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. …
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]…
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