PART 36 IN THE COURT OF APPEAL TODAY: DIGGING DEEPER 2: WAS AN OFFER ON LIABILITY EFFECTIVE IN THIS CONTEXT?
We continue with the detailed examination of the Court of Appeal decision on Part 36 this morning. This aspect of the case is particularly important because, again, although the claimant lost the appeal he won on this particular issue. That…
COST BITES 329: THE COURT’S APPROACH TO INTERIM PAYMENTS ON COSTS THAT ARISE FROM APPLICATIONS AND CLAIMS FOR “OVERSPENDS” – COSTS OUTSIDE THE BUDGET
Some of the basic principles upon which the courts make orders for interim payments are well established, particularly when the case has been budgeted. This case considers the appropriate approach when there is a claim for costs arising from interlocutory…
COST BITES 327: THE COSTS OF FILING AN ERRANT REPLY CONSIDERED: AN APPLICATION PURSUED “AGGRESSIVELY” – COSTS REDUCED TO 10% OF THOSE CLAIMED
Here we have the defendant making a justified, and successful, application to strike out a Reply. However the judge was unhappy with the manner in which the application (and the litigation generally) was being conduced (by both sides). He found…
COST BITES 326: DEFENDANT SUCCESSFUL IN OBTAINING A NON-PARTY COSTS ORDER: FARES FAIR IN THE BUS STATION CASE…
This judgment today is an interesting illustration of the fact that those providing support to a party can find themselves the subject of a non-party costs order. In this case the claimant company was in liquidation. The respondents to the…
COST BITES 325: DOES THE FACT THAT THERE WOULD BE COMPLEX ISSUES ON DETAILED ASSESSMENT MEANT THE COURT SHOULD NOT MAKE AN ORDER FOR PAYMENT OF COSTS ON ACCOUNT?
The rules, and often the courts, are keen to encourage payments on account of costs. They have advantages to both parties. The receiving party receives a large percentage of costs promptly, the paying party reduces the amount of interest that…
COST BITES 324: THE TIME FOR ASSESSING COSTS IS NOW – WHO KNOWS WHAT WILL HAPPEN LATER
Here we are looking at an argument by a paying party that costs payable at an application should be reduced because the work would be required to be done at a later stage in any event. (The judge has no…
COST BITES 324: COURT REFUSES TO REDUCE SUCCESSFUL DEFENDANT’S COSTS BECAUSE OF REFUSAL TO ENGAGE IN MEDIATION
A party liable to pay the costs of a successful opponent is always keen to reduce that liability, not least by arguing that they should have a reduction in costs because of their opponent’s conduct. We see such an argument…
COST BITES 323: HOURLY RATES: THIS CASE DOES NOT FALL INTO LONDON BAND 1: IT CERTAINLY DOES NOT JUSTIFY FEES ABOVE THAT RATE…
We are returning to the issue of hourly rates. In this case the receiving party sought hourly rates that were above the London 1 band. The judge held that the case did not fall within that band and certainly did…
COST BITES 322: WHAT IS THE POSITION OF AN INSURER IN RELATION TO VAT WHEN THE INSURED IS INSOLVENT: DOES A PAYING PARTY NOW HAVE TO PAY VAT?
This is an interesting “cost bite” issue. What is the position on VAT when an insurer is being sued under the Third Parties (Rights Against Insurers) Act 2010 but the insured has gone into voluntary liquidation? Is a paying party…
COST BITES 321: THE GUIDELINE HOURLY RATES ARE NOT “SOMEWHAT OUT OF DATE”
The previous post on the updating of the Guideline Hourly rates leads us to this next case. It poses the question – are the rates “somewhat out of date”. As we shall see the judge gives a clear answer. (There…
NEW YEAR: NEW GUIDELINE HOURLY RATES: SEE THE DETAILS HERE: EFFECTIVE FROM YESTERDAY
The new Guideline hourly rates were published yesterday. They take effect from 1st January 2026 (for anyone working on that day…). They have been updated using service producer price inflation (SPPI). THE INCREASES The increases are 2.28%, using the…
REVIEW OF THE YEAR 13: WHAT ARE PEOPLE READING?
It is always interesting to look back and see what are the most popular posts each year. Sometimes this contains surprises, sometimes it says something about the state (or at least the interests) of the legal profession. Here are…
JURISDICTION CHALLENGE UNDER CPR 11 WAS “TOTALLY WITHOUT MERIT”: THE APPLICANT HAD ACCEPTED JURISDICTION IN ANY EVENT: INDEMNITY COSTS ORDERED
Here we look at an unusual application to challenge jurisdiction under CPR Part 11. It was unusual because it invited the court to consider the case on the merits. The court was not impressed with this approach, declaring it to…
REVIEW OF THE YEAR 12: MAZUR AND THE CONDUCT OF LITIGATION: 48 POSTS TO DATE…
I have saved this topic from being the 13th in the series. However it may be fitting if it was. From the moment I read the the Mazur judgment for the first time it was clear that it was going…
COST BITES 320: CLAIMANT WAS ENTITLED TO SEEK A FURTHER INTERIM PAYMENT AS TO COSTS: “I THINK IT CONSIDERABLY UNFORTUNATE THAT THIS POINT HAS BEEN TAKEN”
Later this month we are taking our traditional end of year look at “opening lines of judgments”. Sometimes opening lines provide a clue as to the judge’s thinking. When the first sentence contains the words “I think it is considerably…
REVIEW OF THE YEAR 5 : 111 POSTS IN THE “COSTS BITES” SERIES (AND COUNTING): DON’T LOOK AWAY NOW…
There is no doubt at all that the Costs Bites series is one of the most widely read on this blog. The series started in July 2022 and the aim is to look at what is happening in relation to…
COST BITES 319: WHATSAPP MESSAGES CAN FORM PART OF A SOLICITOR’S FILE: THE DEFENDANT FIRM WAS, THEREFORE, IN BREACH OF A PEREMPTORY ORDER
This case raises highly significant issues for all firms of solicitors. It relates specifically to whether messages sent by WhatsApp form from private phones form part of a solicitor’s file. However the case extends to any type of electronic communication,…
COST BITES 318: PART 36 ISSUES: DOES AN AGREEMENT ON DAMAGES AFTER TRIAL MEAN THAT THE NORMAL PART 36 CONSEQUENCES DO NOT APPLY?
Do the normal Part 36 consequences apply when the parties agree damages and lodge a consent order after a trial on liability? That is the issue considered by the High Court here. (Part 36 consequences apply – the writing is…
COST BITES 317: ANOTHER ROUND IN THE MEDICAL AGENCY FEES/BREAKDOWN BATTLE: THE AGENCY MUST PROVIDE A BREAKDOWN
Here we have another case in the long-running battle over the disclosure of agency fees. I am grateful to Claire Kewin from Keoghs solicitors for sending me a copy of the judgment and for her summary of its practical implications…
COST BITES 315: A LACK OF AUTHORITATIVE CASE LAW DOES NOT JUSTIFY A DEPARTURE FROM THE GENERAL RULE THAT THE LOSING PARTY PAYS THE COSTS
Should the fact that there is no authoritative case law on a topic lead to a “different” order as to costs. This was one of the issues considered by the judge in this case. Similarly the court considered the relevance…
COST BITES 314: PERSONAL INJURY CLAIM SHOULD HAVE BEEN BROUGHT IN THE RTA PROTOCOL: CLAIMANT LIMITED TO FIXED COSTS
This is the second case today that was sent in by a helpful reader. I am grateful to Ben Millns from Kennedys who has sent me a copy of this judgment. It relates to the question of whether a personal…
MAZUR MATTERS 43: AN EXAMPLE WHERE SUPERVISION WAS FOUND TO BE INADEQUATE: ACTION BY THE SRA & A FINE OF £30,000
It would be interesting to know what (if any) percentage of the profession read the SRA document “Effective supervision – Guidance” published in November 2022. The Mazur issue was there in plain sight. There is only one practical example given in…
MAZUR MATTERS 42: CAN ANY GOOD COME OF ALL THIS? POSITIVE THINKING ABOUT DELEGATION AND THE CONDUCT OF LITIGATION: SOME USEFUL LINKS
The current situation is that large parts of the profession are waiting, with bated breath, for a Court of Appeal judgment as to whether the Mazur decision was right, in particular in relation to non-authorised employees having the “conduct” of litigation. …
MAZUR COMPLIANT SUPERVISION AND COST EFFECTIVE DELEGATION IN 2025: WEBINAR 5th DECEMBER 2025: “TASKS MAY BE DELEGATED BUT CONDUCT OF THE LITIGATION MAY NOT”
With an appeal pending (at some indefinite time) and the profession still rife with uncertainty we need to consider, head on, issues relating to delegation and supervision. Get this right and you will be part of a well run and…
INDEMNITY COSTS ORDERED IN CASE WHERE CLAIMANTS OBTAINED INFORMATION FROM DEFENDANTS’ SOLICITOR IN A “STING” OPERATION: “THE CLAIMANTS SOUGHT TO JUSTIFY THE UNJUSTIFIABLE”
This is a case worth reading if you want to see strong judicial commentary on litigation conduct. The judge was clear in his view of the conduct that the claimants had engaged in and surprised by its lack of self…
COST BITES 313: A SUCCESSFUL CLAIMANT IS NOT GOING TO BE DEPRIVED OF THEIR COSTS BECAUSE THEY FAILED TO BEAT THEIR OWN OFFERS…
This is a case with some interesting arguments as to costs. The court considered allegations of a failure to engage in ADR; the fact that the claimants had not beaten their own offers and issues in relation to conduct, proportionality…
COST BITES 312: A CHANCE TO SEE COSTS BUDGETING IN ACTION: A CASE WHERE FUNDAMENTAL DISHONESTY IS ALLEGED AND THE CLAIMANT IS A PROTECTED PARTY
It is always interesting to read detailed decisions about costs budgeting. They are few and far between. We have a full judgment here where the Master deals with issues such as hourly rates, the impact of allegations of dishonesty and…
MAZUR MATTERS 41: CILEX GRANTED PERMISSION TO APPEAL THE MAZUR JUDGMENT: BUT WHEN WILL IT BE HEARD?
CILEX have been granted permission to appeal the Mazur judgment. The primary question for the profession now is (i) when will the appeal be heard; (ii) what do we do in the meantime? Mazur remaining good law. (I wish CILEX…
COST BITES 311: YES THIS CASE WAS COST BUDGETED (AND THE PAYING PARTIES AGREED THE BUDGET): “ONLY THE CLAIMANTS CAN CATEGORICALLY ATTEST WHETHER THEY AGREED THE DEFENDANTS’ BUDGET TACTICALLY OR NOT”
There may well be a practice of one party agreeing their opponent’s budget “tactically”. That is by agreeing that budget it is hoped that their own budget will look appropriate in comparison. That is one of the issues being considered…
ANOTHER FALSE AND “HALLUCINATED” CITATION CASE: A SOLICITOR IS ACCOUNTABLE FOR WORK DONE BY THEIR STAFF: WASTED COSTS ORDER MADE
We have yet another case of “hallucinated” cases caused by artificial “intelligence” being cited in court. These have the capacity to, and indeed do, land lawyers in very hot water. Here false cases were put before the court in an…
COST BITES 310: COSTS, CONDUCT AND ADR: THE DEFENDANTS HAD NOT BEEN UNREASONABLE IN THEIR APPROACH TO MEDIATION: IT WOULD HAVE BEEN WHOLLY REASONABLE FOR THEM TO REFUSE TO MEDIATE IN ANY EVENT
The impact that a litigant has to mediation, and in particular a failure to properly respond to or participate in ADR, can have an impact on costs. However this is not automatic. Further there are cases (such as this) where…
COST BITES 309: ISSUES OF SECURITY FOR COSTS CONSIDERED IN A SOLICITOR AND OWN CLIENT ASSESSMENT : WITH IMPORTANT POINTERS HERE FOR ALL SECURITY FOR COSTS APPLICATIONS: “I AM NOT PREPARED TO DECIDE THIS APPLICATION ON THE BASIS OF INFERENCE AND CONJECTURE”)
We are looking at an application relating to security for costs in the context of a solicitor and own client assessment. However, as the heading indicates, there are more general lesson here for all litigators. In particular the need to…
COST BITES 308: SHOULD BUDGETING TAKE PLACE IN A £340 MILLION CASE? TAXIS DRIVERS WANT TO KNOW THE FARE IN ADVANCE
The usual “cut off” point for costs budgeting is £10 million. Here we are looking at a case where the court considering budgeting in a case with a value of £340 million. The judgment contains interesting, and important, observations on…
TALES FROM THE COST LAW CONFERENCE SOME BRIEF POINTS (3): COSTS JUDGE SIMON BROWN ON THE NUTS AND BOLTS OF COSTS BUDGETING
Costs Judge Brown makes the point here that costs budgeting is here to stay. There are a few basic issues, the “nuts and bolts” of budgeting which help ensure that the whole process runs smoothly. (You can never underestimate the…
TALES FROM THE COSTS LAW CONFERENCE SOME BRIEF POINTS 1 : MAZUR ISSUES: WAS IT CORRECTLY DECIDED? WHY IT IS IMPORTANT THAT COST LAWYERS ARE REGULATED
Today I am writing directly from the Association of Costs Lawyers conference in London. Unsurprisingly the first two speakers considered Mazur. This is a highly abbreviated version of their talks. ANDREW ROY KC Andrew, kindly referring to this blog as…
COST BITES 305: THE JUDGE WAS WRONG TO AWARD COSTS AGAINST A PARTY WHEN TWO ACTIONS WERE “JOINED” AND NOT “CONSOLIDATED”: AN IMPORTANT DISTINCTION IN THE RULES
We are looking at a case where the appellant was successful in overturning an award for costs made against him in relation to one set of proceedings. The judgment highlights the important distinction between “joinder” and “consolidation”. That distinction can…
COST BITES 304: “NEGLIGENCE” HAS A PARTICULAR MEANING IN A WASTED COSTS APPLICATION: THERE MUST BE “SOMETHING AKIN TO AN ABUSE OF PROCESS”.
The judgment here considers what is meant by “negligent” when wasted costs are sought against a legal representative. The review of the authorities makes it clear that it has a specific meaning. (There is a Lord Denning judgment where he…
COST BITES 303: THE SOLICITOR CANNOT PASS ON RESPONSIBILITY FOR A DEFECTIVE BILL TO THE COSTS LAWYER: A 75% REDUCTION BECAUSE OF THE WAY IN WHICH THE BILL WAS DRAFTED
Here we are looking at a case involving a bill of costs that was wholly defective that the costs judge was invited to strike it out. The judge came very close, but reduced the bill by 75% instead. There…
MAZUR MATTERS 27: TWO MORE USEFUL LINKS: A USEFUL GUIDE FROM INSURERS: PLUS THE FIRST “REAL WORLD” CASE WHERE MAZUR HAS LED TO A SUBSTANTIAL REDUCTION IN COSTS
The commentary on Mazur continues. Here I want to look at two useful links. The first relates to guidance given by an insurer. The second relates to the first report (I have seen) on Mazur having an impact on costs….
COST BITES 302: WAS THE JUDGE WRONG TO IMPOSE A WASTED COSTS ORDER? ISSUES OF CAUSATION AND “NEGLIGENCE” CONSIDERED IN THE COURT OF APPEAL
We are looking at a case where the Court of Appeal considered a wasted costs order in critical terms. Although we are considering a decision in the criminal courts the principles relating to wasted costs are of general application. Firstly…
COST BITES 301: THE AARHUS COST CAP FIGURES ARE NOT SETT IN STONE: BUT IT VERY DIFFICULT TO PERSUADE A COURT TO CHANGE THEM
This may be the first time we have looked at the issue of costs and badgers. We are looking at a case where the defendant sought to change the amounts of the “Aarhus cap” on the recoverability of costs in…
SHOULD A CLAIMANT BE GIVEN PERMISSION TO WITHDRAW THEIR OWN PART 36 OFFER? (2): THE PRINCIPLES CONSIDERED
We continue with the consideration of the recent case in which a claimant applied for permission to withdraw a Part 36 offer. The judge also considered the relevant rules and case law in detail. (You need the court’s permission to…
COST BITES 300: THE SERIES TO DATE: IT STARTED WITH A “BOUTIQUE FIRM”, YESTERDAY IT WAS ABOUT CONDUCT, AND IS UNLIKELY TO END SOON…
This series started in July 2022. I wanted to make sure that we got to look at the “smaller” issues in relation to costs as well as major decisions. Those “incidental” issues, summary assessments, judicial commentary and the like can…
COST BITES 298: SHOULD THE DEFENDANT PAY ALL THE COSTS WHEN THE CLAIMANT DISCONTINUED AGAINST OTHER DEFENDANTS
We are looking here at an issue relating to a defendant’s liability to pay the costs of other defendants against whom no order for costs was made. Was the “paying” defendant also liable to pay the costs that the claimant…
COST BITES 297: THE NATURE OF COSTS CONSIDERED IN THE SUPREME COURT – WHICH GOES BACK TO FIRST PRINCIPLES: “THE EXPRESSION”LEGAL COSTS” HAS A RESTRICTED MEANING”: COSTS HAD TO BE PAID IN STERLING
It is very unusual for issues relating to costs to reach the Supreme Court. There was such a case yesterday. The Court considered whether a paying party was liable to pay costs in sterling or the domestic currency of the…
MAZUR MATTERS 22: USEFUL LINKS: GUIDANCE FROM THE SRA (IN 2022) – WHICH SAID EXACTLY WHAT MAZUR SAID: A SITUATION HIDING IN PLAIN SIGHT…
Here we look at guidance given by the SRA in November 2022. The one thing that the SRA can point to is the fact that this guidance said, in clear terms, precisely what was said in Mazur about who can…
COST BITES 296: COURT OF APPEAL CONSIDERS APPELLANTS’ APPLICATION FOR A COSTS CAP: CAN THE LITIGATING TENANTS PUSH THE COSTS RISKS ONTO THE NON-LITIGANTS?
Here we are looking at a Court of Appeal decision in relation to the costs capping on an appeal. It was common ground that the Court had the power to order a costs cap if so minded. However the practical…
EXPERT WATCH 20: THE APPROPRIATE APPROACH WHEN THE PARTIES CANNOT AGREE INSTRUCTIONS TO A SINGLE JOINT EXPERT
Here we are looking at a case where there was an issue as to the instructions given, or to be given, to a single joint expert. The judge set out the basis upon which such experts are instructed and the…
MAZUR MATTERS 18: WHAT DIFFERENCE WILL MAZUR MAKE TO THE ASSESSMENT OF COSTS? HOW ABOUT – ABSOLUTELY NONE…
Much has been written about Mazur, this includes many “column inches” about the implications for inter parties and solicitor and own client costs. However there is some support for the proposition that the fact that an “unauthorised” litigator has not…
PART 36 CASE OF DAY (4): THE AMOUNT OF INTERIM PAYMENT AS TO COSTS WHAT IS THE APPROPRIATE PERCENTAGE?
It is now normal for a successful party to be awarded interim costs at the conclusion of a trial. Here there is consideration of some of the issues in relation to the making of such orders. In particular the court…
You must be logged in to post a comment.