19.05.2010James v The Royal Society for the Prevention of Cruelty To Animals  EWHC 1642 (Admin)
Key areas: private prosecutions; criminal; lack of means; High Court
This was an appeal in relation to a conviction over offences related to animal cruelty. The Respondent had been awarded their “costs”, including their legal costs in the sum of £2,250, under s. 18(1) Prosecution of Offences Act 1985.
The Magistrates Court – which convicted the Defendant – did not make an Order for costs under s. 18 (13) Prosecution of Offences Act 1985 because the RSPCA had stated their intent to obtain their costs in civil proceedings under s. 41(3) Administration of Justice Act 1970.
On Appeal to the Crown Court, it was accepted that the Defendant was unable to pay the “costs” at that point in time, but because she had an equitable interest in a property an order for costs was made.
The Appellant then appealed to the High Court over the refusal of the order under s. 18(13), but this was rejected because of the lack of means for the foreseeable future.
However, due to the interest in property –which could be sold in the future – it was held that it was appropriate for the RSPCA being entitled to their costs.
11.05.2010LXM v Mid Essex Hospital Services NHS Trust  EWHC 90185 (Costs)
Key issues: ATE, CFA, Legal Aid, SCCO, success fee
The main action was a claim for clinical negligence brought on behalf of a child who was born with cerebral palsy.
For the first 9 years of the claim, the Claimant was legally-aided before taking out a CFA in 2006 with a 100% success fee.
The case was dealt with by 3 separate sets of solicitors: the first were entirely covered by Legal Aid; the second by Legal Aid then the CFA; and the third entirely by a further CFA.
Liability was contested and the claim was listed for a split-trial. However, liability was conceded four days before trial, and so judgment was entered. The claim eventually settled for £3.7 million.
Four Bills of Costs were served: one each for the first and third Solicitors with separate “quantum-only” and “liability-only” Bills for the second Solicitors.
The costs in relation to the first Solicitors were agreed, other than interest, as were the base costs of the second and third Solicitors.
On the facts of the case it was held that it was reasonable for the Claimant to discharge the Legal Aid certificate and enter into the CFA given the amount of advice the Solicitors obtained and provided, including from Counsel; and given that the Claimant would face less irrecoverable costs under a CFA, due to the amount of forms and documentation which the Legal Services Commission require and are irrecoverable inter partes. The ATE premiums were also held to be reasonable.
The Court held that given that the base costs had been agreed, it could be inferred that they must be reasonable and proportionate, and suggested that even if they had not been agreed would have held that they are proportionate.
The success fees for the second Solicitors were reduced to 67% and to 33% for the third Solicitors, with Counsel being allowed a 100% success as claimed because it pre-dated the liability judgment.
The Court also awarded interest on the costs.
06.05.2010In re the Ocensa Pipeline Group Litigation: Arroyo v BP Exploration Co. (Colombia) Ltd.  EWHC 1643 (QB)
Key issues: ATE, disclosure, Group Litigation Orders, High Court
This case was concerned with whether the Claimants’ ATE policy should be disclosed in a Group Litigation action.
The Court rejected disclosure of the policy because it was individually negotiated – and so covered by privilege, because disclosure would give the Defendant an idea of the prospects of success – and also because it did not cover issues covered by standard disclosure obligations.
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