COURT OF APPEAL DECISION ON CONSTRUCTION OF PART 36: IT IS NOT A PART 36 OFFER JUST BECAUSE THE PARTIES SAY SO: OFFERS CAN ONLY BE ASSESSED BY REFERENCE TO THE PLEADINGS
In Hertel & Anor v Saunders & Anor [2018] EWCA Civ 1831 the Court of Appeal upheld a decision that an offer made was not a valid Part 36 offer. It was held that a Part 36 offer had to be…
CLAIMANT OBTAINS INDEMNITY COSTS AFTER DEFENDANT’S LATE ACCEPTANCE OF PART 36 OFFER: “BIMBLING” AND OTHER TALES OF MODERN LITIGATION
On the Leigh Day website there is a link to a judgment of H.H.J Alan Gore QC (sitting as a High Court Judge) in the case of Holmes -v- West London Mental Health NHS Turst (29th June 2018). The judge…
FIXED COSTS CONTINUE WHEN DEFENDANT ACCEPTS A PART 36 OFFER OUT OF TIME: COURT OF APPEAL DECISION TODAY
I am grateful to Matthew Hoe, solicitor, at Taylor Rose TTKW for sending me a copy of the Court of Appeal judgment today in Hislop -v- Perde [2018] EWCA Civ 1726. KEY POINTS The Court of Appeal held that, in…
WHEN LITIGATION LAWYERS SPLIT UP: THE FALL OUT CONTINUES: A SPLIT TRIAL WAS FAR FROM WISE…
In FPH Law (a firm) v Brown (t/a Integrum Law) [2018] EWCA Civ 1629 the Court of Appeal dismissed the defendant’s appeal against a finding on a preliminary issue. There was a potential cause of action between two firms of solicitors…
COSTS BUDGETING AND PROPORTIONALITY: JUST THE TICKET: JUDGE REJECTS COMPARISON WITH DEFENDANT’S BUDGET WHEN IT “JUST DOES NOT MAKE SENSE”
The issue of costs budgeting and proportionality was considered by Mr Justice Birss in Red and White Services Ltd v Phil Anslow Ltd & Anor [2018] EWHC 1699 (Ch). The judge was prepared to take a robust approach to proportionality. There…
APPEALS, QOCS AND SET OFF: MORE ON THE DECISION IN CARTWRIGHT -V- VENDUCT: COURT OF APPEAL ALLOWED SET OFF OF APPEAL COSTS
I am grateful to Gary Brankin and Jeremy Rae of BC Legal for providing more information about the decision in Cartwright v Venduct Engineering Ltd [2018] EWCA Civ 1654, the court of Appeal decision on QOCS considered yesterday. This is a point on…
TOMLIN ORDER PREVENTS “SUCCESSFUL” DEFENDANT RECOVERING COSTS FROM CLAIMANT’S DAMAGES IN A QOCS CASE: BUT CHOOSE YOUR DEFENDANTS CAREFULLY
In Cartwright v Venduct Engineering Ltd [2018] EWCA Civ 1654 the Court of Appeal considered issues relating to the recoverability of costs in multi-defendant cases where the claimant would normally have the protection of qualified one-way costs shifting. The case provides…
SOLICITOR AND CLIENT COSTS: A PRACTICAL GUIDE – BOOK REVIEW: BUY IT AND READ IT: £30 WORTH SPENDING
Disputes about costs between lawyers and their (former) clients can be “challenging”. Indeed they can be vitriolic and expensive. The lawyer thinking “We’ve done the work” – the client thinking “how much” and “I got nothing out of it, why…
PROPORTIONAL COSTS IN A FATAL CASE: THE MATTERS THAT CAN RECOVERED
The facts in Powell & Ors v The Chief Constable of West Midlands Police [2018] EWHC B12 (Costs) are quite extraordinary. This judgment, on the issue of costs, adds to the material relating to proportionality. Equally important is the fact that…
COSTS: PHONE HACKING AND REPUTATION: PROPORTIONALITY IS NOT JUST ABOUT THE SUMS AT STAKE
In Various Claimants (In Wave 1 of the Mirror Newspapers Hacking Litigation) v MGN Ltd [2018] EWHC B13 (Costs) Master Gordon-Saker addressed the elements of “proportionality”. “The rule does not prevent the recovery of costs in an amount greater than the…
COSTS & PROPORTIONALITY: ITS NOT ALL ABOUT THE MONEY: DEFENDANT’S COSTS WERE NOT DISPROPORTIONAL
Proportionality was the central issue in the judgment of Master Leonard in Arjomandkhah v Nasrouallahi [2018] EWHC B11 (Costs). The Master rejected the claimant’s argument that the defendant’s costs (roughly one-third of the claimant’s costs budget) was disproportional. “In contrast to…
HOURLY RATES AND COMPLEX CASES: MASTER MAY HAVE APPLIED THE WRONG TEST BUT CAME TO THE RIGHT RESULT
In JXA v Kettering General Hospital NHS Foundation Trust [2018] EWHC 1747 (QB) Mr Justice Goss rejected an appeal in relation to hourly rates of the claimant’s solicitor in a high value clinical negligence case. THE CASE The claimant had been…
BRIEF FEE NOT TO BE ABATED BECAUSE OF VERY LATE SETTLEMENT: HIGH COURT DECISION TODAY
In Hugh Cartwright & Amin v Devoy-Williams & Anor [2018] EWHC 1692 (QB) Mrs Justice Nicola Davies MBE (sitting with an assessor) overturned a decision of a Master where counsel’s brief fee was reduced because the matter had settled the afternoon…
CORONER ORDERED TO PAY COSTS: CAMDEN RESIDENTS WILL PICK UP THE BILL…
In Adath Yisroel Burial Society & Anor, R (on the application of) v HM Senior Coroner for Inner North London [2018] EWHC 1286 (Admin) the Divisional Court held that a coroner, who was unsuccessful in defending an application for judicial review,…
FIFTH BIRTHDAY REVIEW 9: COURT FEES, FEE REMISSION AND LIMITATION STANDSTILL AGREEMENTS
This is the penultimate post looking back at key series of the past five years. I am here revisiting two aspects of the law relating to court fees. Firstly the series on mitigating the effect of the (ridiculous) increase in…
FIFTH BIRTHDAY REVIEW 6: PROPORTIONALITY: THE POSTS AND 12 PRACTICAL STEPS
The series “Proportionality & Survival for Litigators” started in December 2014. At the outset I said it could be a long-running and difficult series – it is definitely still ongoing. It remains the case that little written is on proportionality, …
PART 36: COURT OF APPEAL SETS ASIDE ORDER THAT CLAIMANT SHOULD PAY COSTS FROM EARLIER DATE FOLLOWING LATE ACCEPTANCE OF AN OFFER
In the decision today in Tuson v Murphy [2018] EWCA Civ 1461 the Court of Appeal allowed an appeal against an order that a claimant accepting a Part 36 offer late should pay costs from a much earlier date than that…
THE ASSESSMENT OF COSTS: LIABILITY FOR COSTS LAWYER’S ACTS: THE COURT OF APPEAL DECISION IN GEMPRIDE -v- BAMRAH
Yesterday I gave a short summary of the decision in Gempride Ltd v Bamrah & Anor [2018] EWCA Civ 1367. This is a case worth looking at in detail. The substantive case settled for £50,000 shortly after issue. The question of…
CFA IS STILL VALID EVEN IF IT NAMES THE WRONG DEFENDANT: COURT OF APPEAL DECISION
In Malone v Birmingham Community NHS Trust [2018] EWCA Civ 1376 the Court of Appeal held that a Conditional Fee Agreement was valid even though it named the wrong defendant. The judgment contains important observations on how conditional fee agreements should…
ORDER FOR COSTS TO BE ASSESSED DOES NOT OUST FIXED COSTS: CIRCUIT JUDGE DECISION
I am grateful to Matthew Hoe of Taylor-Rose for sending me a copy of the decision of His Honour Judge Yelton in Bratek -v-Clark-Drain Limited (County Court at Cambridge 30th April 2018). A copy is available here Bratek v Clark-Drain Ltd…
AVOIDING THE TERMS OF A CONSENT ORDER: A CASE THAT HAS A LOT OF LESSONS FOR SOLICITORS: WHY A CONSENT ORDER MAY NOT BE WORTH THE PAPER ITS WRITTEN ON
The judgment in Riordan & Ors v Moon Beevor Solicitors (a firm) [2018] EWHC 1452 (QB) gives an interesting insight into the fallout from litigation – where the disgruntled client blames the solicitors. There are important lessons here about the drafting…
JUDGES CANNOT MAGICALLY ACQUIRE INFORMATION BY OSMOSIS: THE DUTY ON PARTIES TO ENCAPSULATE LONG-RUNNING LITIGATION
In SC BTA Bank v Ablyazov & Anor [2018] EWHC 1368 (Comm) Patrica Robertson QC (sitting as a High Court Judge) reminded practitioners that judges have no magical powers. When a long-running case on a “grand scale” comes before the court…
DEFENDANT NOT ENTITLED TO INDEMNITY COSTS IF PART 36 OFFER NOT BEATEN: SUCCESS ON COSTS APPEAL HAS MINUSCULE IMPACT ON OVERALL COSTS OF APPEAL
In Shalaby v London North West Healthcare NHS Trust [2018] EWCA Civ 1323 the Court of Appeal upheld the principle that a defendant is not entitled to indemnity costs simply because a claimant has not beaten a Part 36 offer. It…
STAGE 3 ISSUE FEES: COURT REPAYS OVERPAID FEES: GOOD NEWS FROM LIVERPOOL
In January this year I blogged about correspondence I had received from Jon Heath, a solicitor at Levins, in Liverpool about the courts overcharging on Stage 3 issue fees. Yesterday I received an email from Jon telling me that the…
COURT OF APPEAL STATES THAT NO ORDER FOR COSTS IS THE APPROPRIATE ORDER: “THIS IS A MELANCHOLY TALE”
In Sirketi v Kupeli & Ors [2018] EWCA Civ 1264 the Court of Appeal overturned an order for costs in favour of the claimants with an order for no costs. It was, as Lord Justice Hickinbottom observed “a melancholy tale”. The…
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…
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