COSTS BUDGETING AND PROPORTIONALITY TEST APPLY – EVEN IN A CASE FOR £350 MILLION
in Sharp & Ors v Blank & Ors [2017] EWHC 141 (Ch) Mr Justice Nugee considered the issue of proportionality in a case where £350 million was at stake. Mr Justice Nugee decided that the requirement for costs budgeting, and proportionality,…
COSTS AFTER DISCONTINUANCE VARIED: CLAIMANT TO PAY INDEMNITY NOT STANDARD COSTS: TWO RIGHT FEET BROUGHT THE WRONG ACTION
When a claimant discontinues an action there is an automatic provision that the claimant pay the defendant’s costs (CPR 38.6). In Two Right Feet Ltd v National Westminster Bank Plc & Ors [2017] EWHC 1745 (Ch) Ms Sara Cockerill Q.C. made…
BNM -v- MGN: A DECISION OF LIMITED PROPORTION
The Court of Appeal decision in BNM v MGN Ltd [2017] EWCA Civ 1767 has relatively limited impact. In particular it says little, if anything, about the proportionality itself. THE CASE The Court of Appeal were deciding an appeal following an…
COSTS AFTER LATE ACCEPTANCE OF A DEFENDANT’S PART 36 OFFER: CLAIM £21.5 MILLION, ACCEPT £125,000: THE IMPORTANCE OF CLEAR VISION ON DAMAGES FROM THE OUTSET
In Optical Express Ltd & Ors v Associated Newspapers Ltd [2017] EWHC 2707 (QB) Mr Justice Warby considered arguments in relation to costs after late acceptance of a Part 36 offer. On the facts of that case he ordered that the…
PRACTISING “DEFENSIVE LITIGATION” : ESSENTIAL CHECKLISTS GATHERED TOGETHER
What many (if not most) of the posts on this blog make clear is that there is now precious little room for error in civil procedure. To operate effectively, and profitably, we have to develop systems of “defensive litigation”. That…
IF YOU WANT YOUR COSTS ASSESSED IMMEDIATELY AFTER AN APPEAL OR INTERLOCUTORY HEARING THEN YOU HAVE TO ASK : OTHERWISE YOU’LL JUST HAVE TO WAIT
Does a successful litigant on an interlocutory issue have a right to have their costs assessed immediately? That was the question addressed by the Court of Appeal in Khaira & Ors v Shergill & Ors [2017] EWCA Civ 1687 . This…
ESTIMATES OF COSTS AND THE FINAL BILL: SOLICITOR AND OWN CLIENT COSTS: CLIENT (PARTIALLY) SUCCESSFUL ON APPEAL
In Harrison v Eversheds Llp [2017] EWHC 2594 (QB) Mrs Justice Slade allowed, in party, a client’s appeal in relation to estimates of costs and final costs. It is a case that emphasises the importance of giving full information in relation…
SECTION 33 DISCRETION UPHELD ON APPEAL: DEFENDANT ORDERED TO PAY COSTS OF LIMITATION HEARING
In Mossa v Wise [2017] EWHC 2608 (QB) Mrs Justice Yip upheld a Master’s decision under Section 33 of the Limitation Act 1980. The Master’s decision that the defendant pay the costs of the issue of limitation was also upheld. THE…
“YOU ARE ONLY HERE BECAUSE YOU HAVE A CFA”: THERE IS NOT MUCH USE IN ATTACKING THE SOURCE OF YOUR OPPONENT’S FUNDING
In an earlier post we looked the judge’s views in relation to witness credibility in Riva Properties Ltd & Ors v Foster + Partners Ltd [2017] EWHC 2574 (TCC). Here we look at the judge’s view on the defendant’s attack on the…
LATE ACCEPTANCE OF PART 36 OFFER DID NOT TAKE THE HEART OUT OF THE USUAL RULES AS TO COSTS: PART 36.13 CONSIDERED IN DETAIL: CLAIMANT SURVIVES A HEATED ATTACK
I am grateful to Thomas Riis-Bristow from Irwin Mitchell solicitors for sending me a copy of the judgment of District Judge Truman in Knibbs -v-Heart of England NHS Foundation Trust (23/6/2017). It is an interesting (and important) consideration of…
THE BANK OF IRELAND CASE ROUND TWO: APPROPRIATE SUMS FOR AN INTERIM PAYMENT ON ACCOUNT OF COSTS: INDEMNITY COSTS ORDERED BECAUSE OF CONDUCT OF EXPERT
In an earlier post we looked at the judgment in Bank of Ireland -v- Watts Group PLC [2017]EWHC 1667 (TCC) where Mr Justice Coulson was particularly excoriating about the claimant’s expert. Having lost the case the bank had to pay the…
FAILURE TO PAY INTERLOCUTORY COSTS LEADS TO PEREMPTORY ORDER BEING MADE: PAY UP OR BE STRUCK OUT
In Michael Wilson & Partners Ltd v Sinclair & Ors [2017] EWHC 2424 (Comm) Sir Richard Field (sitting as a Deputy Judge of the High Court) made a peremptory order following the defendants’ failure to pay interlocutory costs. The relevant defendants…
PROPORTIONALITY – A LITIGATOR’S SURVIVAL GUIDE V – A ROUND UP: 12 KEY POINTS TO TAKE YOU INTO OCTOBER (AND BEYOND)
The issue of “proportionality” is central to contemporary litigation. However it is rarely examined in detail and rarely discussed. Attempts to analyse how proportionality can be achieved are even rarer. For the fifth in this (slow burning) series I review…
COST BUDGETING: THE CASES AND POSTS IN ONE PLACE
There is a specific section on relief from sanctions on this blog which links to all the posts and related cases on CPR 3.9. Here I am starting to do the same for costs budgeting. Here, however, I aim to…
BUDGETS, ASSUMPTIONS AND AGREEMENT: GUIDANCE FROM THE BENCH: PRECEDENT R WILL HELP YOU OUT IF YOU EVER WANT TO DEPART FROM THE BUDGET
I have already paid homage to the Solicitors Journal. The articles in the last edition show how much it contributed . Given the inability of the SJ to draw attention to itself I draw everyone’s attention to the article by…
ORDER FOR PAYMENT ON ACCOUNT DOES NOT NEED TO BE MADE AT THE HEARING ITSELF
The judgment of Master Matthews in Ashman v Thomas [2016] EWHC 1810 (Ch) has only recently arrived on BAILLI. It contains several important practice points in relation to payments on account of costs. THE CASE After the trial of a preliminary…
SENSIBLE CONCESSIONS PLAY NO PART IN THE ORDERING OF INDEMNITY COSTS: ORDER MADE ON MERIT
I have written about the substantive judgment in Imperial Chemical Industries Limited -v- Merit Merrell Technology Limited [2017] EWHC 1763 (TCC) several times already. There is a shorter judgment on costs at Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd [2017] EWHC…
IS THE BUDGET DEFINITIVE ON ASSESSMENT? CASE IDENTIFIED: TWO TRAINS OF THOUGHT CONTINUE
The position of the status of the budget and hourly rates is in flux. Michael Fletcher earlier posted an article reporting an assessment he took part in where District Judge Lumb (sitting as the Regional Costs Judge in Birmingham) expressly disagreed…
COSTS ORDERS AGAINST NON-PARTIES: THE RELEVANT PRINCIPLES CONSIDERED AND APPLIED
In Montpelier Business Reorganisation Ltd v Jones & Ors [2017] EWHC 2273 (QB) His Honour Judge Saffman (sitting as a judge of the High Court) considered the issue of costs against non-parties. The principles relating to non-party order were considered and…
CLAIMANT’S PART 36 OFFERS AND LATE ACCEPTANCE: SOME JUDGES WILL, SOME JUDGES WON’T…
There have been numerous cases which have considered the appropriate approach of the courts when there is late acceptance by a defendant of a claimant’s Part 36 offer. Some of these have been considered on this blog, but by…
CHAMPERTY AND MAINTENANCE CONSIDERED: THE DEFENDANT WAS CRYING WOLF
In Casehub Ltd v Wolf Cola Ltd [2017] EWHC 1169 (Ch) Stuart Isaacs QC (sitting as a Deputy High Court Judge) rejected an argument that a claimant bringing assigned claims amounted to champerty or maintenance. It is rare for these issues…
YOU’VE SPENT £625,000 IN COSTS AND GOT NO FURTHER FORWARD: COSTS AFTER UNSUCCESSFUL SUMMARY JUDGMENT APPLICATION
In Burnden Holdings (UK) Ltd & Anor v Fielding & Anor [2017] EWHC 2118 (Ch) His Honour Judge Hodge QC (sitting as a Judge of the High Court) considered the issue of costs after the claimants’ unsuccessful application for summary judgment….
CLINICAL NEGLIGENCE AND INSURANCE COSTS: POLICY OF £10,000 WAS BOTH REASONABLE AND PROPORTIONAL: HIGH COURT DECISION
In Mitchell v Gilling-Smith [2017] EWHC B18 (Costs) Master Leonard held that a £10,000 premium incurred in a clinical negligence case was reasonable and proportional. It also highlights the importance of a paying party bringing actual evidence to court if they…
IS THE BUDGET DEFINITIVE ON ASSESSMENT? MORE CATS, MORE PIGEONS: THERE ARE NOW TWO TRAINS OF THOUGHT ON THE HOURLY RATE
Earlier this month I blogged on the decision in RNB v London Borough of Newham [2017] EWHC B15 (Costs). Deputy Master Campbell decided that the hourly rate could be challenged at the assessment stage even if the total of a particular…
A GOOD REASON WHY YOU SHOULD LOVE (OR AT LEAST MEDIATE WITH) THY NEIGHBOUR: INDEMNITY COSTS OF £200,000
The Court of Appeal judgment in Dickinson & Anor v Cassillas [2017] EWCA Civ 1254 serves as a warning for anyone involved in a neighbour dispute. The Court dismissed the appellants’ appeal in relation to findings against them after a trial….
COSTS BUDGETING: IMPORTANCE GUIDANCE FROM MASTER MCCLOUD: HOW SHOULD THE COSTS OF BUDGETING BE DEALT WITH IN FORM H AND THE FINAL BILL?
Important guidance was given this morning by Master McCloud (sitting as Deputy Costs Judge) in Woodburn v Thomas (Costs budgeting) [2017] EWHC B16 (Costs).It relates to how the costs of budgeting should be dealt with in Precedent H and any in…
ISSUING NOTICE OF COMMENCEMENT OF COSTS PREMATURELY: CAN CAUSE PROBLEMS: CLAIMANT SUCCESSFUL ON THE THIRD ATTEMPT
There is an article on the Temple Garden Chambers website of the decision of Master Gordon-Saker of the judgment in Austin -v- East Sussex Fire and Rescue Service (08/08/17). The report concentrates upon the Master’s decision that he would not…
COSTS AFTER CLAIMANT’S PART 36 OFFER ACCEPTED LATE: FIXED COSTS, ASSESSED COSTS OR INDEMNITY COSTS? CIRCUIT JUDGE DECISION
I am grateful to Jonathan Frith from Winns solicitors for sending me a copy of the decision of HHJ Walden-Smith in Hislop -v- Perde a decision made in the County Court at Central London. I set the decision out in…
BULLOCK AND SANDERSON ORDERS IN PRACTICE: UNSUCCESSFUL DEFENDANT ORDERED TO INDEMNIFY CLAIMANT AGAINST SUCCESSFUL DEFENDANTS’ COSTS
One of the abiding memories of learning (and teaching) civil procedure is knowing the difference between a Bullock and a Sanderson order. Students (and practitioners) can see a Bullock order in practice in the decision of Mr Justice Nicol in Jabang…
COSTS BUDGETS:HOURLY RATES IN THE BUDGET ARE NOT DETERMINATIVE OF THE HOURLY RATES ON ASSESSMENT: A CAT AMONG THE PIGEONS HERE
In RNB v London Borough of Newham [2017] EWHC B15 (Costs) Deputy Master Campbell made an important decision in relation to hourly rates on assessment. The rates set out in the cost budget are not determinative of the rates allowed on…
COSTS BUDGETING IN BIG CASES: COSTS BUDGETS DO NOT PREVENT REASONABLE AND PROPORTIONATE COSTS BEING RECOVERED
The short judgment of Mr Justice Birss in Napp Pharmaceutical Holdings Ltd v Dr Reddy’s Laboratories (UK) Ltd & Ors [2017] EWHC 1433 (Pat) has some important lessons for litigators. “I entirely reject the submission that cost budgeting creates a problem…
QOCS: THE TRANSITIONAL PROVISIONS CONSIDERED BY THE COURT OF APPEAL: CLAIMANTS CANNOT BLOW HOT AND COLD
In the judgment today in Catalano -v- Espley Tyas Development Group Limited [2017] EWCA Civ 1132 the Court of Appeal considered the transitional provisions relating to QOCS. “We cannot accept that Mr McGee is right. Not only does he seek…
YOU OFFERED ME £100,000: I’VE ACCEPTED £15,000- OH AND I WANT MY COSTS: THE DANGERS OF NOT NEGOTIATING AND WHY THE CLAIMANT HAD TO PAY INDEMNITY COSTS
I tried to summarise the judgment of Mr Justice Mann in Jordan -v- MGN Limited [2017] EWHC 1937 (Ch) and I found it difficult. Every word of the judgment is important. It shows, at least, a very insouciant, approach by the…
TEN MINUTES IS A LONG TIME IN LITIGATION: SOLICITOR AND OWN-CLIENT ASSESSMENT OF COSTS CONSIDERS BILLING PRACTICES IN DETAIL
I am grateful to Shimon Goldwater for sending me a copy of the judgment of Master Rowley in Breyer Group Pie -v- Prospect Law Limited (A copy of which is attached Costscase). There are significant observations made in relation to…
MIB CLAIM IS SUBJECT TO QOCS: COURT OF APPEAL OVERTURN HOWE
“For the purposes of CPR Part 44.13, which describes the claims eligible for Qualified One-Way Costs Shifting (“QOCS”), what is a claim for damages for personal injury? As Stewart J said it is a simple question but does not yield…
INCURRED COSTS, PROPORTIONALITY AND BUDGETING MEANS A CASE SHOULD NOT BE STRUCK OUT
The previous post looked at the issue of incurred costs and budgeting. Some interesting points were raised in the very complex case of King Felix Sunday Bebor Berebon & others -v- The Shell Petroleum Development Company of Nigeria Limited [2017]…
INCURRED COSTS AND COSTS BUDGETING: TWO RECENT CASES
Two recent cases have considered the significance of incurred costs in costs budgeting. These two cases indicate: 1. Incurred costs do not form part of the budgeting process (but can be scrutinised at assessment, including on the issue of whether…
DON’T STOP ME NOW*: CLIFF’S COSTS BUDGETING: INCURRED COSTS; THE CAP ON THE COSTS OF BUDGETING AND PREPARATION FOR TRIAL
In Sir Cliff Richard OBE -v- The BBC & Chief Constable of South Yorkshire Police [2017] EWHC 1666(Ch) Chief Master Marsh declined an invitation to make any observations about incurred costs. The case: Has an interesting (and important) discussion of…
A SOLICITOR LLP IS NOT A LITIGANT IN PERSON (AND CAN CLAIM FULL COSTS)
NB on 1st March 2018 Litigation Futures reported that the Supreme Court had refused permission to appeal in this case. The Court noted ““This is an important point of principle which would be better considered by the Civil Procedure Rule…
HARRISON -v- COVENTRY: THE COMMENTARY SO FAR: USEFUL LINKS
The Court of Appeal decision Harrison -v- University Hospitals Coventry & Warwickshire Hospital NHS Trust [2017] EWCA Civ 792 is a significant one. To help consider its practical significance here are links to the commentary on the case. (I…
QOCS, SET OFF AND COSTS: THE COURT DOES NOT HAVE POWER TO SET OFF COSTS AGAINST COSTS: COUNTY COURT DECISION
In Darini -v- Markerstudy Group (24th April 2017) His Honour Judge Dight considered an important issue in relation to set off and costs. A copy of the judgment is available here. HMC25855_DariniOlsoyvMarkerstudy_ApprovedJudgment_24042017 (2) and has kindly been provided by Gavin Lampert…
GET £15,000 FOR YOUR COSTS PAY £20,000 IN COSTS: CONDITIONAL FEE AGREEMENT UNFAIR AND UNREASONABLE AND WAS SET ASIDE
In Vilvarajah -v- West London Law Limited [2017] EWHC B23 (Costs) Master Gordon Saker declared a conditional fee agreement unreasonable and set it aside. The history and circumstances of this action make for interesting reading. “There is no correspondence between…
NON-PARTY COSTS ORDER MADE AGAINST CAR HIRE FIRM: ANOTHER SKIRMISH IN A FORENSIC WAR
The opening words of Mr Justice Turner’s judgment in Select Car Rentals (North West) Limited -v- Esure Services Limited [2017] EWHC 1434 (QB) contain an undeniable truth. The judge was upholding a decision to award costs against a car hire…
SETTING ASIDE DISCONTINUANCE AND DISAPPLYING QOCS: A HIGH COURT DECISION
In Shaw -v- Medtronic [2017] EWHC 1397 (QB) Mr Justice Lavender considered issues relating to the setting aside of notices of discontinuance and disapplying QOCS. He declined to set aside a notice of discontinuance or give permission to enforce costs…
SKELETON ARGUMENTS TOO LONG & AMOUNT OF DOCUMENTS “ABSURD”: A JUSTIFIABLE JUDICIAL COMPLAINT
In ICAP Management Services Limited -v- Berry [2017] EWHC 1321 (QB) Mr Justice Garnham added his voice to those judges who have protested about the length of skeleton arguments and written submissions and the burden of unnecessary documents. “It is…
A NUMBER OF CHALLENGES TO THE ENFORCEABILITY OF A DAMAGES BASED AGREEMENT: MASTER MAKES ORDER FOR A SPLIT TRIAL
In Lexlaw Ltd -v- Zuberi [2017] EWHC 1350 (Ch) Master Clark considered challenges to the validity of a damages based agreement between solicitor and client. It was decided that the question of the enforceability of the agreement should be tried…
DEFERMENT OF PAYMENT OF COSTS NOT PERMITTED: RELIEF FROM SANCTIONS REFUSED: 7 DAYS LATE WAS “SERIOUS AND SIGNIFICANT”
In The Queen on the application of Bhandal -v- HM Revenue and Customs [2016] EWHC 3387 (Admin) Mr Justice Holroyde dismissed an application deferment of an order to pay costs and an application for relief from sanctions in making the…
WHY YOU SHOULD NEVER JUDGE A BOOK BY ITS COVER: THE UNDERWOOD TRILOGY
There are three volumes in Kerry Underwood’s guide to “Kerry on Personal Injury Small Claims Portals and Fixed costs”. Each has Kerry’s photo on the front. Should that put you off? As ever I have a “quick” review and a…
AGREEING EXTENSIONS OF TIME: REFUSAL TO AGREE CONTRARY TO THE OVERRIDING OBJECTIVE HAS CONSEQUENCES IN COSTS
When should a party agree an extension of time? In Emmanuel -v- The Commissioners for Her Majesty’s Revenue and Customs [2017] EWHC 1253 (Ch) Her Honour Judge Karen Walden Smith made some telling observations . “… in my judgment the…
TALES FROM THE APIL CONFERENCE V: COURT FEE REMISSION: USEFUL LINKS
I attended the session on court fees. One part of this related to the increasing importance of court fee remissions. Claimants have to know the rules and, before they pay any fee, be certain that their client is eligible. Sometimes…
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