20.11.2015Vlamaki v Sookias & Sookias  EWHC 3334 (QB)
Key areas: Solicitor/Own client; interim bills; High Court
This was an appeal against a ruling in a solicitor/client assessment.
At first instance, it was held that the solicitors’ invoices were not statute bills as the retainer did not permit this, and so they were not being challenged 12 months after they were paid. It had also been held that this only applied to certain invoices, not all of them.
The solicitors appealed both rulings.
On appeal, it was noted that at first-instance the billing terms in the retainer had been held to be “ambiguous”. This was upheld on appeal, and so the appeal was dismissed.
However, it was also held that the ruling did affect all of the invoices, and so an application for assessment was premature.
13.11.2015Raftopoulou v HM Revenue & Customs  UKUT 630 (TCC)
Key areas: pro bono; Upper Tribunal
This was a ruling on costs arising from a main action.
Counsel for the successful Appellant had acted on a pro bono basis in the Upper Tribunal (“the Tribunal) and sought costs from the Respondents.
The Appellant submitted that the Tribunal had the power to award costs on this basis due to s. 25 Tribunals, Courts and Enforcement Act 2007.
The Tribunal held that it could only such power under this statute, as it was a “creature of statute” and lacked any inherent jurisdiction.
The Appellant also submitted that the history of the Tribunal and the basis for s. 25 (ensuring that Parliament didn’t specifically need to transfer powers from the High Court to the Tribunal) ensured that costs could be awarded.
The Tribunal rejected this argument, holding that s. 194 of the Act limited the effect of s. 25, and so pro bono costs could not be awarded. It did, however, hold that the Appellant’s submissions were “a powerful argument” in favour of the Tribunal having the power.
13.11.2015R (on the application of McMorn) v Natural England; Dept. Environmental, Food & Rural Affairs  EWHC 3297 (Admin)
Key areas: Part 45; Aarhus claim; High Court
This was a set of judicial review proceedings regarding a refusal of licences to shoot buzzards (an endangered species), which also dealt with costs issues.
The application failed, and so the Claimant was liable for costs. The issue was whether the claim could be classed as an “Aarhus Convention” claim, which would result in a costs-cap applying under CPR 45, Section VII and PD 45, para. 5.
The Defendants admitted that had a licence been granted it would be an Aarhus claim, but because it was a judicial review against the refusal of one, which intended to harm the environment, and not protect it, the Aarhus rules did not apply.
The Court noted that there was nothing in CPR 45 or the Aarhus Convention itself to justify such a distinction, as both sides would be seeking justice in environmental matters.
As a result, the Court held that the Convention did apply, and so the Defendants’ costs were limited to £5,000.00.
12.11.2015Otuo v Brierley  EWCA Civ 1143
Key areas: amendments; Court of Appeal
This was an appeal against an Order for costs.
At first instance, the Claimant issued an Application to amend his Particulars of Claim. It had been held that he had won on a limitation issue, but was ordered to pay 80% of the Defendant’s costs resulting from his dismissed, and make an interim costs payment of £20,000.00. The Defendant appealed the 20% reduction in his costs.
On appeal, the Defendant argued that the Judge was wrong to discount his costs, given the obvious issues that the Claimant faced under the Limitation Act.
The Court held that given the facts of the case and what the Claimant knew at the time, the Judge was wrong to find that the Claimant had succeeded in the limitation issue. As a result, the Defendant was awarded his costs of the Application.
11.11.2015Ong; Ong; Ong; Ong v Ping  EWHC 3258 (Ch)
Key areas: apportionment of costs; separate representation; High Court
This was a ruling on an issue arising from a main action, namely whether the Claimants should have instructed separate solicitors, where their costs were awarded on the Standard Basis.
The First Claimant was the other Claimants’ mother and all of the Claimants sought declarations in relation to a property.
The Defendant submitted that this was irregular and only one firm should have been instructed. The Claimants submitted that it was not irregular, and was entirely proper in the circumstances; that any such irregularity had been waived by the Defendant.
The Court noted that while there may have been a theoretical difference between the Claimants’ positions, on a practical level, they had the same interests, and they instructed the same Counsel for trial and there was no conflict between them.
The Court noted that while they were not joint Claimants, they were co-Claimants, but the Defendant took no issue at the time.
The Court held that it was not appropriate for the Claimants to have separate representation after a certain point in the proceedings, namely when they served a joint Pleading.
As a result, the Court ordered that both firms’ costs be allowed up to 20th November 2012, and after that point, the only costs to be allowed are those that would have been payable had only one firm been instructed.
11.11.2015Rallison v North West London Hospitals NHS  EWHC 3255 (QB)
Key areas: interim payment; High Court
This was a hearing to determine an interim costs payment.
The main action was a clinical negligence claim that was originally valued at £3.9 million, but only settled for £450,000.00 plus costs. The Claimant sought an interim payment of £574,000; the Defendant offered £250,000.00.
The Claimant served an N260 which claimed over £1.1 million, including a 100% success fee on profit costs, and an ATE premium of almost £107,000.00. The Claimant said that the interim payment sought was only 51% of the claim.
The Defendant submitted that the claim was disproportionate; that it would contain work that was not justified, and the Court should take into account the difference between the damages sought and eventual settlement sum.
The Court held that there was “an argument of real substance” that the total was disproportionate, even though there were significant causation issues; and that the time claimed seemed to be excessive.
As a result, the Court rejected an interim payment of £574,000.00. However, given the size of the ATE premium, the Court instead allowed one of £306,763.00.
09.11.2015Rayner v The Lord Chancellor  EWCA Civ 1124
Key areas: legal aid; Court of Appeal
This was a second appeal in relation to coverage under a legal aid certificate.
Mr Rayner was the Defendant to a set of legal aided proceedings, which had been dismissed. He had also been awarded his costs on the Indemnity Basis. He had been unable to enforce against the Claimant.
At first-instance, it was held that the certificate only covered the party for a specific time-period, and so any costs incurred outside the period were not covered. At the first appeal, the Court ruled that the certificate also covered costs “attributable” to work done while the certificate was in force, even if those costs were incurred after the certificate was no longer in force.
The parties’ positions were simply based on interpretation of the phrase “costs as is attributable…” in reg. 5(4) Community Legal Service (Costs Protection) Regulations 2000.
The Lord Chancellor submitted that the phrase meant “during which” the party was covered, and so was based upon timing. Mr Rayner submitted that the term meant “causation”, and had the Regulation meant to refer to a specific time-period, it would have done so. He also submitted that this was a fairer approach as there would always be a time-lag between the Claimant’s work and the Defendant’s response.
The Court noted that each party’s position was arguable, but the phrase “more naturally mean[t]” “‘during’” than “caused”; that the time-limit interpretation complied with other Regulations concerning legal aid; and that Mr Rayner’s position could lead to all costs in a set of proceedings being covered by a certificate, no matter how long after it was terminated.
As a result the appeal was allowed, and the Defendant was only allowed to claim costs from the Lord Chancellor that were incurred while the certificate was in force.
03.11.2015R (on the Application of Bedford Land Investments Ltd.) v Secretary of State for Transport; Bedford BC  EWHC 3159 (Admin)
Key areas: public inquiries; planning permission; High Court
This was a judicial review of a refusal to award the Claimant her costs against the local council.
The council had withdrawn an application for a Compulsory Purchase Order and Side Roads Order after the Claimant had incurred costs in objecting to them, but 6 weeks before a planning inquiry had taken place.
The Claimant submitted that under s. 5(4) Acquisition of Land Act 1981 and s. 250 Local Government Act 1972 she should be awarded her costs, given the phrasing of the Acts and Parliamentary intention.
The Court noted that a literal interpretation, the Claimant would not be allowed costs, and noted that subsequent amendments to the Acts have ensured that parties will be entitled to their costs in this situation. However, it held that the preparation for an inquiry was not part of the inquiry, and so the claim was rejected.
02.11.2015Hobbs v Guy’s & St. Thomas’ NHS Foundation Trust  EWHC B20 (Costs)
Key areas: proportionality; SCCO
This was an oral hearing resulting from a Provisional Assessment of costs.
The main action was a claim for clinical negligence that settled for £3,500.00 plus costs. The Claimant’s Bill of Costs totalled £32,329.12, which was reduced by two-thirds on grounds of reasonableness and proportionality, to £9,879.34. The main reductions were to the claim for hourly rates of £300.00, and a conference with Counsel.
The main action was originally funded by legal aid. Unfortunately, the Claimant subsequently died for unrelated reasons, and his estate were unable to obtain legal aid, they entered into a post-Jackson CFA.
At the hearing the Claimant argued for full rates on the basis that £300 was below the Grade A guideline rate for both City and Central London firms; that it was only 12.5% increase on the Outer London guideline; and that a Grade B fee earner would not have the experience to handle the claim. These arguments were rejected, and the provisional rulings of £200 and £210 per hour were maintained.
The Court also upheld a ruling that Counsel was instructed prematurely.
In relation to proportionality, the Court held that there were no issues on the pre-April 2013 work. However, it held that while the post-April 2013 costs were reasonable, the Defendant should not be liable for them as they were disproportionate. The Court also stated that the costs of preparing and checking the Bill should be excluded when considering whether they are reasonable.
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