COVID REPEATS 25: COSTS WHEN A CLAIMANT RECEIVES NOMINAL DAMAGES: YOU’VE TURNED DOWN £1.5 MILLION, RECEIVED £2 & NOW HAVE TO FACE THE CONSEQUENCES
Failing to beat a Part 36 offer is always painful. Failing to beat an offer of £1.5 million and receiving £2 is, most probably, even more painful. Here we look at the second part of the case discussed yesterday. In Marathon…
UNSUCCESSFUL DEFENDANTS ORDERED TO PAY SUCCESSFUL DEFENDANT’S COSTS: THE RELEVANT FACTORS CONSIDERED
One of the most difficult decisions in litigation, particularly personal injury litigation, can be deciding which defendant to sue. This can be a problem with occupier’s liability or construction site cases where potential defendants are blaming each other. A defendant…
CORONAVIRUS CATCH UP 2: COSTS AND BUDGETING
Here there are short snippets of cases relating to costs decision in the past month or so which may have been displaced by the commentary on COVID-19. Rippon Patel And French LLP v Mowlam [2020] EWHC 1079 (QB) An…
LITIGATION, CASHFLOW & COVID 1: DETAILED ASSESSMENTS CAN STILL GO ON (& HERE’S HOW…)
In the first in a series of litigation and cashflow during the COVID crisis I am recommending that you read a post by my colleague Kevin Latham – How to Make Remote Detailed Assessments Work. LATHAM’S LAWS Kevin sets out…
CLAIMANT BEATS OWN PART 36 OFFER: DEFENDANT ORDERED TO PAY INDEMNITY COSTS FOR AN EXTENDED PERIOD BECAUSE OF ITS CONDUCT
I am grateful to Sam Hayman from Bolt Burdon Kemp for drawing my attention to the decision today of Mr Justice Griffiths in DSN v Blackpool Football Club Ltd [2020] EWHC 670 (QB). The defendant was ordered to pay indemnity…
MAKING SERIOUS SAVINGS ON TRAIN TRAVEL: ADVICE FROM A WELL TRAVELLED PROFESSOR : WHY FIRST CLASS IS SOMETIMES CHEAPER
Last September there was a crowd-sourced post on this blog about the best means of travel and accommodation for lawyers. This is particular interest to litigators who who to travel for court hearings or meetings. When Professor Dominic Regan contacted…
NO PROTECTIVE COSTS ORDER FOR APPELLANT IN ACCOMMODATION APPEAL: COURT OF APPEAL DECISION TODAY
In the judgment in Swift v Carpenter [2020] EWCA Civ 165 today the Court of Appeal rejected the claimant’s application for a Protected Costs Order. There are important observations on (i) the scope of Protected Costs Orders; (ii) the exercise…
THE SET OFF OF COSTS AND QOCS: A HIGH COURT DECISION: THE COURT HAS A DISCRETION TO SET OFF COSTS – BUT ON THE FACTS OF THIS CASE WOULD NOT DO SO
In the judgment given this morning in Faulkner -v- Secretary of State for Energy and Industrial Strategy [2020] EWHC 296 (QB) Mr Justice Turner considered the issue of whether a defendant, ordered to pay costs when failing in an application…
FIXED COSTS OUSTED BY AGREEMENT: INSURER HAS TO STAND BY THE DEAL IT STRUCK
I am grateful to barrister Andrew Roy for sending me a copy of the decision of District Judge Baldwin (sitting as a Regional Costs Judge) in Turner -v- Cole (16th December 2019). It is a case where the judge held…
MARGARET THATCHER, BETAMAX VIDEOS, THE MACARENA AND CIVIL PROCEDURE (ECHOES OF COMPLAINTS FROM “DOWN UNDER”)
The judgment of Lord Justice Coulson in Lejonvarn v Burgess & Anor [2020] EWCA Civ 114 commenting on a case “with echoes of the bad old days” shares some sentiments with the judgment of Lee J in the Federal Court of…
LATE COSTS BUDGET: RELIEF FROM SANCTIONS GRANTED: DEFENDANT DROPPED THE BALL BUT THIS WAS FORGIVABLE
In Manchester Shipping Ltd v Balfour Shipping Ltd & Anor [2020] EWHC 164 (Comm) Lionel Persey QC (sitting as a Deputy High Court Judge) granted relief from sanctions to a defendant who had filed a costs budget late. The case…
THE COSTS OF PRE-ACTION DISCLOSURE: IS IT WORTH THE RISK? £40,000 SPENT IN COSTS FOR DOCUMENTS THAT WERE AVAILABLE UNDER GDPR
I am looking again at the decision in Hussain v Medical Defence Union & Anor [2020] EWHC 157 (QB). This time I am looking at the order in relation to costs. The application cost in excess of £40,000 in relation to…
CIVIL PROCEDURE AND COSTS: BLOG AND ARTICLES ROUND UP – JANUARY 2020
Links and articles to blog posts and articles available online in January 2020 Costs Costs Barrister Conditional fee agreements and contentious business agreements Association for Costs Lawyers Oversight regulator praises CLSB’s “considerable progress” Association for Costs Lawyers Offer acceptanc… Enjoying this post? Become…
A BAD DAY IN COURT FOR THE CLAIMANT’S SOLICITORS: COMPLICATED, OH SO COMPLICATED CFA AGREEMENTS: BREACHES OF THE INDEMNITY PRINCIPLE AND MISCONDUCT ON ASSESSMENT: AGREEMENTS “SO DARKLY PENNED AS TO BE INCOMPREHENSIBLE”
The judgment of Deputy Master Friston in Anthony v Collins [2020] EWHC B14 (Costs) makes for interesting reading. A highly complex series of conditional fee agreements were held to be in breach of the indemnity principle. There are important lessons…
ARGUMENT THAT FIXED COSTS APPLIED GETS A BUMPY RIDE: PROTOCOL DOES NOT APPLY TO HIGHWAYS CASE
I am grateful to barrister James Bentley for drawing my attention to the judgment in Bateman v Devon County Council (HHJ Mitchell, Plymouth County Court, 2nd September 2019) in which it was decided that fixed costs did not apply to a…
CIVIL PROCEDURE BACK TO BASICS 77: THE COURT MUST KNOW HOW MUCH AN EXPERT WILL COST: CPR 35.4(2)
CPR 35.4(2) is often overlooked. This rule imposes a duty on a party applying for permission to rely on expert evidence to inform the court how much the expert is likely to cost. This is often clear at the costs…
PERSONAL INJURY CASES WHERE THE DEFENDANT IS NOT INSURED AND HAS NO ASSETS: LOOK TO THE CLAIMANT’S OWN INSURANCE POLICY
Periodically I repeat the second ever post on this blog. This related to the (surprising to many) fact that it may be possible for a claimant with an unsatisfied judgment to recover damages from their own domestic insurance policy. …
CIVIL PROCEDURE AND COSTS: BLOG AND ARTICLES ROUND UP – DECEMBER 2019
Links and articles to blog posts and articles available online from December 2019. Costs Costs Barrister Cash flow and catastrophic personal injury litigation Costs Barrister Fixed costs and translation fees Association for Costs Lawyers Court can order costs in foreign…
2019 AND CIVIL PROCEDURE – A ROUND UP OF THE ROUND UPS: WHAT TO FRET ABOUT AND WHAT NOT TO FRET ABOUT…
There have been a series of annual reviews on key topics throughout December. To round off the year it seemed a good idea to provide a reminder of them all and put the links in one place 2019 AND CIVIL…
2019 AND CIVIL PROCEDURE THE YEAR IN REVIEW: COMMITTAL PROCEEDINGS: “THE KANGAROO COURTS OF THE JUSTICE SYSTEM”
In January I wrote “I am starting to lose count of the number of times the Court of Appeal has overturned decisions committing people to prison because of very basic and fundamental failures of procedure. It is as though all…
2019 AND CIVIL PROCEDURE THE YEAR IN REVIEW: COSTS BUDGETING
This year has been relatively quiet on the costs budgeting front. There have been some rule changes and two cases which highlight how difficult it is to appeal a costs budgeting decision. JULY:AN OFFER AS TO COSTS DOES NOT BECOME…
APPEALING A PROVISIONAL ASSESSMENT IS NOT A JAMBOREE: APPELLANT HAS TO STATE WHAT THEY ARE APPEALING AND HEARING IS CONFINED TO THOSE MATTERS
In PME v The Scout Association [2019] EWHC 3421 (QB) Mr Justice Stewart upheld the decision of Master Leonard in relation to the scope of an appeal from a costs officer. “The consequences of the Appellant’s case are wholly undesirable….
COSTS AGAINST A NON-PARTY: THE PRINCIPLES CONSIDERED AND APPLIED
I am grateful to Colm Nugent for sending me a copy of the decision of Veronique Buehrlen Q.C in Rubiera -v- Building & Handyman Group Ltd (13th December 2019). It relates to a non-part costs order being made against a…
CIVIL PROCEDURE BACK TO BASICS 75: COSTS BUDGETING: COUNSEL’S BRIEF FEE NOW PART OF THE TRIAL PREPARATION PHASE
Judging from the reaction of my opponent (and the judge) at a CCMC I attended today a change in the rules introduced on 1st October 2019 could benefit from wider publication. On the 1st October 2019 Counsel’s brief fee is…
CLAIMANT DISCONTINUES – BUT NO ORDER FOR COSTS: THE PRINCIPLES CONSIDERED
In Sheinberg v Abdon & Ors [2019] EWHC 3220 (Ch) Master Clark decided that there should be no order for costs after a claimant discontinued his case. The conduct of the defendants was a highly relevant factor. “The amount involved…
GETTING AWAY FROM THE PROTOCOL: MEANING OF “HARM”, “VULNERABLE ADULT” AND THE REASONABLE VALUATION OF A CLAIM AT MORE THAN £25,000
In Scott v Ministry of Justice [2019] EWHC B13 (Costs) Deputy Master Friston considered whether a case fell outside the fixed costs regime of the Employers Liability Protocol as a result of the identity of an assailant. It transpired that…
ARGUE A WEAK CASE ON EACH AND EVERY POINT, GET INDEMNITY COSTS AWARDED AGAINST YOU
In Suez Fortune Investments Ltd & Anor v Talbot Underwriting Ltd & Ors [2019] EWHC 3300 (Comm) Mr Justice Teare held that a claimant, who had pursued a weak case in a robust manner, should pay indemnity costs. There is…
PART 36: A SUCCESSFUL LITIGANT CAN BE BULLISH: CLAIMANT BEATS ITS OWN PART 36 OFFER AND THERE WAS NOTHING UNJUST IN THE DEFENDANT PAYING THE PRICE
In Kivells Ltd v Torridge District Council [2019] EWHC 3210 (TCC) the claimant beat its own Part 36 offer (by a fair margin). HHJ Russen QC rejected the defendant’s argument that it would be unjust to apply the normal Part…
A CASE THAT SHOULD BE READ BY EVERY LAWYER WHO BILLS CLIENTS: CLAIM £84,000 – GET £8,000: PROVIDE ADEQUATE ESTIMATES OF COSTS OR ELSE…
The judgment of Master Leonard Dunbar v Virgo Consultancy Services Ltd [2019] EWHC B12 (Costs) provides an object lesson as to why lawyers must give a full and proper estimate of costs to their clients. The defendant solicitor sought £84,ooo…
WHY FAILING IN A SUMMARY JUDGMENT APPLICATION CAN BE EXPENSIVE: (£1,015,722 – EXPENSIVE)
In BTI 2014 LLC v Pricewaterhousecoopers LLP & Anor [2019] EWHC 3219 (Ch) Mr Justice Fancourt considered the appropriate order for costs when a defendant failed in an application for summary judgment. The defendants were ordered to pay the costs…
IS A CONDITIONAL FEE AGREEMENT A CONTENTIOUS BUSINESS AGREEMENT? WELL, IT DEPENDS… (& IT HAS CONSEQUENCES)
In Healys LLP v Partridge & Anor [2019] EWHC 2471 (Ch) Kelyn Bacon QC, sitting as a Deputy High Court Judge, considered the issue of whether a conditional fee agreement was a contentious business agreement. This has practical consequences in…
UNWARRANTED FRAUD ALLEGATION LEADS TO INDEMNITY COSTS BEING AWARDED
In Natixis SA v Marex Financial & Ors [2019] EWHC 2549 (Comm) an award of indemnity costs was made against a party who had alleged fraud all the way up to closing submissions. It highlights the dangers of pleading fraud…
FIXED COSTS NOT OVERTURNED BY THE TERMS OF AN AMBIGUOUS PART 36 OFFER: COURT OF APPEAL DECISION TODAY
In the judgment today in Ho v Adelekun [2019] EWCA Civ 1988 the Court of Appeal held that fixed costs still applied to a case where an offer of settlement did not expressly refer to costs being fixed. “…parties who…
AN UNSUCCESSFUL APPEAL ON A COSTS BUDGETING DECISION: SHOULD A QC BE ALLOWED – OR IS THAT A LEADING QUESTION?
The case of Easteye Ltd v Malhotra Property Investments Ltd & Ors [2019] EWHC 2820 (Ch) is unusual in that it is an appeal against a costs budgeting decision. Nugee J refused the claimant’s appeal against the District Judge’s decision…
CLAIMANT BEATS ITS OWN PART 36 OFFER: DEFENDANT PAYS THE PRICE: OFFER BEATEN BY £4,800 LEADS TO DEFENDANT PAYING AN ADDITIONAL £65,000 – & INDEMNITY COSTS, & ADDITIONAL INTEREST…
In Hochtief (UK) Construction Ltd & Anor v Atkins Ltd [2019] EWHC 3028 (TCC) Mrs Justice O’Farrell considered the consequences of a claimant being its own Part 36 offer. The claimant beat its own offer by a small amount but…
STAGE 3 PROCEEDINGS AND LATE SERVICE OF EVIDENCE: COURT OF APPEAL DECISION
The judgment of the Court of Appeal yesterday in Wickes Building Supplies Ltd v Blair [2019] EWCA Civ 1934 is an important one in relation to late service of evidence and Stage 3 of the Protocol. It shows the importance…
APPLYING FOR DISPENSATION FROM COURT FEES: TWO DIFFERENT CASES
I am grateful to my colleague Paul Hughes for sending me a copy of the judgment of District Judge Jenkinson in the case of Stone -v- Allianz Insurance PLC where Paul acted for the defendant. This, and the case of…
RELIEF FROM SANCTIONS: CANDOUR FROM THE APPLICANT AND NO EVIDENCE FROM THE DEFENDANT TO PROVE PREJUDICE
There is a report of a case where relief from sanctions was granted in Anglia Autoflow North America LLC and Another v Anglia Autoflow Ltd [2019] Costs LR 155. One thing that marks this case is the total candour from the…
THE RIDICULOUS RULES ABOUT PLEADING MITIGATION OF LOSS: DOES THE RULES COMMITTEE JUST NOT LISTEN (OR JUST NOT CARE)?
The previous post in this case on the judgment in Pepe’s Piri Piri Ltd & Anor v Muhammad Ali Junaid Food Trends Ltd (Now Dissolved) & Ors[2019] EWHC 2769 (QB) highlights the problems posed by one of the most ridiculous rules…
CLAIMANT’S LATE ACCEPTANCE OF PART 36 OFFER: UNCERTAINTY OF FUTURE OUTCOME NOT GROUNDS FOR MAKING A DIFFERENT COSTS ORDER
The judgment of Mrs Justice Lambert in Campbell -v- Ministry of Defence [2019] EWHC 2121 (QB) emphasises the difficulties for a claimant who has accepted a Part 36 offer late. The claimant had to bear the usual costs consequences and…
TRAWLING THROUGH THE CPR: FIXED COSTS CONSIDERED BY THE COURT OF APPEAL: COUNSEL’S FEES INCLUDED IN REGIME: CONSTRUING THE CPR AS A WHOLE
I am grateful to barrister Sarah Robson for sending me a copy of the judgment of the Court of Appeal today in Aldred -v- Cham [2019] EWCA Civ 1780. It is one of those occasions where the Court of Appeal…
CONDITIONAL FEE AGREEMENT IS ENFORCEABLE AFTER DEATH: HIGH COURT JUDGMENT TODAY
In Higgins & Co Lawyers Ltd -v- Evans [2019] EWHC 2809 (QB) Mr Justice Pushpinder Saini overturned a decision that a conditional fee agreement was not enforceable after death. THE CASE The deceased had signed a CFA agreement with the…
COURT HAS JURISDICTION TO MAKE AN INTERIM ORDER AS TO COSTS AFTER CLAIMANT HAS ACCEPTED A PART 36 OFFER: COURT OF APPEAL DECISION TODAY
In Global Assets Advisory Services Ltd & Anor v Grandlane Developments Ltd & Ors [2019] EWCA Civ 1764 the Court of Appeal confirmed that the court can make an interim order for costs after a claimant has accepted a Part…
A CRI DE COEUR FOR MORE MONEY WON’T GET YOU AN INTERIM PAYMENT ON ACCOUNT OF COSTS: MASTER EMPHASISES THE NEED FOR HARD EVIDENCE
In RXK v Hampshire Hospitals NHS Foundation Trust [2019] EWHC 2751 (QB) Master Cook made some important observations about the quality of evidence needed to obtain an interim order for costs in an ongoing case. (The judgment in X -v-…
QOCS IN “MIXED “CASES: THE COURT OF APPEAL SPEAKS
In the judgment today in Brown v Commissioner of Police of the Metropolis & Anor [2019] EWCA Civ 1724 the Court of Appeal considered the issue of QOCS in “mixed cases”. The judgment requires careful reading. Generally speaking all personal…
THE TRIAL JUDGE SHOULD HAVE FOUND THAT THE CLAIMANT WAS FUNDAMENTALLY DISHONEST: INADEQUATE DISCLOSURE LEADS TO QOCS BEING DISAPPLIED
In Haider v DSM Demolition Ltd [2019] EWHC 2712 (QB) Mr Justice Julian Knowles refused a claimant’s appeal against a finding that the defendant was not negligent. He granted the defendant relief from sanctions and allowed an appeal against a…
DISTRICT JUDGE SHOULD NOT HAVE “PARTIALLY” RECUSED THEMSELVES: THINGS THAT SHOULD NEVER HAVE BEEN IN A WITNESS STATEMENT: A VERY INTERESTING ASSESSMENT OF COSTS…
I am grateful to Simon Fisher from DWF for providing me a copy of the judgment in Akers -v- Kirlkland [2019] EWHC 2176 (QB) Mr Justice Waksman discussed, in detail, the circumstances in which a judge should recuse themselves and…
SUMMARY ASSESSMENT AND HOURLY RATES: “SOLICITORS PROVIDING SUCH SKILL AND EXPERTISE ARE ENTITLED TO CHARGE THE MARKET HOURLY RATE FOR THEIR AREA OF PRACTICE”
In Ohpen Operations UK Ltd v Invesco Fund Managers Ltd [2019] EWHC 2504 (TCC) Mrs Justice O’Farrell carried out a summary assessment of costs. She also had something to say in relation to hourly rates. There is a succinct review…
WHO SACKED WHO? HIGH COURT DECISION AS TO WHETHER THE CLIENT OR THE SOLICITOR ENDED THE RETAINER
In Walsh v Greystone Financial Services Ltd [2019] EWHC 2573 (Ch) Mr Justice Nugee had to decide whether it was the client or the solicitor who ended the retainer. THE CASE At the end of a trial at which the…
COURT OF APPEAL REFUSES APPEAL AGAINST ORDER FOR INDEMNITY COSTS: PARTIES WHO ARE JOINED TO A SPECULATIVE ENTERPRISE IN LITIGATION SHOULD EVALUATE THEIR POSITION WITH CARE
In Ford & Anor v Bennett & Anor [2019] EWCA Civ 1604 the Court of Appeal dismissed an appeal against a trial judge’s decision to award indemnity costs. The judgment contains a lesson to “additional parties” to litigation. “Parties who…
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