30.03.2012Euroption Strategic Fund Ltd. v Skandinaviska Enskilda Banken AB  EWHC 749 (Comm)
Key areas: liability for costs; Basis of assessment; Indemnity Basis; High Court
The parties had agreed that the Claimant was liable for the Defendant’s costs, and so the issues were whether the Defendant’s costs should be reduced by 15%, given their refusal of mediation; and the basis of assessment.
The Court held that given that the Defendant had made a without prejudice offer to bear its own costs should the claim be withdrawn, and the lack of prospects of the claim, the Defendant’s costs should be awarded in full, and an interim payment of £1.25 million was awarded.
The Claimant submitted that their conduct did not justify an Order for Indemnity costs, and hindsight should not be used where a case is held to be hopeless.
The Court held that the claim was “highly speculative”; “grossly exaggerated”; “opportunistic”; “displayed very little regard to proportionality or reasonableness” and all issues were pursued “at full length”. It also stated that the claim involved “cherry-picking” share-trades which made it worse off, while ignoring those from which it benefited. It also noted that the claim went against the advice given by the Claimant’s own expert. As a result, the Defendant was awarded its costs on the Indemnity Basis.
28.03.2012Citation Plc v Ellis Whittam Ltd  EWHC 764 (QB)
The claim was struck-out on the grounds of an abuse of process because the Defendant had already given an unqualified undertaking not to repeat the libellous phrase, and the Claimant’s refusal to accept it was not “a legitimate aim of an action”. It also stated that once proceedings had been issued, there was nothing extra which the Claimant could gain.
The Defendant submitted that costs should follow the event, i.e. it should be entitled to its costs. The Claimant submitted that it should be awarded its costs up to the date of the Claim Form with no order for costs thereafter.
The Court stated that “there was already little incentive to the Claimant to pursue such a risky claim” given what the Defendant had already agreed. It also stated that as the Defendant was not held liable, it should not be liable for costs.
Overall, the Court held that the Claimant should pay the Defendant’s costs after service of the Claim Form., with no order for costs before that point.
15.03.2012Murray Construction Ltd. v Marino Family Trust Ltd.  EWHC 628 (TCC)
Key areas: security for costs; High Court
This was an application for security of costs.
Back in 1993, the Claimant was ordered to give security for costs of £32,000.00. It was not paid, and the proceedings were stayed as a result. The Claimant was then given permission to appeal, but did not follow through with the appeal.
The Claimant was struck-off the Companies Register in 1996, but was reinstated in 2005.
In 2011, the Claimant sought permission to carry on with the proceedings, which was granted on condition that the £32,000.00 was paid. This was done.
The case was listed for a CMC to deal with the Defendant’s Applications to strike-out the claim and for a further security for costs; and the Claimant’s Application to strike-out the Defendant’s Applications.
The Claimant submitted that evidence had come to hand since the original hearing which showed that the Defendant had “been the victim of a fraud perpetrated by the Defendant”.
The Court noted that the Claimant had been dissolved, had no assets, and was only reinstated to the Register for these proceedings. As a result, security for costs was justified.
The Defendant submitted that the Claimant had not provided any evidence that its claim would be stifled and that it had been almost 20 years since the claim started. It also submitted that in spite of the allegations now being made by the Claimant, it had not prepared a draft order nor had submitted amended draft Pleadings. It further submitted that there was no evidence that it was the cause of the Claimant’s financial status.
The court agreed with the Defendant’s submissions and Ordered the Claimant to pay a further security of £45,000.00.
15.03.2012R (Broom) v Secretary of State for Justice  EWCA Civ 275
Key areas: liability for costs; Court of Appeal
The Appellant had won permission to appeal.
Following the award of permission, the Respondent conceded the issue – the return of the Appellant’s photographs. The Parties then made a Consent Order dismissing the Appeal, but giving the Court discretion to determine costs of this point, which it ordered in the Respondent’s favour.
The Appellant submitted that he should be entitled to his costs of the Appeal and below, because he had obtained permission to appeal and had regained the photographs.
The Court held that the appeal was due to the Respondent’s actions, and so the Appellant was entitled to his costs of the appeal.
In relation to the costs below, while accepting that as a practical sense, the Appellant had won, because it was not clear whether the Appellant would have won the appeal itself, he should not be entitled to the costs at first instance. However, given the overall effect of the grant of permission to handing back of the photograph , the Court had that no costs should be awarded at first instance.
14.03.2012Harripaul v LB Lewisham  EWCA Civ 266
Key areas: liability for costs; Court of Appeal
The Appellant had won permission to appeal.
Following the award of permission, the Respondent conceded the issue. The Parties then made a Consent Order dismissing the Appeal; there to be no costs at first instance; but giving the Court discretion to determine costs of the appeal itself.
The Appellant submitted that she should be entitled to his costs of the Appeal, because she had obtained permission to appeal and the Respondent had conceded the issue in dispute.
The Respondent submitted that there should be no order as to costs, because where a public body settles a judicial review claim, it should not be taken as an admission.
The Court stated that the Respondent’s submissions attempted to reverse the general rule for costs, and their concession of the claim meant that the Appellant was successful.
As a result, the Appellant was awarded her costs of the appeal.
08.03.2012Murphy v Media Protection Services Ltd.  EWHC 529 (Admin)
Key areas: Basis of assessment; both parties win some issues liability for costs; High Court
This case was to determine costs resulting from the Appellant’s successful defence to both the Respondent’s claim for alleged breaches of copyright, and a related attempted prosecution.
The issue was over whether costs should be paid on a criminal or a civil basis; how the costs on the issues which the Respondents won should be assessed; whether the Respondent’s costs should be paid or simply off-set against the Appellant’s costs; and if the Appellant should receive an interim payment.
In this situation, the High Court has the power under s. 28A Senior Courts Act 1981 to award costs “as it thinks fit” on an appeal from a criminal court; while s. 51 allows the same in a civil case.
The Respondent submitted that costs should be paid out of central funds under s. 16 & 19 Prosecution of Offences Act 1985 and reg. 3 Costs in Criminal Cases General Regulations 1986, because it was a criminal matter. It also submitted that it should be entitled to its own costs out of central funds in relation to the prosecution under para. 2.6.1 Practice Direction (Costs in Criminal Proceedings)  1 WLR 2351.
The Appellant submitted that she should be entitled to her costs from the respondent, under the normal civil costs rules. The Respondent submitted that if civil costs were awarded, the Appellant should not be allowed any costs in the Magistrates or Crown Court of the original High Court case, because the issues of compatibility with EU Law were not raised. It also submitted that costs should not be awarded at all because she was not liable for costs at all, and the limit of her ATE policy would have been exceeded in any event.
The Court held that the case was brought by the Respondent to “protect a very substantial profit stream” and that it did not accept that a Prosecutor would have resisted a reference to the ECJ nor would they have stated that there was “no matter of EU law” which justified it.
As a result, it held the civil costs applied on the Standard Basis, and that the Appellant was entitled to 75% of her costs in the Magistrates and Crown Court and all of those in the original High Court hearing, including the reference to the ECJ, with an interim payment of £100,000. Due to this, the Respondent was not entitled to its costs. The Court also rejected the argument that the Appellant had not liability, because she was perfectly entitled to get funding from other parties.
02.03.2012Fisher Meredith LLP v JH; PH  EWHC 408 (Fam)
Key areas: Wasted Costs Order; party’s conduct; High Court
This was an appeal by the Solicitors against an Order for wasted costs in a set of divorce proceedings.
At first instance, the Solicitors’ conduct led to the postponement of a 5-day hearing, and was held to have had “improper, unreasonable or negligent conduct”, which justified an Order in favour of the Respondents.
The conduct which was alleged to have justified such a description, was not joining a third party to the proceedings in relation to property which could have been part of the divorce proceedings.
The Court held, however, that all parties – including the Respondents – had implicitly agreed not to join in the third party, and so it was “wholly untenable” to blame the Solicitors. If there was any blame, it was the Respondents who should be subjected to it.
It also held that the Respondents were to pay the Solicitors’ costs on the Standard Basis.
01.03.2012Joyce v West Bus Coach Services Ltd.  EWHC 404 (QB)
Key areas: Part 36 offer; Application to strike-out; High Court
This was an appeal against an Order to strike out the claim, due to him not complying with an “Unless Order”, and the impact that Order had upon the Claimant’s “acceptance” of the Defendant’s existing and Part 36 Offer one week later, which had not been withdrawn.
The appeal against the Order was itself rejected due to documentation being served out-of-time, on a strict reading of CPR 6.26, even though the Defendant acknowledged the documentation before the deadline. The Court also rejected the Claimant’s submission that the use of “claim” in the Order simply meant “Statement of case”, not the whole claim.
The Claimant accepted that had there been a final judgment under CPR 3.5 the Offer could not be accepted, but the Defendant had not made applied for such an Order.
The Defendant submitted that the claim ended when it was struck-out, given that CPR 36.11 referred to saying claims, which could not occur had it been struck-out. However, it accepted that should the claim be reinstated then the Part 36 Offer would remain open for acceptance.
The Claimant submitted that it had previously held that CPR 36 had “a carefully structured and highly prescriptive set of rules”, which made up a “self contained code”; that the offer had not been withdrawn.
The Court held that should a case be struck out it “is to all intents and purposes at an end”, even if a formal request under CPR 3.5 had not been made.
It stated that “by his own conduct” the Claimant’s case has been struck out, and the Defendant should not be penalised by allowing a Part 36 Offer to be accepted.
The Claimant also appealed for relief from sanction, on the grounds that the breaches of the “Unless Order” were minor; that liability had already been conceded; and that the Defendant had not been prejudiced. The Court agreed that, in the circumstances, relief from sanction should be granted.
As a result, the Claimant’s claim was reinstated.
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