31.07.2013Scopema SARL v Scot Seat Direct Ltd.  EWPCC 37
Key areas: patents; CFA; CPR 45.21; success fee; Patents Court
This was a ruling on costs following a failed claim for infringement of a patent.
The Claimant accepted that it was liable for the Defendant’s costs, it submitted that there should be a discount to reflect issues on which the Claimant won.
The Court rejected this, stating that as a Defendant they no option but to raise defences, and the issues on which they lost were minimal.
As a result, the Defendant’s costs were assessed at £26,495, which was under the £50,000 total cap in place due to CPR 45, section IV.
The Court then turned to the Defendant’s CFA, for which a 100% success fee applied. The Court considered that on the facts the success fee was reasonable.
After applying the success fees, and various stage caps that applied, the Defendant was awarded £33,761 in costs.
30.07.2013Vava & Ors v Anglo-American South Africa Ltd.  EWHC 2326 (QB)
Key areas: party’s conduct; agreed costs; High Court
This was a ruling to determine costs arising from the Defendant’s successful application challenging jurisdiction.
The Claimant submitted that there should be no order as to costs because of correspondence which led to a contractual agreement, or because it would be unfair due to the contents of the correspondence. The Defendant submitted that it was entitled to 60% of its costs.
In December 2011 the Claimant stated that they had obtained ATE funding of £6 million in relation to the jurisdiction claim, and a few days later the Defendant responded asking them to cancel the policy, and if this was done they would not seek costs. The policy was then cancelled.
Based on contents of the correspondence as a whole, the Court held that there was no binding contractual agreement. However, it held that the Defendant had agreed not to claim any costs.
As a result, the Court ordered that there be no order as to costs.
30.07.2013Sud v London Borough of Ealing  EWCA Civ 949
Key areas: party’s conduct; unreasonable conduct; Court of Appeal
This was a second appeal against a ruling that a Claimant pay 50% of the Defendant’s costs resulting from a partially-successful claim for disability discrimination, which had been upheld on a first appeal. The Appellant also appealed the ruling that the main claim be dismissed.
The Appellant submitted that it was wrong to take into account her pre-claim conduct; the non-attendance of a witness; and her rejection of offers.
The Respondent submitted that the Appellant had abandoned certain claims at trial; and had failed to apply for permission to rely on an expert report.
The Court noted that the claims for race and sex discrimination had no “credible foundation”, and that the Appellant’s general conduct justified a costs order against her.
As a result, the award of 50% of the Respondent’s costs was upheld.
29.07.2013Webb v Solicitors Regulation Authority  EWHC 2225 (Admin)
Key areas: enforcement of costs; High Court
This was a hearing concerning enforcement of costs orders made by the Solicitors Disciplinary Tribunal.
The solicitor had been struck-off had been ordered to pay £20,000 in costs, subject to the leave for enforcement by the Tribunal. The SRA tried to enforce against him.
The solicitor accepted that the general rule applied, but that because of the type of proceedings, his means should be taken into account. He also submitted that the SRA’s practice was not to enforce costs orders where there was no prospect of them being fulfilled.
The solicitors had submitted documentation that he had no assets, which was not challenged.
Overall, the costs of £20,000 were awarded by the Court, but they held that it was not to be enforced without their permission.
24.07.2013Bulgrains & Co. Ltd. v Shinhan Bank  EWHC 2498 (QB)
Key areas: both parties win some issues; High Court
This was a trial on liability, which also dealt with the resulting costs issues.
The claim was unsuccessful, but the Defendant only won on 1 of its 3 defences.
The Defendant submitted that it should be entitled to all of its costs given that they had a successful defence.
The Claimant submitted that the failure of some defences should be taken into account when determining costs, and that it should only have to pay one-third of the Defendant’s costs.
The Court noted that the failed defences led to “an escalation of the volume of evidence”, as well as extending the trial from 1 day to 2 days and a separate judgment day.
The Court held that the Claimant’s percentage reduction was “too mechanistic and arithmetic”, but it also said that the Defendant’s suggestion of 85-90% of their costs being allowed was too high; while a 50:50 split would not be appropriate.
Overall, the Court held that the Claimant should pay two-thirds of the Defendant’s costs, on the Standard Basis.
24.07.2013Hammersmatch Properties (Welwyn) Ltd. v Saint-Gobain Ceramics and Plastics Ltd.; Saint-Gobain Abrasives Inc.  EWHC 2227 (TCC)
Key areas: Part 36 offer; CPR 36.14(1A); party’s conduct; High Court
This was a hearing to determine costs issues arising from a main action.
The Claimant had been awarded £1,058,768.00 at trial, including interest, which was more than the Defendants’ Part 36 offer of £1 million which was made in December 2011.
The Claimant submitted that while it only just beat the Defendants’ Part 36 offer, because of issues relating to disclosure is was unable to properly consider the offer at that time. Therefore, it should be awarded its costs in the normal way.
The Defendants submitted that the claim was exaggerated, and that the Defendants had won on various issues in the claim. They submitted that they should be awarded 40% of their costs.
The Court noted that it if was not to enforce CPR 36.14(1A) it would effectively be bring back the case of Carter v BAA which that rule overruled.
It noted that the Defendants’ offer was “too low”, and that the parties had attempted mediation. It also stated that the Defendants had not complied with the relevant Pre-Action Protocol, and that the Claimant had spent money on a specific issue unnecessarily.
Overall, the Claimant was awarded 80% of its costs on the Standard Basis.
22.07.2013AP (UK) Ltd. (a dissolved company) v West Midland Fire & Civil Defence Authority; Patel; Patel; Patel  EWHC 385 (QB)
Key areas: party’s conduct; non-party costs orders; High Court
This was an appeal by the Patels that they be subject to a Non-Party Costs Order, under s. 51 Senior Courts Act 1981, in favour of the Defendant.
The order resulted from a failed claim by their company (AP (UK)) which was struck-out as an abuse-of-process and res judicata. As a result of the Order, they had to pay 80% of the Defendant’s costs.
The Authority submitted that the Patels could only be liable for costs if they had caused them to be incurred, and it was an all-or-nothing decision, not a percentage one. The Patels submitted that the judge had ignored the fact they acted in good faith, and that the extra costs were caused by the Authority’s own actions.
The Court noted that the judge had failed to take into account the Authority’s failure to comply with the relevant Pre-Action Protocol, and so her decision should be reviewed.
As a result, the Court held that the Patels had to pay 50% of the Authority’s costs, not 80%.
16.07.2013R (on the application of TH (Iran)) v East Sussex County Council  EWCA Civ 1027
Key areas: Judicial Review; party’s conduct; Court of Appeal
This was an appeal against an order for costs made by the Upper Tribunal (Immigration & Asylum Chamber).
The parties had agreed by Consent Order that the Defendant’s original decision over the Claimant’s age was incorrect, but they could not agree costs.
The Upper Tribunal held that the Claimant took too long to accept the Defendant’s offer to re-consider his age, and so awarded no costs from the date of the offer.
The Claimant submitted that because they had agreed a Consent Order that the Defendant was wrong, he should be entitled to all of his costs.
However, the Court held that because there was no real difference between the Defendant’s offer and the Consent Order, the Upper Tribunal was correct.
09.07.2013HB v PB; London Borough of Croydon  EWHC 1956 (Fam)
Key areas: non-party costs orders; Wasted Costs Order; unreasonable conduct; High Court
This was a hearing over whether to make a non-party costs order against the local authority in a set of care proceedings.
The council had been ordered to prepare a report under s. 37 Children’s Act 1989, but had not done so to a sufficient standard.
Due to the council’s actions, it was alleged that the father had incurred wasted costs for an earlier hearing of £10,311.
The Court stated that the report was “of a poor standard”, and the writer had undertaken “limited enquiries” and there were “significant gaps”, which did “not begin to address” the issues. The writer stated, amongst other things, that she did not have training in the issues at stake (fabricated illnesses), and hadn’t made enquiries into the child’s health. At the hearing at which the report was considered the judge held that it did not “assist me materially”.
The council accepted that there had been problems in how they investigated the situation, and that they had not followed the relevant guidance.
The Court held that the council’s failures were “extensive” and had a “profound effect” upon the case.
As a result, the Court was ordered to pay the father’s wasted costs, and were summarily assessed in the amount claimed.
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