERS, NO NEED FOR A QC
In Lenkor Energy Trading DMCC v Puri [2022] EWHC 1958 (Comm) the court carried out a summary assessment of the defendant’s costs, the grounds for the reductions are instructive. They show the grounds on which costs are reduced on assessment….
COST BITES 12: A DEFENDANT WHO IS NOT A PARTY TO AN APPEAL CAN STILL BE ORDERED TO PAY THE COSTS OF THAT APPEAL
In Turner & Ors v Thomas & Anor (Costs) [2022] EWHC 1944 (Ch) Mr Justice Zacaroli considered the appropriate principles to be applied as to costs when a defendant was not a party to an appeal made by a co-defendant….
COST BITES 11: INTEREST ON COSTS: JUDGE FINDS IT APPROPRIATE TO BACKDATE INTEREST
In Vitol SA v Genser Energy Ghana Ltd [2022] EWHC 1955 (Comm) Ms Lesley Anderson QC (sitting as a Deputy High Court Judge) considered whether interest should be payable on costs from a date before judgment. She held that interest…
COST BITES 10: COURT OF APPEAL UNHAPPY AT £730,000 BILL FOR ONE DAY APPEAL: HOURLY RATES ABOVE GUIDELINES HAVE TO BE JUSTIFIED, COUNSEL’S FEES MUST BE REASONABLE AND PROPORTIONATE
In Athena Capital Fund SICAV-FIS SCA & Ors v Secretariat of State for the Holy See (Costs) [2022] EWCA Civ 1061 the Court of Appeal were concerned about the level of costs being claimed in a one day appeal. The…
COST BITES 9: FARES FAIR: IN JUDICIAL REVIEW PROCEEDINGS YOU CAN HAVE A “SCORE DRAW” AND EACH SIDE GETS NO COSTS
In United Trade Action Group Ltd, R (On the Application Of) v Transport for London & Anor [2022] EWCA Civ 1026 the Court of Appeal upheld a decision that there be no order for costs between the parties in judicial…
COST BITES 8: CENTRAL LONDON HOURLY RATES: THE RATE DEPENDS ON THE LITIGATION NOT THE LITIGATOR
In Brake & Anor v Guy & Ors [2022] EWHC 1911 (Ch) HHJ Paul Matthews (sitting as a High Court Judge). Considered the appropriate hourly rate to be applied on an application. Although costs were being assessed on an indemnity…
CLAIMANT’S PART 36 OFFER WHICH INVOLVED A 1.15% DISCOUNT WAS A GENUINE ONE:EVEN A NARROW MARGIN MEANS DEFENDANTS FACE NORMAL PART 36 CONSEQUENCES
In Omya UK Ltd v Andrews Excavations Ltd & Anor [2022] EWHC 1882 (TCC) Mr Roger Ter Haar QC, sitting as a Deputy High Court Judge, found that a claimant’s offer that was some 1.15% less than the sum awarded…
COST BITES 7: INDEMNITY COSTS WHEN A CLAIMANT HAS TRIED TO HAVE A SECOND BITE OF THE LITIGATION CHERRY
In Tinkler v Esken Ltd (Costs) [2022] EWHC 1802 (Ch) Mr Justice Leech ordered indemnity costs against a claimant who, in essence, attempted to relitigate a case he had lost on previously. “A principal difference between an order for…
CLAIMANT LIED ABOUT “JOB OFFER”: FOUND TO BE FUNDAMENTALLY DISHONEST AND LOSES £130,000
I am grateful to Aled Morris from Horwich Farrelly for sending me a transcript of the judgment of HHJ Murdock in Hawkins -v- Holmes (County Court at Leicester, 1st April 2022). It is a case where the court found the…
COST BITES 6: GETTING A SCHEDULE OF COSTS TO COURT
The claimant’s failure to provide costs schedules, and eventual compliance, can be seen in a series of judgments by HHJ Emma Kelly in cases brought by North Warwickshire Borough Council. The cases move from non-compliance to attempted compliance and eventual…
RESPONDENTS TO AN APPLICATION FOR PERMISSION TO APPEAL: YOU SHOULD HAVE SIMPLY WRITTEN A LETTER AND SAVED YOURSELVES £67,000
In over three decades of writing about civil procedure I cannot recall any cases about costs following a permission to appeal hearing. There are now two cases this week. In Kerseviciene v Quadri & Anor (Costs) [2022] EWHC 1757 (QB)…
FIXED COSTS OUSTED WHEN THE PARTIES AGREE COSTS ARE TO BE THE SUBJECT OF A DETAILED ASSESSMENT: COURT OF APPEAL DECISION TODAY
In the judgment today in Doyle -v- M&D Foundations & Building Services Limited [2022] EWCA CIV 927 the Court of Appeal found that it was possible for parties to contract out of the fixed costs provisions of the protocols. THE…
COST BITES 5: COSTS IN THE CASE APPROPRIATE ONCE A CLAIMANT HAD DISCLOSED DOCUMENTS IN RELATION TO SECURITY FOR COSTS
In Chiswick International Holdings Ltd v Oakvest Ltd & Ors [2022] EWHC 799 (Comm) HHJ Pelling QC (sitting as a High Court Judge) considered the appropriate order for costs when a party had offered security in an application for security…
A BIT MORE ABOUT HOURLY RATES: TWO NATIONS?
This morning we looked at the case of EVX v Smith [2022] EWHC 1607 (SCCO), a case about hourly rates. The costs judge making an observation that £315 – £320 an hour was the appropriate rate for a Grade A fee…
HOURLY RATES AGREED WITH LITIGATION FRIEND ARE SUBJECT TO REVIEW: THE APPROPRIATE PROCEDURE WHEN A SHORTFALL IN RECOVERABLE COSTS IS SOUGHT FROM A CLAIMANT
In EVX v Smith [2022] EWHC 1607 (SCCO) Costs Judge Brown held that the hourly rates charged by a solicitor to their own client are subject to review when the court is considering the amount that the claimant should pay…
THE COSTS JUDGE OVER YOUR SHOULDER 2: THERE WAS NO MISCONDUCT BY THE CLAIMANTS, HOWEVER THE COSTS OF ARGUING ABOUT CONDUCT WERE NOT ALLOWED
In Balaj & Ors v Secretary of State for the Home Department [2022] EWHC 1627 (SCCO) Costs Judge James considered, and rejected, the defendant’s arguments that the claimant’s conduct should lead to costs being reduced. However the costs of the…
COSTS INCURRED PRIOR TO DEFENDANT’S BREACH ARE RECOVERABLE: THEY WERE “INCIDENTAL” TO THE APPLICATION
In Gee, Re The Estate of [2022] EWHC 1590 (Ch) HHJ Paul Matthews (sitting as a High Court Judge) considered an argument that costs incurred by the claimant in an attempt to prevent the breach of a court order, and…
THE COSTS JUDGE OVER YOUR SHOULDER: A WORKING EXAMPLE: THE DETAILED ASSESSMENT OF COSTS: HOURS, SUPERVISION AND THE USE OF COUNSEL
The judgment of Master Rowley in Lyle & Anor v Bedborough & Anor [2022] EWHC 1628 (SCCO) gives an insight into the process of detailed assessment of costs. The Master considered the complexity of the case, the use of counsel…
THE REDUCTION OF A SUCCESSFUL CLAIMANT’S COSTS BECAUSE OF CONDUCT: RELEVANT CALDERBANK OFFERS CONSIDERED: RECOVERABLE COSTS REDUCED BY 15% AND 60%
In Mathieu v Hinds & Anor (No. 2: Costs) [2022] EWHC 1624 (QB) Mrs Justice Hill reduced a claimant’s recoverable costs. An initial 10% reduction was made because of the pursuit of a claim for provisional damages which was not…
SUMMARY ASSESSMENT OF COSTS: THERE WAS PROCEDURAL UNFAIRNESS IN THE ASSESSMENT PROCESS, HOWEVER THE RESULT WOULD HAVE BEEN THE SAME
In Golubovich v Golubovich [2022] EWHC 1605 (Ch) Mr Justice Edwin Johnson refused a defendant permission to appeal from the decision made in a summary assessment of costs. There had been procedural unfairness in the way that the assessment was…
ED SHEERAN: SONGWRITING, CONDUCT AND COSTS: THE WINNING PARTY GETS PAID: THE COURT WOULD NOT TURN REALITY ON ITS HEAD
In Sheeran & Ors v Chokri & Ors [2022] EWHC 1528 (Ch) Mr Justice Zacaroli rejected an argument that conduct during an action should lead to costs being disallowed. “This, however, is to turn reality on its head. The…
COSTS, INTEREST ON COSTS AND COSTS ON COSTS: SEE HOW THEY GROW: £65,000 BECOMES £185,000
There is a short passage in the judgment of HHJ Paul Matthews (sitting as a High Court Judge) in Blacklion Law LLP v Amira Nature Foods Ltd & Anor [2022] EWHC 1500 (Ch) that shows one of the dangers of…
THE RULES ABOUT WITNESS STATEMENTS “SHOULD NOT BE USED AS A WEAPON FOR THE PURPOSE OF BATTERING THE OPPOSITION”: COMMONSENSE MUST BE USED: APPLICANT ORDERED TO PAY 75% OF THE RESPONDENTS’ COSTS ON THE INDEMNITY BASIS
In Curtiss & Ors v Zurich Insurance Plc & Anor (Costs) [2022] EWHC 1514 (TCC) HHJ Keyser QC (sitting as a Judge of the High Court) ordered the applicant to pay 75% the respondents’ costs on the indemnity basis. The…
INDEMNITY COSTS NOT AWARDED WHEN A DEFENDANT REFUSED TO MEDIATE: HIGH COURT DECISION TODAY
In Richards & Anor v Speechly Bircham Llp & Anor (Consequential Matters) [2022] EWHC 1512 (Comm) HHJ Russen (sitting as a High Court judge) refused an application for indemnity costs made on the basis that the defendants had refused mediation….
SUMMARY ASSESSMENT OF COSTS: HOURLY RATE TOO HIGH AND LAWYERS SHOULD LEARN TO DELEGATE
In Rushbrooke UK Ltd v 4 Designs Concept Ltd [2022] EWHC 1416 (Ch) HHJ Paul Matthews (sitting as a Judge of the High Court) considered the costs to be paid to a successful respondent. The judge did not allow the…
“HOW IS IT THAT THESE EXORBITANT COSTS HAVE BEEN INCURRED?”: A JUDICIAL LAMENT: FINANCIAL REMEDY LITIGATION HEADING FOR RITZ HOTEL STATUS
In Gallagher v Gallagher (No.2) (Financial Remedies) [2022] EWFC 53 Mr Justice Mostyn, expressed his concern about the costs incurred in a financial remedies case. This is far from being the first time there has been judicial lament about the…
RESPONDENTS CANNOT BE ORDERED TO PAY THE COSTS OF OTHER RESPONDENTS WHEN THERE WAS NO DISPUTE BETWEEN THEM
In Elser v Sands & Ors [2022] EWHC 1419 (Ch) Chief ICC Judge Briggs held that the court did not have power to order one respondent’s costs to be paid by other respondents. There was nothing in dispute between them…
AN INSURANCE PREMIUM WAS PROPERLY INCURRED: JUDGE, ON APPEAL, ALLOWS ATE COSTS TO BE DEDUCTED FROM CHILD’S DAMAGES
I am grateful to Express Solicitors for sending me a copy of a judgment of X -v- H&M Hennes, made by HHJ Lethem on 21st April 2022. It relates to the recoverability of an insurance premium between solicitor and client. …
THE COSTS JUDGE OVER YOUR SHOULDER: THINKING ABOUT DETAILED ASSESSMENT OF COSTS FROM THE OUTSET: WEBINAR 20th JULY 2022
The assessment of costs is a crucial stage in litigation. Detailed assessment usually takes place after attempts at settlement of costs have failed and there are some major differences between the parties. Relatively few litigators have experience of attending a…
“IT WAS UNNECESSARY FOR MATTERS TO BE DEALT WITH SO EXPENSIVELY”: ANOTHER COMMENT ON LACK OF FOCUS IN THE COMMERCIAL COURT
For the second time today I am writing about judicial comments on profligacy in the Commercial Court. This time Mr Justice Andrew Baker in Invest Bank PSC v El-Husseini & Ors [2022] EWHC 894 (Comm). “Even in the context…
WHY A SHORT WITNESS STATEMENT CAN BE MORE COSTLY THAN A LONG ONE? CONDUCT, COSTS, PAYMENTS ON ACCOUNT: AN (UNSUCCESSFUL) APPLICATION TO AMEND THAT COULD COST £1 MILLION
In PJSC National Bank Trust & Anor v Mints & Ors [2022] EWHC 1132 (Comm) Mr Justice Foxton considered issues relating to payment of costs after the claimants had been unsuccessful in an application to amend the Particulars of Claim. …
HOW COSTS HAVE CHANGED SINCE THE WORLD WAS YOUNG: SOLICITOR’S APPEAL AGAINST A REFUSAL TO ORDER A STAY AND SECURITY FOR COSTS DISMISSED: APPEAL FOR AN ORDER THAT SOLICITORS REPLY TO PART 18 QUESTIONS ALLOWED
In the judgment today in Edwards (& others) -v- Slater and Gordon UK Limited [2022] EWHC 1091 (QB) Mr Justice Ritchie disallowed the defendant’s appeal in relation to issues relating to disclosure, funding and security for costs. He allowed the…
PART 36: JUDGES SHOULD NOT LET THEIR HEARTS RULE THEIR HEADS: CLAIMANT ACCEPTING AN OFFER LATE FACES FULL COSTS CONSEQUENCES THAT FLOW
In the judgment in MRA -v- The Education Fellowship Limited [2022] EWHC 1069 (QB). Master McCloud held that it was not unjust for the usual principles in relation to costs to apply following a claimant’s late acceptance of a defendant’s…
PART 36 BENEFITS PAID TO A SUCCESSFUL CLAIMANT: THE ISSUES CONSIDERED: IT WAS NOT UNJUST FOR THE USUAL PART 36 CONSEQUENCES TO APPLY
We are returning to the judgment in Ashford Borough Council & Anor v Wilson [2022] EWHC 988 (QB) Darryl Allen QC, sitting as a High Court judge. The earlier post looked at the issue of whether the defendant was bound by…
RELIEF FROM SANCTIONS: NOT ALL BAD REASONS FOR DEFAULT ARE EQUALLY BAD: A PARTY CANNOT ASSERT PREJUDICE BY BEING SILENT
In EXN v East Lancashire Hospitals NHS Trust & Anor [2022] EWHC 872 (QB) Mr Justice Turner allowed an appeal where a District Judge had refused to grant relief from sanctions. The judgment is particularly interesting in that it notes…
EXCESSIVE COSTS INCURRED IN ARGUING ABOUT COSTS: A PARTY OBTAINING RELIEF FROM SANCTIONS WAS CORRECTLY ORDERED TO PAY THE COSTS OF THE APPLICATION: “RULES EXIST FOR A REASON”
In Swivel UK Ltd v Tecnolumen GmbH & Anor [2022] EWHC 825 (Ch) Mr Justice Marcus Smith upheld the decision of a Master that a party that had obtained relief from sanctions should pay the costs of the application. It…
THE COURT SHOULD ASSESS COSTS SUMMARILY NOW: BUT THEY ARE SUBJECT TO A “SIGNIFICANT HAIRCUT”
One of the things I regularly do on this blog is to post judgments relating to the summary assessment of costs. These are not readily available elsewhere and this type of judgment is very popular with readers. The judgment of…
JUDGE VARIES ORDER SO SUMMARY ASSESSMENT OF COSTS REPLACES DETAILED ASSESSMENT: COSTS SUMMARILY ASSESSED AT £7,250,000
In Pipia v Bgeo Group Ltd [2022] EWHC 846 (Comm) Mr Justice Henshaw took the unusual step of replacing an order for detailed assessment with an order for a summary assessment and then assessing the costs. THE CASE The defendant…
DEFENDANTS HAVE TO PAY COSTS OF ATE PREMIUM: DEEMED ORDER FOR COSTS FOLLOWING ACCEPTANCE OF PART 36 OFFER INCLUDES THE COSTS THE ATE PREMIUM
In Dance v East Kent University Hospitals NHS Foundation Trust & Ors [2022] EWHC B9 (Costs) Costs Judge Leonard considered two ingenious arguments where the defendants attempted to avoid paying the claimant’s ATE premium. This involved consideration of the deemed…
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