PART 36 CASE OF THE DAY (3): SHOULD FAILURE TO MEDIATE PROMPTLY MAKE A DIFFERENCE TO THE COSTS ORDER?
We are continuing with our examination of the costs implications of a costs order. Here we look at the defendant’s arguments that the claimant’s failure to respond promptly to an offer to mediate should lead to costs penalties. (The Sounds…
PART 36 CASE OF THE DAY (2): SHOULD THE NORMAL CONSEQUENCES OF A FAILURE TO BEAT A PART 36 OFFER APPLY? INTERESTING ISSUES OR ISSUES ON INTEREST?
We continue looking at a High Court decision with some interesting issues in relation to the making of Part 36 offers and the consequences for a party if the offer is not beaten. Here we look at the court’s considerations…
PART 36 CASE OF THE DAY (1): WAS THE OFFER A VALID OFFER? TWO FIELDS, THREE TRACTORS AND £20,000 CAUSED A FURROW IN THE DEFENDANT’S BROWS
Here we are looking at an argument as to whether a Part 36 offer, slightly unusual in form, was a valid Part 36 offer. Later posts will examine many of the other issues relating to costs that were considered in…
SHOULD THE DEFENDANT BE ORDERED TO PAY THE CLAIMANT’S COSTS WHEN IT RAN AN UNSUCCESSFUL ARGUMENT AS TO FUNDAMENTAL DISHONESTY? A HIGH COURT DECISION
There has been much debate recently about whether assertions of fundamental dishonesty have been made too readily. This case makes it clear that there may be costs consequences for those who run such arguments but who do not succeed. This…
MAZUR RECORDING – NOW AVAILABLE
The webinar on Mazur I did last Friday is now available from Steve Cornforth who kindly arranged it. Details are below. (You can watch the recording on any screen you like – well nearly…) HOW TO GET IN TOUCH WITH…
PART 36: SHOULD THE COURT EXERCISE ITS DISCRETION SO THAT THE NORMAL PART 36 PROVISIONS DO NOT APPLY? THE HIGH COURT CONSIDERS THE “FORMIDABLE OBSTACLE”…
Here we have a case where the court considered the defendant’s argument that the normal provisions of Part 36 should not apply when that defendant had failed to beat a claimant’s Part 36 offer. The burden on a party arguing…
PART 36: THE DEFENDANT DID NOT SEEK CLARIFICATION OF THE OFFER – ITS TERMS WERE CLEAR AND WERE EFFECTIVE
Here we consider a case where a defendant argued that the term of a claimant’s Part 36 offer was not clear and the offer was not, therefore, valid. The defendant had not sought clarification of the offer. (Unluckily for the…
MAZUR MATTERS 7: LINKS TO SOME USEFUL RESOURCES: SOME INTERESTING READING FOR THE WEEKEND…
I have just finished presenting a webinar on the Mazur decision. I have a distinct feeling that this will not be the last. It was the first time I can remember where the time spent on questions afterwards exceeded the…
PART 36: WHAT FACTORS ARE CONSIDERED AS TO INCREASED INTEREST WHEN A CLAIMANT BEATS ITS OWN OFFER? THE ISSUE CONSIDERED IN THE HIGH COURT
When a claimant beats their own Part 36 offer they are entitled to additional interest on damages from the “relevant period” (the date of expiry of the offer. Here we have a case where the factors that effect the rate…
MAZUR MATTERS 6: FURTHER GUIDANCE FROM CILEX: “FIRMS WILL NEED TO SATISFY THEMSELVES THAT THEY ARE COMPLIANT WITH THE LAW”
CILEX have provided further guidance in a document produced yesterday “CILEx Regulation – Interim Guidance The conduct of litigation and supervision”. (It may not be too late to register for the webinar on this topic today at 12.00 – details…
MAZUR MATTERS 3: CILEX MEMBERS – THE REAL VICTIMS OF ALL THIS: WHAT CILEX MEMBERS CAN DO ABOUT THIS
If any members of the profession are entitled to be disgruntled (to put it mildly) about the decision in Mazur it is CILEX members who conduct litigation. They have hard earned qualifications and extensive experience. However, unless they come within…
COST BITES 294: “A DETAILED ASSESSMENT IS NOT THE FORUM TO RESCUE OR TO ATTEMPT TO CHANGE THE EFFECT OF A POORLY WORDED ORDER”: THE COURT WOULD NOT CONSIDER ASSERTIONS OF POTENTIAL FUNDAMENTAL DISHONESTYOF THE PRIMARY ACTION ON ASSESSMENT
Here we are looking at an attempt by a paying party defendant to raise issues of conduct, including potential fundamental dishonesty, at the assessment of costs stage. The defendant argued (or attempted to argue) that the costs judge should take…
COST BITES 293: AN EXAMPLE OF AN ASSESSMENT OF A SUMMARY ASSESSMENT (AND COSTS BEING REDUCED) WHEN THE OPPOSING PARTY WAS NOT PRESENT
The periodical reminder that this series is aimed at looking at what goes on “on the ground” in the world of costs, in addition to looking at important developments in case law. It is to allow litigators to gain “a…
MAZUR MATTERS 1: THE PENALTIES FOR NON-QUALIFIED STAFF CONDUCTING LITIGATION (AKA “HOW MUCH TIME COULD I SERVE”)
The webinar on Friday the 3rd October will deal with many of the major issues that arise from the the decision in Mazur & Anor v Charles Russell Speechlys LLP [2025] EWHC 2341 (KB). However it is clear that it…
A REMINDER: WEBINAR ON THE PRACTICAL IMPLICATIONS OF MAZUR (AND HOW TO AVOID SOLICITORS BREAKING THE CRIMINAL LAW WHEN USING NON-QUALIFIED STAFF): 3rd OCTOBER 2025
The fallout, concern and – dare I say it – recriminations in relation to the decision in Mazur v Charles Russell Speechlys continues. There has been a lot of commentary already. This webinar aims to look through the “chatter” by concentrating…
ISSUING AN INJUNCTION MEANS “PROCEEDINGS” ARE UNDERWAY AND THE CLAIMANT HAS TO PAY THE COSTS AFTER IT WAS SET ASIDE: ALLOWING THE CLAIMANT’S ARGUMENTS IN THIS APPEAL WOULD BE AN “AFFRONT TO COMMONSENSE”
Here we look at an ingenious argument about the meaning of “proceedings” and the costs consequences if a claimant has an injunction order set aside. The claimant argued that the nature of the action he pursued did not amount to…
COST BITES 292: AN EXAMPLE OF THE TRIAL PREPARATION AND TRIAL PHASE BEING BUDGETED (OH – AND COUNSEL DOESN’T GET A REFRESHER FOR A JUDICIAL READING DAY)
We continue to look at the case considered in the previous post. Having made the point that the budget is not so much about hourly rates but about the reasonableness and proportionality of the figures as a whole the judge…
COST BITES 291: WHEN BUDGETING THE HOURLY RATES SOUGHT CAN BE TOO HIGH, BUT THE PHASE TOTAL REASONABLE
At the budgeting phase of a case there are often disputes as to the appropriate hourly rates. The response is, usually, that it is not the court’s task on budgeting to set the hourly rates but to consider the reasonableness…
THE “CONDUCT OF LITIGATION” CASE CONTINUED: WHY THE CIRCUIT JUDGE ERRED AS TO COSTS: FIXED COSTS APPLIED IN ANY EVENT
We are returning to a case we have looked at several times already. This time on the question of costs. Since the appellants were successful the costs order against them was overturned. However it was held that the judge erred…
MORE ABOUT WHO CAN PROPERLY “CONDUCT LITIGATION”: THE SUBMISSIONS OF THE LAW SOCIETY AND SOLICITORS REGULATION AUTHORITY: “TASKS MAY BE DELEGATED BUT CONDUCT OF THE LITIGATION MAY NOT”
As I said yesterday the matters discussed in the recent judgment about whether a fee earner can conduct litigation may have a widespread impact. It is important that litigators are aware of the views of the Law Society and the…
COST BITES 290: BARRISTERS TAKE CARE: ANOTHER REASON THE DBAS WERE INVALID – FAILURE TO INCLUDE COUNSEL’S FEES IN THE EQUATION…
We are continuing with our consideration of Damages-Based Agreements that were found to be unlawful. This time the judge considered the position in relation to counsel’s fees and the Regulations. The judge held that the attempt to charge counsel’s fees…
COST BITES 289: INVALID DAMAGES BASED AGREEMENTS MEANT THAT THE APPELLANTS COULD NOT RECOVER £1.3 MILLION IN COSTS (A BAD DAY OUT FOR THE LAWYERS INVOLVED…)
Today we are looking at a case where the appellants claim to £1.3 million in costs was lost because the Damages-Based Agreements were found to be unlawful and unenforceable. It provides a salutary lesson to all those who are involved…
COST BITES 288: IS IT REALLY GOING TO COST £39,967.50 TO HOLD A MEETING BETWEEN LAWYERS? (AND THERE WILL BE TEN OF THEM…)
Here we are looking at a substantial reduction in a budget. The claimants here sought £39,967.50 for each meeting of the solicitors co-ordinating group litigation. The court was not happy with this… (When you are claiming £39,967.5o a meeting for…
WITNESS STATEMENTS THAT COULD BE DRAFTED TO “POINT OF NEAR HOMOGENEITY” DID NOT IMPRESS THE COURT (AT THE COSTS BUDGETING STAGE – AND PROBABLY FAR BEYOND…)
Here we look at some interesting observations made about the process of drafting witness statements. The court was budgeting the process and considering an argument that there should be “numerous reviews and peer-reviews” during the process of drafting the statements….
COST (MEGA) BITES 286: AND YOU SAID THAT WITH AN “ADMIRABLY STRAIGHT FACE”: “OVERLAWYERING” CONSIDERED IN AN EXHAUSTING CASE
We are looking at a case that has already been subject to several posts on this site. In the previous decision about budgeting the claimants’ budgets were described as “absurdly high” and the arguments “strains all credulity”. The court is…
COST BITES 285: DOES THE COURT NEED TO VARY THE RECEIVING PARTY’S BUDGET WHEN IT HAS ORDERED THAT COSTS BE PAID ON AN INDEMNITY BASIS?
We are looking again at the award of indemnity costs. The judge ordered that costs be paid to the claimant on the indemnity basis. He then went on to consider whether, given that decision, it was necessary to retrospectively vary…
COST BITES 284: DEFECTIVE WITNESS STATEMENTS PLAY A PART IN A DECISION TO AWARD INDEMNITY COSTS: “DEPRIVING THE DEFENDANT OF THE USUAL RIGHT NOT TO PAY DISPROPORTIONATE COSTS, IS AN ENTIRELY PROPORTIONATE RESPONSE TO THE DEFENDANT’S CONDUCT OF THIS ACTION”
Here we look at a judgment where indemnity costs were awarded against an unsuccessful defendant. As we shall see there were a number of factors in that decision. However it is notable that, in both judgments, the judge commented on…
COST BITES 283: “A SIGNIFICANT NUMBER OF THE POINTS OF DISPUTE WERE DISMISSED”: NOT ENOUGH DETAIL, FAILING TO DISTINGUISH BETWEEN STANDARD AND INDEMNITY BASIS COSTS
We are looking at a different aspect of the case we have already looked at this morning. However the paying party in that case to some extent where the authors of their own misfortune. In particular the judge held that…
THE CIVIL LITIGATION BRIEF TOOLBOX SERIES 2: WHERE DO YOU LOOK WHEN FACED WITH AN ARGUMENT ON ASSESSEMENT THAT COSTS SHOULD BE REDUCED BECAUSE OF “PROPORTIONALITY”?
The principles considered here work for both sides. Where does a receiving party look when the paying party wants to reduce costs because of “proportionality”? Where does a paying party look to gain guidance on such issues. I am here…
COST BITES 282: PROPORTIONALITY OF COSTS CONSIDERED AFTER A LINE BY LINE ASSESSMENT: TAKE YOUR SEATS FOR A CASE ABOUT THE ALBERT HALL…
I am grateful to my colleague Paul Hughes for bringing my attention to this decision of the SCCO in relation to proportionality. It is a case where the paying party specifically raised proportionality as a further and specific issue after…
CIVIL PROCEDURE BACK TO BASICS 106: WHEN IS VAT ON LEGAL COSTS RECOVERABLE FROM THE OTHER SIDE ON ASSESSMENT?
Yesterday we looked at a case where a receiving party accidentally included a claim for VAT in a bill of costs. The error was noted, after being queried by the judge, however the judge went on to state ” I…
COST BITES 280: THE PERILS OF INCLUDING A VAT IN A BILL BY MISTAKE: THE COURT WOULD NOT DEPART FROM THE GUIDELINE RATES: NEVERTHELESS £202,000 ALLOWED ON ASSESSMENT FOR A ONE DAY APPEAL
We are looking at a case where the judge summarily assessed costs with no input from the paying party. The receiving party had made a mistake by claiming VAT (something only appreciated when the judge raised the question). There was…
COST BITES 279: COSTS AWARDED IN WHAT IS NORMALLY A “NO COSTS” JURISDICTION: THE FIRST TIER TRIBUNAL (PROPERTY CHAMBER)
It is worthwhile taking a look at cases where costs are awarded in cases where there normally would be no inter party order for costs. We look at such a case here, in the First Tier Tribunal. On appeal to…
DEFENDANT’S APPLICATION TO EXTEND TIME TO CHALLENGE COSTS PROVISIONS REFUSED: 21 DAYS WAS A SERIOUS AND SIGNIFICANT BREACH AND THERE WAS NO GOOD REASON FOR IT
Here we are looking at a case where the court refused the defendant’s application to extend time when the defendant wanted to challenge the argument that costs were capped. It was held that the defendant’s delay of 21 days was…
ATTENDANCE NOTES IN CIVIL LITIGATION 2025: WEBINAR 15th SEPTEMBER 2025
There have been at least three cases over the previous few months where attendance notes taken by solicitors have played a significant part in the outcome of a case, appeal or application. These notes protected a solicitor against complaints of…
COST BITES 278: HOURLY RATES OF £685(GRADE A) AND £420 (GRADE C) ALLOWED: A SUMMARY ASSESSMENT IN ACTION
One of the aims of this series is to look at how costs awards are being made in practice. What is happening “on the ground” is important, if not essential, knowledge for working litigators. Here we look at a summary…
COST BITES 277: WHEN A CLIENT CHALLENGES A SOLICITOR’S BILL BUT IS OUTSIDE THE TIME PERIODS FOR CHALLENGE IN THE SOLICITORS ACT: THE RESIDUAL ISSUE OF COSTS BEING REASONABLE AND THE COMMON LAW ASSESSMENT
Here we are looking at a case that reminds us that a client’s ability to challenge the reasonableness of solicitor’s costs can go outside the Solicitors Act. Even when the time for challenging the bill has passed the court can…
COST BITES 275: APPELLANT SUCCESSFUL IN PUTTING LOCAL AUTHORITY RECEIVING PARTIES TO THEIR ELECTION IN RELATION TO CCFAS
It may be a matter of comment when the suspicion arises that the costs of arguing about costs exceeds the initial costs in dispute. I suspect that may be the case in many cases in this series (indeed people have…
COST BITES 274: IN CONSIDERING WHETHER TO AWARD INDEMNITY COSTS HOW RELEVANT IS A DEFENDANT’S WITHDRAWN PART 36 OFFER? (THE CLAIMANT THAT TURNED DOWN $50 MILLION DOLLARS – AND THEN LOST AT TRIAL…
Here we look at a short judgment on costs. The judge considered whether an indemnity costs should be made and the date from which the indemnity costs order should take effect. There were several factors specific to this case, however…
COST BITES 272: CLAIMANTS ORDERED TO PAY SOME OF A DEFENDANT’S COSTS IMMEDIATELY, PRIOR TO JUDGMENT BECAUSE OF THE WAY IN WHICH THE TRIAL WAS CONDUCTED
Last week we had a judge discussing the “pay as you go” principle in litigation. Here we have a slight extension of that principle with the judge deciding that the claimants’ conduct of the the trial meant that they should…
COST BITES 271: THE INABILITY TO RECOVER COSTS DOES NOT REPRESENT A BREACH OF HUMAN RIGHTS: THE POWER TO AWARD COSTS HAS TO BE GIVEN BY STATUTE
We are looking at costs issues in a slightly unusual context. A decision of the Administrative Court on the issue of whether Parliament had given a body the jurisdiction to make a costs order. The judgment also considers some significant…
COST (MEGA) BITES 370 : WE WANT AN INTERIM PAYMENT ON COSTS OF £3.75 MILLION – BUT WE DON’T WANT TO GIVE A DETAILED BREAKOWN OF WHY: COURT OF APPEAL CONSIDERS THE ISSUES
It is rare for the Court of Appeal to give a detailed judgment on costs. It is even rarer for it to consider the principles relating to interim payments on account of costs. This is what we are looking at…
ANOTHER BATTLE IN THE MEDICAL AGENCY/BREAKDOWN OF COSTS WAR: SHOULD THE COURT ORDER A BREAKDOWN PRIOR TO ANY ASSESSMENT?
There have been numerous cases on the issue of whether there is a requirement to provide a breakdown of the invoice when an expert report has been provided via an agency. Here we another another judgment that considers the issue. …
PAYING BACK DAMAGES AND COSTS AFTER A SUCCESSFUL APPEAL: WHAT IS THE APPROPRIATE RATE OF INTEREST?
It is extremely painful, when a party has won at trial, to have to pay damages back after a successful appeal. The lawyers find it equally painful to have to repay costs. To rub salt into the wounds the successful…
COST BITES 269: CAN PRE-ALLOCATION COSTS BE AWARDED WHEN A CASE IS LATER TRANSFERRED TO THE SMALL CLAIMS TRACK? A CASE THAT CONSIDERS THE ISSUE
I am grateful to barrister Ethan Riley for sending me a copy of the transcript of the judgment we are looking at today. This relates to whether the court has power to award a party pre-allocation costs that are occurred…
COST BITES 269: WHAT COSTS ORDERS SHOULD BE MADE WHEN THE CLAIMANTS AVOID STRIKING OUT BY AMENDING THEIR PLEADINGS, BUT THE DEFENDANT OPPOSED THE APPLICATION TO AMEND? LITIGATION ON A “PAY AS YOU GO” BASIS
If ever a judgment showed how difficult litigation can be it is the costs decision we are looking at here. A defendant made an application to strike out a case on the grounds of inadequate pleadings. That application would, without…
COST BITES 268: NO STAY OF AN ORDER THAT A SOLICITOR RESPOND TO PART 18 QUESTIONS: A COSTS ASSESSMENT IN ACTION
It is always interesting when we get to see “round 2” of a decision in relation to an application and appeal. It is even more interesting when we see the costs orders made and the figures involved. This case has…
COST BITES 267: WHAT IS THE COURT’S APPROACH WHEN IT DETERMINES THAT A RECEIVING PARTY SHOULD NOT HAVE INSTRUCTED LEADING COUNSEL?
Here we have a consideration of what the court’s approach on summary assessment when it considers that leading counsel should not have been instructed. (Silk worms at work. They did not weave their magic when it came to the assessment…
COST BITES 266: WHAT DOES THE COURT DO IF THE COSTS ARE DISPROPORTIONAL AFTER A LINE BY LINE ASSESSMENT? A WORKING EXAMPLE
Here we look at a judgment relation to proportionality and the assessment of costs. The claimant’s costs had been substantially reduced after a three day assessment but the judge found that the total sum was still disproportional. The judge could…
EXPERT WATCH 9: FAILURES TO COMPLY WITH THE PRE-ACTION PROTOCOL AND TO INFORM THE EXPERTS OF THE DEFENDANT’S CASE COULD RENDER THE EVIDENCE “USELESS”: AN EXPENSIVE DAY OUT FOR THE CLAIMANTS’ SOLICITORS…
Here we look at a decision not about the conduct of experts but the way in which the experts were instructed and failure to comply with pre-action protocols. On the face of it this is a decision of major importance…
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