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…
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…
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