NOMINAL DAMAGES AWARD LEADS TO NO COSTS AT TRIAL & 25% OF COSTS ON APPEAL
In Walker -v- the Commissioner of the Police of the Metropolis [2014] EWCA Civ 897 the Court of Appeal considered the appropriate costs award when a claimant succeeded on appeal but the appellate court held that he should only recover…
COSTS, PARTIES & PROPORTIONALITY: CONSTRUCTING AN ARGUMENT AS TO WHO SHOULD PAY WHAT
There are now an increasing number of cases reported where the judge sets out expressly their views in relation to costs. These are important reading. A good example is the decision of Mr Justice Edwards-Stuart in Laing O’Rourke Construction Ltd…
CLAIMANT OBTAINED COSTS OF ACTION EVEN AFTER DISCONTINUANCE: WATCH THE WORDING OF CORRESPONDENCE
In Rokvic -v- Peacock [2014] EWHC 3729 (TC) the claimant obtained an order for costs against the defendant even though the claimant had discontinued the action. It is, if anything, a warning to be totally precise in wording when making offers and…
THE COURT'S POWER TO REGULATE NON-LAWYERS INVOLVED IN LITIGATION: REFERENCE TO ARBITRATION
There are several interesting aspects of the Court of Appeal’s decision in Assaubayev -v- Michael Wilson & Partners Ltd [2014] EWCA Civ 1491. One of the points is the power of the courts over non-lawyers providing legal and litigation services….
OFFER TO SETTLE HAS MAJOR IMPACT ON COSTS OF CASE: NO SUGARING OF THIS PILL
In Sugar Hut Group Ltd -v- AJ Insurance [2014] EWHC 3775 (Comm) Mr Justice Eder held that an offer of settlement had a major impact on costs even though it was not a valid Part 36 offer and the claimant…
MORE ABOUT QOCS: CAN THEY APPLY ON APPEAL IF THE CLAIMANT HAD A PRE-APRIL 2013 CFA?
An earlier post on the risks posed by the transitional provisions of QOCS led to several comments. One of those comments was the question whether you can get QOCS protection on appeal if the original CFA did not cover appeals….
RIGHT TO INDEMNITY COSTS ARISES OUT OF CONTRACTUAL TERM
In Renewable Power & Light Ltd -v- McCarthy Tetrault [2014] EWHC 3848 (Ch) Mr Justice Morgan held that a defendant was entitled to indemnity costs when a claimant discontinued a claim half way through a trial. Indemnity costs were awarded…
NO GENERAL PRINCIPLES APPLY TO AWARD OF INDEMNITY COSTS: COURT OF APPEAL DECISION
In the short supplementary judgment in Tchenguiz -v- Director of the Serious Fraud Office [2014] EWCA Civ 1471 the Court of Appeal stated that there is no general principle that indemnity costs in applications under CPR 31.22. However the judge’s…
THE TRANSITIONAL PROVISIONS OF QOCS: A DANGER AREA
I have seen a few problems recently with the transitional provisions of QOCS. In essence if the claimant has entered into a conditional fee agreement at any time in the past then they cannot have the benefit of QOCS. A…
"MADNESS" OVER COSTS AND USELESS TRIAL BUNDLES : VIEWS FROM ANOTHER JURISDICTION
Civil practitioners may benefit from reading the observations of Mostyn J in J -v- J [2014] EWHC 3654 (Fam). It suggests that family lawyers may soon be subject to much more rigorous costs budgeting. There are also important observations about…
HELP WITH COSTS BUDGETING AND PRECEDENT H: ALL THE USEFUL LINKS IN ONE PLACE – UPDATED
THERE ARE NUMEROUS POSTS ON THIS BLOG ABOUT COSTS BUDGETING AND PRECDENT H. THESE ARE UPDATED ON A REGULAR BASIS. AS A REMINDER HERE ARE THE IMPORTANT LINKS TO GUIDANCE ON COSTS BUDGETING AND PRECEDENT H MOST RECENT LINKS…
COSTS, OFFERS AND ESTATES: A CASE IN POINT
There is an interesting discussion as to costs in the judgment of HH Judge Hodge QC in Goenka -v- Goenka [2014] EWHC 2966 (Ch). This also shows the difficulty in dealing with costs issues at the end of a long…
THIRD PARTY COST ORDERS: NO SPECIAL STANDARD FOR SOLICITORS AS LITIGANTS
For the third time in recent weeks there has been an interesting decision on non-party costs orders. In Virdi -v- R K Joinery Ltd [2014] EWHC 3492 Mr Justice Henderson upheld an order for costs against a non-party. However the…
INDEMNITY COSTS AGAINST FUNDERS : WHO PAYS WHAT FOR WHEN?
In Excalibur Ventures & others -v- Psari Holdings & ors [2014] EWHC 3436 Christopher Clarke LJ awarded costs on an indemnity basis against third party funders. Many important matters of general importance are considered. THE CASE The claimants brought what…
SOLICITORS RETAINER WAS UNLAWFUL & NO COSTS PAYABLE: COURT OF APPEAL DECISION CONSIDERED
In the judgment given today Rees -v- Gateley Wareing [2014] EWCA Civ 1351 the Court of Appeal held that a retainer between the solicitor and client was unlawful, overturning the first instance decision on the matter. Consequently the solicitors could…
COSTS ASSESSED AT NIL WHEN SOLICITOR FAILED TO MAKE PROPER INVESTIGATIONS INTO CLIENT'S FUNDING
The case of McDaniel & Co -v- Clark (QBD Hickinbottom J 15/10/14) contains a clear warning that solicitors must make proper enquiries about funding at a very early stage. (This post is based on the Lawtel note of the judgment…
COSTS CAPPING IN THE COURT OF APPEAL: ANOTHER EXAMPLE OF COSTS CAPPING BEING REFUSED
We have looked before at issues relating to costs capping in the Court of Appeal. I am grateful to Claire Darwin of Matrix Chambers for bringing my attention to the case of Black -v- Arriva North East Ltd [2014] EWCA…
NON-PARTY COSTS ORDERS: ALL THE LAW IN ONE USEFUL PLACE
Making an application for a non-party costs order can be a controversial step in the proceedings. The, principles, law and practice are thoroughly reviewed by Mr Justice Akenhead in Weatherford Global Products Ltd -v- Hydropath Holdings Ltd [2014] EWHC 3243…
SOME THINGS MAY BE BETTER MEDIATED THAN LITIGATED: NEIGHBOUR DISPUTES FOR INSTANCE
There are some very important observations in the judgment of Norris J in the case of Bradley -v- Heslin [2014] EWHC 3276 (Ch) today. This was given in a neighbour dispute over access and gates which could have been remedied…
SORTING MAJOR PROBLEMS OUT IN THE MIDDLE OF A TRIAL: SCHEDULES AND STATEMENT OF ISSUES SHOULD BE PREPARED IN ADVANCE NOT DURING A TRIAL
The major purpose of case management is to ensure that when a matter reaches trial the parties, and the judge, know precisely what the issues are in Redd Factors -v- Bombadier Transportation [2014] EWCH 3138 (QB) this process clearly went…
A PARTY UNREASONABLY REFUSES TO MEDIATE BUT RECOVERS ALL ITS COSTS: WHY NORTHGROP GRUMMAN (2) IS ESSENTIAL READING
The question of costs liability following an “unreasonable” failure to mediate remain a developing area of law. This is an area with profound practical implications for litigators and their clients. That is why the decision of Mr Justice Ramsey in…
RELIEF FROM SANCTIONS GRANTED: RESPONDENT'S "OPPORTUNISTIC" BEHAVIOUR CONDEMNED
In Long -v- Value Properties [2014] EWHC 2981 (Ch) Mr Justice Barling roundly condemned the defendants for taking opportunistic points in litigation. The judge overturned a decision by the Master refusing relief from sanctions. THE FACTS This was an application…
CALDERBANK OFFER HAD NO EFFECT ON OUTCOME IN RELATION TO COSTS:
Some parties make “Calderbank” offers in place of Part 36 offers. The effect of a Calderbank offer and whether it should affect an order for costs was considered by the Court of Appeal today in Coward -v- Phaesetos [2014] EWCA…
NO INDEMNITY COSTS: GORGEOUS BEAUTY 2
We looked at the Gorgeous Beauty case earlier in the context of witness evidence. I am grateful to Jon Lord for bringing my attention to the subsequent decision on costs. The judge declined to order indemnity costs and awarded the…
MORE ON CHILD CLAIMANTS AND THE RECOVERY OF SUCCESS FEES: AN EXTREMELY HELPFUL NOTE FROM THE CLAIMANT'S SOLICITORS
The post yesterday on children and success fees got a lot of attention. I am grateful to Daniel Higgins head of costs at Gavin Edmonson Solicitors Ltd who was involved in that appeal. His note (reproduced with his permission below)…
RULE CHANGES COMING INTO FORCE ON THE 1st OCTOBER 2014
A reminder that rule changes come into force on the 1st October with links to the relevant rules and useful articles and guidance. AN OUTLINE OF THE CHANGES The following summary is taken from The Justice guide The changes are,…
SUCCESS FEES IN CHILDREN CASES: LIVERPOOL AND MANCHESTER PRACTICE
The question of deducting success fees from the damages of a child remains a vexed one. I am grateful to Gillian Shaw from Paul Rooney LLP Solicitors who sent me the following note in relation to the practice in Liverpool…
COSTS CAPPING IN THE COURT OF APPEAL: DON'T BANK ON THE TIDE BEING IN YOUR FAVOUR
In Tidal Energy -v- Bank of Scotland Plc Arden L.J. considered, and rejected, an application for costs capping in relation to a forthcoming Court of Appeal hearing. The Court was keen to discourage satellite litigation in the Court of Appeal….
THINKING OF ISSUING WITHOUT A LETTER BEFORE ACTION? THINK AGAIN IT MAY BE BAD FOR YOUR HEALTH(CARE)
In Baxter Healthcare UK Ltd -v- Fresenius Kabi* (17/09/14) Judge Hacon set out the dangers of issuing proceedings without sending a letter before action. THE ISSUES The claimant issued proceedings without sending a letter before action. The dispute was resolved….
INDEMNITY COSTS, COSTS BUDGETING AND WITNESS STATEMENTS:INTERVIEW ON KELLIE -v- LLOYD
There is a feature on the Lexis Nexis Dispute Resolution Blog where I answer questions about the implications of the judgment in Kellie and another v Wheatley & Lloyd Architects Ltd [2014] EWHC 2886 (TCC), [2014] All ER (D) 152 (Aug)…
COSTS IN THE SUPREME COURT: NEGLIGENT SOLICITORS ORDERED TO PAY COSTS OF BOTH SIDES
What costs order should the Supreme Court make when an appellant succeeds in establishing that wills are valid despite the fact that they have been improperly executed because of negligence on the part of a solicitor? A pragmatic view was…
COSTS CLAIMED AS DAMAGES 2: THE CASE LAW IN DETAIL
I am grateful to P.J.Kirby Q.C. for responding to the previous post on costs claimed as damages. The situation is far more complex than the passage cited in the Rentokil case suggests. THE ISSUE P.J. asked whether the case of…
WHAT IS THE POSITION WHEN LEGAL COSTS ARE CLAIMED AS A HEAD OF DAMAGES?
The case of Rentokil Initial -v- Goodman Derrick LLP [2014] EWHC 2994 (Ch) was looked at in the previous post in relation to evidence. However it also raised an interesting issue as to the approach a court should take when a…
INTERIM COSTS ORDERS: USEFUL GUIDES AND LINKS
I was asked to speak at the Inaugural meeting of the Yorkshire Branch of the Association of Cost Lawyers recently. One matter that came up in discussion was how rarely applications were made for interim applications for costs. This can…
CAN YOU GET AN ORDER FOR QOCS TO APPLY ON AN APPEAL? CPR 59.2A CONSIDERED BY THE COURT OF APPEAL
In JE -v- Secretary of State for the Home Department [2014] EWCA Civ 192 the Court of Appeal considered whether a QUOCs type order could be made in the Court of Appeal. The Court also emphasised the importance of prompt…
THE RISK OF INDEMNITY COSTS: WHAT ARE YOU GOING TO TELL YOUR CLIENT?
The idea of costs budgeting was, in part at least, to give the parties some certainty as to the costs they would have to face it they lost an action. However the decision in Kellie & Kellie -v- Wheatley &…
COSTS BUDGETING: CONDUCT, INDEMNITY COSTS AND PAYMENT ON ACCOUNT: KELLIE -v- WHEATLEY CONSIDERED
We looked at the decision in Kellie & Kellie -v- Wheatley & Lloyd Architects Ltd[2014] EWHC 2866(TCC) yesterday in the context of drafting witness statements. The judgment is equally interesting on the issue of costs and costs budgeting. There is an…
ANOTHER RELIEF FROM SANCTIONS CASE – ANOTHER CONSERVATIVE MP: RELIEF GRANTED AFTER FAILURE TO SERVE NOTICE OF FUNDING
Relief from sanctions was granted to the claimant in Ye0 MP -v- Times Newspapers Ltd [2014] EWHC 2853 (QB). THE ACTION This was a defamation action where the claimant had failed to file notice of funding with the Particulars of…
A 20 DAY TRIAL WHEN THE CASE WAS ALL ABOUT ONE WITNESS: WOULD THIS CASE BE ANY DIFFERENT TODAY?
Back in 2003 Chris Evans, the radio presenter, was involved in a lengthy contractual dispute with a number of defendants. There were 9 parties to the action and the trial went on for twenty days. The judge’s observations at the…
PART 36 OFFERS AND NON-MONETARY CLAIMS: A HIGH COURT CASE CONSIDERED
We have looked before at the advantages to a claimant in making an early Part offer. If the claimant matches or beats that offer at trial then there are advantages in costs and interests. There can also be a 10%…
FAILURE TO SERVE NOTICE OF AMENDED CFA DETAILS IS NOT A SERIOUS OR SIGNIFICANT BREACH: HIGH COURT DECISION CONSIDERED IN DETAIL
The High Court decision in Ultimate Products Ltd -v- Wooley [2014] EWHC 2706 (Ch) provides further guidance as to what the courts are likely to consider “serious or significant” breaches. The High Court judge upheld the decision of the Master…
QUOCS IN THE COURT OF APPEAL: FOUR IMPORTANT ISSUES: WAGENAAR CONSIDERED
The decision of the Court of Appeal in Wagenaar -v- Weekend Travel Ltd [2014] EWCA Civ 1105 was reported today. It contains important observations and decisions on qualified one way costs shifting, something that is likely to become a major…
GUIDELINES ON HOURLY RATES: NOT MUCH HAS CHANGED: NEED FOR MORE RESEARCH
The long awaited (and long delayed) guidance on hourly rates has been published. The Courts and Tribunals Judiciary commentary and guidance can be found here. The Committee’s letter to the Master of the Rolls is here The response of the…
THERE ARE DANGERS IF YOU ARE LEAVING THE ISSUE OF COSTS TO THE JUDGE: IN ANY EVENT BE QUICK AND BE CHEAP!
There are limited number of cases where the parties can agree everything except who should pay the costs. There are dangers in leaving the question of costs to the judge, as the case of Spiller -v- Derhalli [2014] 2548 (EWHC)…
PRECEDENT H AND COSTS BUDGETING: NEW LINKS AND OLD LINKS
There are several posts on this blog which link to guides, articles and assistance on costs budgeting and Precedent H. Here there are several more recent links. The Construction of a Costs Budget is particularly instructive PREVIOUS POSTS One of…
ALLOCATION BETWEEN THE SMALL CLAIMS TRACK AND THE FAST TRACK: WHAT IS MEANT BY "ANY AMOUNT NOT IN DISPUTE"?
In the case of Akhtar -v- Boland [2014] EWCA Civ 872 the Court of Appeal gave guidance on CPR 26 and the matters to be considered when a determination is made as to allocation between the Fast Track and the…
PRO BONO COSTS ORDERS: THE SECTION, GUIDES AND LINKS
I am grateful to Nick Hanning for pointing out one aspect of the judgement in the recent Paratus case that he, rightly, says would benefit from wider publicity. The Court made a Pro Bono Costs order under section 194…
RELIEF FROM SANCTIONS FOLLOWING FAILURE TO FILE FUNDING INFORMATION AT START OF COSTS ASSESSMENT: MERCANTILE COURT DECISION
In Warner -v- Merrett (QBD Merc 12/6/2014) Judge Mackie QC granted relief from sanctions following a failure to serve documents relating to serve documents relating to additional liabilities at the outset of a detailed costs assessment. The case was briefly…
SANCTIONS HEARING TODAY: NOTES OF THE HEARING IN DECADENT VAPOURS
DECADENT VAPOURS LIMITED V BEVAN Heard by the Court of Appeal on 16th June 2014 (Lord Justice Dyson MR) (Lord Justice Jackson) (Lord Justice Vos) APPELLANT/CLAIMANT’S SUBMISSION In the present case the appellant appeals a decision to refuse relief from…
PORTAL ISSUES: WHAT HAPPENS IF THE DEFENDANT DOESN'T PAY THE COSTS?
It is clear that a new jurisprudence is developing around behaviour in, or around, the portal. A previous post looked at how the court will construe procedural issues arising out of the portal. I am grateful to Tom Melville of…
