29.11.2013Forstater; Mark Forstater Productions Ltd. v Python (Monty) Pictures Ltd.; Freeway Cam (UK) Ltd.  EWHC 3759 (Ch)
Key areas: both parties win some issues; success fee; party’s conduct; discontinuance; High Court
This was a hearing to determine costs arising from 2 linked cases: the Claimants won one case; the Defendants the other.
The Court dealt with each case in turn.
In the first claim, while the First Defendant accepted that it was liable, because the Claimants issued an application to amend the Particulars to add the Second Claimant as a party, until that date costs are only claimable by the First Claimant. The Court held that while it did not dispute the Second Claimant could assume liability for any pre-existing costs, they should be held to “particular scrutiny” by the Costs Judge.
The Court also held that while the Claimants did lose some issues in its successful claim, they did not make any real difference to the work done as a whole.
The other claim was discontinued, which in principle entitled both Defendants to their costs of this claim.
The Claimants submitted that the First Defendant’s conduct led to the claim, and so the Claimants should be entitled to their costs up to the date of the defence. However, the Court noted that the claim was issued in spite of evidence showing this claim would not succeed, and so the Claimants had to pay costs.
The First Defendant submitted that its costs should be awarded on the Indemnity Basis, given how lacking in evidence and “speculative” the claim was. However, the Court held that the Claimants’ conduct did not justify this.
Overall, to take into account the First Defendant’s successes and the amount of work done to defeat the second claim, the Claimants’ costs were reduced to 52.5% from the date the Second Claimant was added as a party, on the Standard Basis. They were also awarded £133,000 as an interim payment.
However, the Court noted that the Second Claimant did not file a Notice of Funding, and so had to apply for relief from sanction.
The Court noted that there was no good reason for not doing this, and that even though the First Claimant had filed one, the First Defendant could not have consecutive knowledge of there being success fees. As a result, it was not allowed to claim a success fee from the start.
However, the Court noted that on 19th July 2012, the Second Claimant advised the Defendants in writing that a CFA was in place, and that the First Defendant admitted they would not have acted differently.
Overall, the Court held that a success fee could be claimed from the First Defendant on work done since 19th July 2012, but not before.
As for the Second Defendant’s costs, it submitted that it should be entitled to all of its costs on the Indemnity Basis, because no Pre-Action letter was served; the costs were always going to be disproportionate to its liability; that it was dragged into proceedings that dealt with other issues; and the First Defendant did not beat the Second Defendant’s offer at trial.
The Court noted that the Claimants’ pre-action correspondence did not quantify their loss, and their conduct generally justified an order for costs for the Second Defendant on the Indemnity Basis from 5th September 2012, which is the date of its offer to the First Defendant, with an interim sum of £190,000.
28.11.2013Evans v Arriva Yorkshire Ltd.  EW Misc 19 (CC)
Key areas: ATE; trade union funding; County Court
This was a hearing to determine whether a s. 30 Access to Justice Act ATE premium should be payable to the Claimant whose personal injury claim was backed by his trade union.
The Claimant had been awarded £2,250 plus costs as a result of an accident at work, and had claimed £3,500 for the premium.
The Defendant submitted that no premium should be awarded because there was no evidence that the union were at risk; that there was uncertainty as to whether the Claimant was entitled to BTE coverage; and that there was not enough evidence to justify how much should be awarded.
The Claimant submitted that there is no need for the union to set-aside specific sums; that it was “unrealistic” to expect the Claimant to fund the case himself; and that they had served witness statements in support of the amount claimed.
The Court noted that neither statement served by the Claimant showed how the risk, and therefore premium, was calculated. The Defendant’s statement went into detail and compared the amount claimed with similar premiums from other insurers and unions.
The Defendant submitted that the union had not made any “provision” as required by s. 30, and so a premium should not be allowed given the phrasing of the statute. However, the Court rejected this suggestion on practical grounds.
The Court then turned to arguments over BTE coverage, and noted that the Claimant simply went to his union’s solicitors.
The Claimant submitted that there has never been any requirement for a union-backed client to undertake BTE enquiries, but the burden fell on the solicitor.
The Court noted that a previous case (Peel v Beasley, Leeds County Court 3/12/2007) had held that it wouldn’t be unreasonable for a union-member to go to their solicitors, and because it would be disproportionate to adjourn the case to obtain evidence over whether BTE was available, the BTE argument was rejected.
As for the amount of the premium itself, the Court adjourned the hearing to enable the parties to submit evidence.
27.11.2013Mitchell v News Group Newspapers Ltd.  EWCA Civ 1537
Key areas: costs budgets; relief from sanction; Court of Appeal
The Claimant’s budget totalled £506,425, but because it was not filed 7 days before the CMC, and was only filed the afternoon before the CMC was held, his costs were limited to the Court fees that he would have to pay.
The Judge had held that there was no good reason for the Claimant not serving his budget in time, and that they had not attempted to discuss the issue with the Defendant’s solicitors. She also noted that the Defendant had served its budget without an issue.
On relief from sanction, the Claimant submitted that the new rules were for “low tolerance” of mistakes; not “no tolerance”, and to be limited to court fees was too much of a punishment. The Court held that the reasons for non-compliance were little more than work pressures, which was not sufficient.
On appeal, the Claimant submitted that it was wrong to invoke the new CPR 3.14 because it was not in force at the time, and so was done by analogy; that the budget was filed, albeit late; and the ruling was disproportionate.
The Court held that the Judge was allowed to take into account the new CPR 3.14 as part of the overriding objective and her general discretion. Also the parties were aware of the likely sanctions, and had lots of warning about them.
It also held that there was no difference between filing it at such a late stage and not at all; and that the sanction was justified, given that the Claimant’s actions meant the Judge had to vacate a ½-day case relating to asbestos-diseases.
The Claimant then submitted that a more proportionate sanction was for the budget to be reduced to 50%, but the Court said that the facts did not justify this.
Overall, the Court held that there was no good reason to support the Claimant’s actions, and the appeal was dismissed.
22.11.2013R (on the application of Newby Foods Ltd.) v Food Standards Agency (No. 4)  EWHC 3573 (Admin)
Key areas: both parties win some issues; Judicial Review; High Court
This was a hearing to determine costs arising from a successful application for judicial review.
The Claimant had won overall, but lost on one specific issue, which had led to a substantial amount of work being done.
The Court held that in the circumstances, the Claimant should be awarded 50% of its costs, but to pay its own costs relating to the lost issue.
However, the Defendant was ordered to pay costs relating to the costs hearing.
21.11.2013R (on the application of Hunt) v North Somerset Council  EWCA Civ 1483
Key areas: both parties win some issues; Judicial Review; Court of Appeal
This was a ruling to determine costs arising from a failed appeal over judicial review.
The Appellant submitted that even though he lost he should be entitled to his costs on the basis that he had won some substantive issues.
The Council submitted that it was entitled to its costs, because it won overall even though it lost on some issues.
The Court held that the appeal was “of no practical value” and was “always destined to fail”, and overall held that the Council was entitled to 50% of its costs.
19.11.2013Cody v Murray; Murray; Murray  EWHC 3448 (Ch)
Key areas: security for costs; High Court
This was an application for security for costs.
The application was made on the basis that the Claimant lives in Texas.
The Court noted that there would not be any issues in principle in registering a judgment in Texas.
The Defendant submitted that the Claimant’s assets would be covered under Texas law by various exclusions of up to $30,000. However, the Court was not persuaded by the Claimant’s evidence that he had no assets, and noted that his house would be outside the limit. It also noted that the costs of enforcement would not be much more than those costs within the EU.
The Claimant then sought to resist an order that he pay $30,000 in security, due to the existence of an ATE policy worth £106,000. The Court noted that the Claimant had not provided any detail as to the ATE, which would lead to the insurers avoiding the policy.
Overall, the Court held that it was reasonable to order security, which it made for $30,000.
15.11.2013R (on the application of Cherkley Campaign Ltd.) v Mole Valley DC; Longshot Cherkley Court Ltd.  EWHC 3558 (Admin)
Key areas: party’s conduct; both parties win some issues; retainer; High Court
This was a ruling on costs arising from a successful application for Judicial Review against the council over a grant of planning permission, and on a related interim injunction against the Interested Party.
The Defendant submitted that the Claimants should not be entitled to all of its costs because it lost some issues.
The Court held that the lose issues were “closely related” to the successful grounds, and had won overall by a large margin, and so it would not be fair to limit their costs.
However, any costs relating to the Pre-Action Protocol (PAP) letter were excluded because it was prepared on behalf of a party that was not involved in the claim, even though the successful party had been created solely for the claim. The Court noted that the successful party had been incorporated after the PAP letter had been served, and had no liability for the costs of the PAP letter, due to the lack of a retainer.
The Court noted that the Interested Party fought the interim injunction throughout, and had refused to postpone their actions. As a result, the Claimant was justified in issuing the application, and that the Interested Party should pay the costs.
15.11.2013BMG (Mansfield) Ltd.; BMG (Mansfield) Ltd Partnership v Galliford Try Construction Ltd.; Aedas Architects Ltd.  EWHC 3468 (TCC)
Key areas: both parties win some issues; party’s conduct; High Court
This was a hearing to determine costs issues arising from an application to amend the Particulars of Claim, which had been partially allowed.
The Court considered that the Defendants’ conduct had been “ill-judged and was generally over-aggressive”, and were in breach of the overriding objective. It also noted that while some of the amendments were due to the Claimants actions, others resulted from the Defendants’ lack of response to the Claimants’ initial correspondence. However, some of the Defendants’ opposition was justified given that some amendments were not allowed.
Overall, the Defendants were ordered to pay 50% of the Claimants’ costs of the application.
04.11.2013Simpson; Blades; Herath; Down (t/a Harrow Solicitors & Advocates) v Godson; Thirumahal; Gopalan  EWCA Civ 1339
Key areas: both parties win some issues; Court of Appeal
This was an appeal against various first-instance rulings, including an order for costs.
The Second Defendant had been ordered to pay all of the Claimants’ costs relating to a successful application for summary judgment.
It was submitted that this included the costs of issues not raised against her, and those on issues that she won.
The summary judgment application related to a claim for fraud against the First Defendant, but there was a separate application over whether the Second Defendant had knowingly helped with the fraud.
At the end of the trial, the application against the Second Defendant was withdrawn because there was a good chance that it would be defeated, but the Judge held that she was jointly and severally liable for the First Defendant’s conduct.
On appeal, the Court held that the original costs order was “too broad”, and was reduced to make her liable for 25% of the costs of the applications.
04.11.2013Shearer; Dawes; Capital Cash Ltd.; Jade Investments Worldwide Ltd. v Spring Capital Ltd.; Trustees of the Tenon Group SIPP – RC Thomas TGS0057; Trustees of the Tenon Group SIPP – SJ Thomas TGS0059  EWHC 3373 (Ch)
Key areas: Application to strike-out; issue-based costs orders; High Court
This was a hearing to determine costs issues arising from interim applications.
The Claimants had won an application for an interim injunction against the Defendants, and the Defendants had lost their own application for the parts of the Particulars of Claim to be struck-out, and for summary judgment on the claim itself.
At the original hearing the Judge considered that costs should be in the case, but at this hearing the Claimant submitted that they should be entitled to their costs of both applications. The Defendants submitted that Judge’s initial view had been correct.
The Court noted that there was a large overlap between the evidence and legal arguments on the applications and that likely to be used at the main trial; and that there was a large overlap between the two applications. In addition, it considered that the outcome of the applications had helped to focus the parties’ positions and the proceedings as a whole.
Overall, it held that the Claimants were entitled to their costs relating to validity of the nature of the contract being disputed; effectively an issue-based order.
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