QOCS: WHAT IS A CLAIM FOR “DAMAGES FOR PERSONAL INJURIES”? JUDGMENT HERE – APPEAL PENDING
NB THIS JUDGMENT WAS OVERTURNED ON APPEAL. SEE THE POST HERE. I am grateful to barrister Claire Darwin for sending me a copy of the judgment of His Honour Judge Luba in Brown -v- The Commissioner of Police for the…
60% OFF AT MORRISONS: SUCCESSFUL CLAIMANTS ONLY RECOVER 40% OF THEIR COSTS: HIGH COURT DECISION
In Various Claimants v WM Morrison Supermarkets Plc [2018] EWHC 1123 Mr Justice Langstaff held that the claimants’ conduct of the claim led to unnecessary costs being incurred. Consequentially the defendant was ordered to pay the claimants 40% of the…
REDUCTION IN VALUE OF CLAIM AND REDUCTION IN HOURLY RATES DID NOT REPRESENT A GOOD REASON TO DEPART FROM THE BUDGET
In Jallow v Ministry of Defence [2018] EWHC B7 (Costs) Master Rowley rejected an argument that the settlement of a claim for a sum less than that claimed and a reduction in hourly rates for incurred costs represented “good reasons”…
IDENTIFYING THE SUCCESSFUL PARTY AND MAKING A COSTS ORDER: PARTIALLY SUCCESSFUL CLAIMANT’S APPEAL ALLOWED: DEFENDANT ORDERED TO PAY 60% OF THE COSTS.
In Wall v Munday [2018] EWHC 879 (Ch) HHJ Paul Matthews (sitting as a High Court Judge) allowed an appeal in relation to costs. The judge at first instance had ordered the claimant to pay 80% of the defendant’s costs. That…
CIVIL PROCEDURE – BACK TO BASICS 6: NON-DISCLOSURE OF A PART 36 OFFER
This post is caused by some comments on Twitter this evening. A surprising number of cases where parties have, by one method or other, disclosed a Part 36 offer. This has been done by including the offers in the trial…
THE JUDGMENT IN ALI -v- CHANNEL 5 3: WHY A DEFENDANT SHOULD ALWAYS FILE A COSTS BUDGET: A REMINDER OF THE RULES
The final part of this trilogy on the judgment today in Ali & Anor v Channel 5 Broadcast Ltd [2018] EWHC 840 (Ch) shows why the defendant will be kicking themselves for not filing a costs budget. Some defendants are fairly…
THE JUDGMENT IN ALI -V- CHANNEL 5 2: CLAIMANTS FAILED TO BEAT PART 36 OFFER, NO GOOD REASON TO DEPART FROM NORMAL COSTS CONSEQUENCES
This is the second post about the decision on costs in Ali & Anor v Channel 5 Broadcast Ltd [2018] EWHC 840 (Ch). Here we look at the issue relating to Part 36. The defendant had made a Part 36 offer….
THE JUDGMENT IN ALI -V- CHANNEL 5 1: THE ALLEGED FAILURE TO MEDIATE
The judgment on costs issues today in Ali & Anor v Channel 5 Broadcast Ltd [2018] EWHC 840 (Ch) covers a number of issues. I am dealing with each distinct issue in a separate post. The first deals with costs following…
THE CLEVELAND BRIDGE CASE: A SECOND CROSSING: PAYMENTS ON ACCOUNT OF COSTS
Judgments dealing with payments on account of costs are rare, but illuminating. Particularly when the costs budget is taken as the starting point. There is a detailed consideration of this issue in Cleveland Bridge UK Ltd v Sarens (UK) Ltd [2018]…
LIEN, THE SOLICITOR AND THE INSURER: NO SAFE HAVEN FOR DEFENDANTS
The judgment of the Supreme Court this morning in Gavin Edmondson Solicitors Ltd v Haven Insurance Company Ltd [2018] UKSC 21. It confirms that solicitors are entitled to costs in cases where the defendant’s insurer, knowing of the solicitor’s involvement, settled…
MAKING UNWARRANTED ASSERTIONS LEADS TO INDEMNITY COSTS – AGAINST A SECRETARY OF STATE
There are numerous cases where the courts have considered conduct that leads to indemnity costs. In Secretary of State for the Home Department v Barry [2018] EWCA Civ 790 the Court of Appeal found that the Home Department’s conduct of an…
THE NEW ELECTRONIC BILL OF COSTS: ONE DAY TO GO: USEFUL LINKS AND GUIDANCE
The electronic bill of costs will be compulsory from the 6th April. Here are some useful links to help you prepare and survive. I will add to these if anyone has any particular recommendations. PRACTICE DIRECTIONS The Practice Direction…
CLAIMANTS COSTS REDUCED BECAUSE OF FAILURE ON CERTAIN POINTS: 15% AND 50% REDUCTION
In Civilians v Ministry of Defence [2018] EWHC 690 (QB) Mr Justice Leggatt reduced the costs of the successful party due to the fact that the claimants failed on some issues. THE CASE The claimants had been successful in an action…
WHEN THE JUDGE IS ENTITLED NOT TO DECIDE ON THE EVIDENCE: PLUS THE IMPORTANT ISSUE OF CONDUCT AND COSTS
The Court of Appeal decision today in Constandas v Lysandrou & Ors [2018] EWCA Civ 613 illustrates two distinct issues: The position when a judge is unable to make a finding on the evidence. What conduct can lead to a successful…
THE SECRET BARRISTER AND CIVIL LITIGATORS 2: THE ESSENTIAL ROLE OF THE LITIGATION SOLICITOR
I am back to my review of the book that everyone is reading, the Secret Barrister’s “Stories of the Law and how its Broken”. I’ve already have people ask me not to give too much away – “don’t spoil the plot”. I…
THE TIME FOR CHALLENGING A BILL HAS PROBABLY LONG GONE: AN IMPORTANT FACTOR IN REFUSING AN APPLICATION FOR DELIVERY UP
There is a battle (or a series of skirmishes) going on at present in relation to solicitors charging success fees to their clients in personal injury cases. This has led to numerous applications to the courts for disclosure. The former…
ROUND ONE: WHAT IS A”WIN” UNDER A CFA? ROUND TWO: THE ASSIGNMENT OF CFAS: FORMER CLIENT DOES NOT SCORE A KNOCKOUT BLOW
In Warren v Hill Dickinson LLP [2018] EWHC B6 (Costs) Master Leonard considered what was meant by the term “win” in a conditional fee agreement. He also considered whether a CFA was properly assigned. The former client (the claimant in this…
CHANGING FROM LEGAL AID TO A CFA: JUDGMENT IN THE COURT OF APPEAL: DEFENDANTS’ APPEAL ALLOWED: ADDITIONAL LIABILITIES NOT RECOVERABLE
I am grateful to Sean Linley of PIC costings for sending me a copy of the Court of Appeal judgement in Surrey -v- Barnet and Chase Farm Hospitals NHS Trust [2018] EWCA Civ 451. This is the latest in the…
LATE SERVICE OF NOTICE OF FUNDING AND RELIEF FROM SANCTIONS: THIS DOES NOT END WELL FOR THE CLAIMANT: COURT OF APPEAL DECISION
In the judgment today in Springer v University Hospitals of Leicester NHS Trust [2018] EWCA Civ 436 the Court of Appeal upheld a decision that refused to give relief from sanctions following late service of notice of funding. The case shows…
HOURLY RATES, INCURRED COSTS AND THE COST BUDGET: AGREED BUDGETS HAVE NO SPECIAL STATUS: HOURLY RATES NOT A GOOD REASON TO DEPART FROM THE BUDGET
The judgment of Master Nagalingam in Nash v Ministry of Defence [2018] EWHC B4 (Costs) covers several issues relating to costs budgets. The Master found that a reduction in hourly rates in relation to incurred costs did not lead to any…
PROVING THINGS 87: FAILURE TO PROVE BASIC ELEMENTS MEANT THAT THE FULL PREMIUM WAS NOT RECOVERED
I am grateful to Dominic Regan for sending me a copy of the judgment of District Judge Baldwin in Nicolaou -v- Cass (Liverpool CC 1st November 2017). The claimant failed to recover a substantial figure for a stage 2 premium…
COSTS ON APPEAL – TWO ISSUES: COSTS AWARDED WHERE THERE WAS NO SCHEDULE BELOW: INDEMNITY COSTS WHEN A PARTY HAD MADE AN OFFER TO COMPROMISE AN APPEAL
An earlier post dealt with the substantive decision in Cross-v- Black Bull (Doncaster) Limited* (Sheffield County Court 21st December 2017). A short supplementary judgment dealt with two issues as to costs. KEY POINTS The fact that a party did not have a…
WHEN QOCS APPLY: COURT OF APPEAL DECISION: THE SWINGS AND THE ROUNDABOUTS
In Corstorphine (An Infant) v Liverpool City Council [2018] EWCA Civ 270 the Court of Appeal considered an important issue in relation to Qualified One Costs Shifting. What order should be made when the claimant has QOCS protection against some of…
PAYMENTS ON ACCOUNT OF COSTS: YOU CAN’T ALWAYS GET WHAT YOU WANT: THE COURT’S APPROACH WHEN THE COSTS SCHEDULES ARE “EYE-WATERING”
In Dana Gas PJSC v Dana Gas Sukuk Ltd & Ors [2018] EWHC 332 (Comm) Lord Justice Leggatt considered the principles relating to payments on account of costs. In particular the approach the court should take when there were weighty commercial…
OVERTURNING THE SUMMARY ASSESSMENT OF COSTS FOR A COMMITTAL: THE AMOUNTS INVOLVED WERE “DISPROPORTIONATE AND WRONG
The previous post looked at the Court of Appeal decision today in Solanki v Intercity Telecom Ltd [2018] EWCA Civ 101. A third element of that judgment was the defendant’s successful appeal against the costs of a committal application. The Court held…
WANT TO WORK HARD, WIN AND STILL NOT GET PAID II? LAWYERS COME TO GRIEF IN THE COURT OF APPEAL: REVIEW YOUR RETAINER CAREFULLY
In Radford & Anor v Frade & Ors [2018] EWCA Civ 119 the Court of Appeal upheld the early decisions that lawyers, who worked outside the terms of their retainer under a CFA, could not recover costs from the unsuccessful party….
THE HOURLY RATE FOR INCURRED COSTS: WHY IT IS IMPORTANT THAT THESE ARE SET OUT CORRECTLY: HIGHER HOURLY RATES THAN THE RETAINER SHOULD START THE ALARM
I am grateful to Benjamin Petrecz, Associate and Costs Lawyer at Keoghs LLP, for bringing my attention to a decision of Master Rowley in Tucker -v- Griffiths & Hampshire Hospitals NHS Foundation Trust (19/05/17) in relation to costs budgeting. A…
THE COSTS OF MEDIATION AND THE COSTS BUDGET: AVOIDING A POSSIBLE TRAP
I am grateful to Alan Mendham for writing to point out a possible trap in relation to costs budgeting and mediation. Alan points out that disputes can arise as to whether mediation is included in the phase for settlement…
COSTS: THE COSTS OF ATTENDING AN INQUEST: THE APPROPRIATE APPROACH
In Douglas v Ministry of Justice & Anor [2018] EWHC B2 (Costs) Master Leonard considered the issue of the recoverability of costs of attending an inquest. There is a highly nuanced approach. The issues raised are of more general relevance in…
WHEN A PARTY CHANGES ITS FUNDING ARRANGEMENTS PART WAY THROUGH: A CHANGE FROM DBA TO CFA DID NOT PREVENT THE CLAIMANT RECOVERING FULL COSTS
The decision of Master James in Dial Partners LLP & Anor v Eastern Airways International Ltd & Ors [2018] EWHC B1 (Costs) raises an interesting set of issues when a party changes the basis of its funding part-way through a case,…
PROPORTIONALITY, CASES AND COMMENT: A ROUND UP
The post yesterday on the Brian May case and proportionality highlighted the fact that this is still a major issue in litigation. It is a good time to set out the posts on this blog on proportionality to date. PREVIOUS…
THE BRIAN MAY COSTS CASE: TRANSCRIPT NOW AVAILABLE: PROPORTIONALITY APPEAL DID NOT BITE THE DUST
Thanks to the good offices of the ACL the judgment on appeal of May -v- Wavell Group Ltd is now available here. The claimant’s appeal on the issue of proportionality was allowed. The figure of £35,000 plus vat for costs…
PUTTING THE “COSTS OF BUDGETING” IN THE BUDGET: A DEBATE
Yesterday I wrote about the issues posed by the fact that the costs of budgeting (the 1% and 2% allowed for Form H and budgeting) now cannot be assessed at the budget stage. I suggested the budgeting order should read…
THE COSTS OF COSTS BUDGETING CANNOT BE ASSESSED UNTIL THE END OF THE CASE – A QUICK REMINDER: THE PRACTICAL CONSEQUENCES
The early part of the year may be a good time to remind people that it is now not possible to put the 1% and 2% figures in the costs budget at the end of the budgeting process. CHANGE IN…
REVISING COSTS BUDGETS: “SIGNIFICANT DEVELOPMENTS”, INCURRED COSTS AND APPLICATIONS MADE DURING THE COURSE OF A TRIAL
In Sharp v Blank & Ors [2017] EWHC 3390 (Ch) Chief Master Marsh considered an application by the defendant to revise its costs budget. The judgment contains important observations about the practicalities involved in costs budgeting. There is also a detailed…
LIMITATION AMNESTIES: AN INTERESTING CASE
There is an interesting case comment on the DACbeachcroft website in relation to limitation amnesties. Andrews v South Tees Hospitals NHS Foundation Trust The comment is by Joe Walton. It reports a case where a claimant sought an extension of…
CIVIL LITIGATION REVIEW OF 2017 (IV): COSTS, BUDGETS, PROCEDURAL GAMES AND MISCONDUCT ON ASSESSMENT
This year has been a surprisingly muted year for costs cases, particularly in the higher courts. Several judgments were expected, however they rarely proved to be definitive or wide ranging. 2018 may be the year that some issues are resolved….
UNDERPAYMENT OF COURT FEES AND STRIKING OUT: CLAIMANT SUCCESSFUL ON APPEAL:
Exactly a year ago today His Honour Judge Robinson gave judgment in a case relating to under-payment the Court fees , see Wiseman -v- Martson. Judge Robinson gave judgment this morning in a case that covered similar ground. He allowed an…
THE COSTS OF PROVISIONAL ASSESSMENT: THE CAP ALWAYS FITS
In W Portsmouth and Company Ltd v Lowin [2017] EWCA Civ 2172 the Court of Appeal held that the cap on the costs of provisional assessment continues to apply even when a receiving party has beaten their own Part 36 offer…
COURT OF APPEAL STATES INDEMNITY COSTS SHOULD HAVE BEEN AWARDED: SHOULD HAVE BEEN MORE BULLISH IN BRADFORD…
It is unusual for the Court of Appeal to interfere with a discretionary order in relation to costs. It is even more unusual for the court to replace an order for costs on the standard basis with indemnity costs. This…
DENTON PRINCIPLES LEAD TO APPLICATION FOR WASTED COSTS BEING STRUCK OUT: THE CONTINUANCE OF THE APPLICATION WAS DISPROPORTIONATE
The Denton principles were applied by the Administrative Court in Haigh v Westminster Magistrates Court & Or [2017] EWHC 3197 (Admin) when striking out an application for wasted costs. “It must not be forgotten that these are satellite proceedings, adjectival to…
CLAIMANT ACCEPTING PART 36 OFFER LATE: COURT ORDERED INDEMNITY COSTS FOR THE PERIOD BETWEEN EXPIRY AND ACCEPTANCE
In Lokhova v Longmuir [2017] EWHC 3152 (QB) Mr Justice Warby considered the court’s discretion when a claimant accepted a defendant’s Part 36 offer late. KEY POINTS A court had jurisdiction to vary the normal order for costs when a claimant…
ASSIGNMENT OF CFAs: IT CAN BE DONE
In Budana v The Leeds Teaching Hospitals NHS Trust & Anor [2017] EWCA Civ 1980 the Court of Appeal decided that a CFA can be assigned from one solicitor to another. THE CASE The claimant was injured. She entered into a…
CHANGES TO THE RULES IN RELATION TO THE COSTS OF COSTS MANAGEMENT: COMPARE AND CONTRAST
There has been a change to the rules governing the costs of costs management. This was introduced by the 93rd Update on Practice Direction Amendments. The Ministry of Justice have confirmed that these have come into force. * THE NEW RULE:…
DEFENDANT ORDERED TO PAY AFTER THE EVENT PREMIUM OF £533,017.13 : EYE-WATERING DECISION FOR INSURERS
In Percy v Anderson-Young [2017] EWHC 2712 (QB) Mr Justice Martin Spencer held that an after the event premium of £533,107.13 was recoverable. There was no sympathy for the defendant. “… in my judgment, any sympathy for the Defendant here…
CLINICAL NEGLIGENCE: RECOVERABILITY OF PREMIUMS & PROPORTIONALITY: COURT OF APPEAL DECISION TODAY
In Peterborough & Stamford Hospitals NHS Trust v McMenemy & Ors [2017] EWCA Civ 1941 the Court of Appeal considered the position in relation to the payment of insurance premiums in clinical negligence cases. The Court decided that it is appropriate…
RELIEF FROM SANCTIONS NOT NEEDED: A DECISION “POUR ENCOURAGER LES AUTRES”: A SOLICITOR CAN RELY ON A LETTER FROM THE COURT
In his judgment today in Freeborn & Anor v Marcal (t/a Dan Marcal Architects) [2017] EWHC 3046 (TCC) Mr Justice Coulson had some telling observations on whether a party needed relief from sanctions and whether relief should be granted. He held…
AFTER THE EVENT INSURANCE DOES NOT PROHIBIT AN ORDER FOR SECURITY FOR COSTS
In Premier Motorauctions Ltd & Anor v Pricewaterhousecoopers LLP & Anor [2017] EWCA Civ 1872 the Court of Appeal decided that the existence of an after the event insurance policy to cover legal expenses did not prohibit a court from ordering…
PRO BONO COSTS ORDERS: NOT JUST FOR CHRISTMAS
I had an email this morning from Sue Nash asking me to publicise the ability of the court to make pro bono costs orders. Here is a reminder. It is important that those representing a party pro bono is aware…
SERVICE BY ALTERNATIVE MEANS, THE ABSENT DEFENDANT, DEFAULT JUDGMENT AND COSTS: ABSENCE OF DEFENDANT DOESN’T CAUSE THE COURT TO MISS A GEAR
In Pirtek (UK) Ltd v Jackson [2017] EWHC 2834 (QB) Mr Justice Warby considered several procedural issues. These are of wider interest, particularly issues relating to the method of service, proceeding in the defendant’s absence, summary judgment and costs. …
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