Date  Headline

  • 20.05.2014
    AVB v TDD [2014] EWHC 1663 (QB)
    • Key areas: both parties win some issues; party’s conduct; High Court

      This was a hearing to determine costs arising from a main action.

      The Claimant had managed to obtain an injunction, and had obtained most of what he sought.  The Defendant submitted that the injunction was much less than what was sought, and he had also failed on the claims for breach-of-contract and harassment, while the Defendant had succeeded on a counter-claim.

      The Court held that the Claimant only won a minor part of the claim, and the Defendant had obtained more.

      The Court also held that while it considered that both parties had lied, this was a more serious finding against the Claimant who was a solicitor.  It also sated it was unreasonable for the Claimant to make the claims for contract and harassment.

      Overall the Court held that the Claimant was entitled to its costs up when he obtained the injunction; that there should be no costs from that date up to when the Defendant made an offer to settle; and the Defendant was entitled to its costs thereafter.

  • 19.05.2014
    Hallam Estates Ltd.; Stainer v Baker [2014] EWCA Civ 661
    • Key areas: extension of time; default costs certificate; Court of Appeal

      This was an appeal from a Detailed Assessment.

      The Claimant lost a defamation claim and the Defendant sought costs.

      The Bill was served with a N252 but after the 3-month time-period.  The Claimant sought an extension of time for service of Points of Dispute a week before they were due, and gave reasons, but it was rejected.

      The Claimant made a formal application to extend time and it was issued before a Default Costs Certificate was issued.

      The application was allowed, but then Defendant applied to get it set-aside.  The Defendant’s application was rejected, and Points were served.

      The Defendant appealed, and was successful, and the Points were struck-out with a Default Costs Certificate being issued.

      The Claimant appealed against this Order.

      The Court held that the Claimant issued the application in time, and it was granted in accordance with the Overriding Objective.

      As a result, the Claimant’s application was allowed and the Default Costs Certificate was set-aside.

  • 15.05.2014
    Bright v Motor Insurers’ Bureau [2014] EWHC 1557 (QB)
    • Key areas: CFA; success fee; RTA; High Court

      This was an appeal over the success fee allowed in an RTA that settled for £1.6 million + £230,000 per year.

      The solicitors acted under a CFA with a two-stage success fee: 50% if the case settled 3 months before trial; 100% thereafter.

      Liability was disputed throughout by the MIB and after the CFA was entered into, the other driver’s insurance was voided. The claim settled 5 days before trial.

      At first instance, a 30% success fee was allowed.

      The Claimant appealed submitting that it was wrong for the Judge to use the fixed 12.5% success fee given the quantum as a comparison.

      The Defendant stated that they had sought the Claimant’s risk assessment, but it had not been disclosed. The Judge had asked the Claimant to disclose its file notes, but these had also not been disclosed.

      The Defendant submitted that there was little chance of primary liability not being established: the accident was a driver hitting a stationary pedestrian. It was mainly an issue of potential contributory negligence. As a result, the 30% success fee was correct.

      The Court held that on the facts, a 30% success fee was correct.

  • 14.05.2014
    Finglands Coachways Ltd. v O’Hare [2014] EWHC 1513 (QB)
    • Key areas: proportionality; High Court

      This was an appeal from a Detailed Assessment on costs.

      The Defendant’s Bill totalled just over £60,000 against a claim of at least £3 million that was discontinued 11 days before a 2-day trial on liability.

      The Claimant had not raised proportionality in its Points of Dispute, but the Judge considered whether items were necessary to incur instead of whether they were simply reasonable.

      The Court held that given the context the Judge was not wrong to use the word “necessary”, and that its usage was always combined with “reasonable”.  As a result, the appeal was dismissed.

  • 14.05.2014
    Cutting v Islam [2014] EWHC 1515 (QB)
    • Key areas: both parties win some issues; party’s conduct; High Court

      This was a hearing to determine costs arising from a main action.

      The Claimant had sought £1.5 million but due to liability had only obtained a judgment of £50,000.

      The Claimant submitted that before 23rd January 2014, the Defendant had only offered discontinuance on a drop-hands basis, not actual offers.  On 23rd January, the Defendant offered £100,000 including costs, while the Claimant offered £100,000 plus costs.

      The Defendant submitted that the Claimant had only obtained 3% of her claim, and that the claim only succeeded due to a Re-Amendment to the Particulars of Claim.  As a result, the Defendant submitted it was entitled to all of his costs to that point, and that the all-inclusive offer was reasonable.

      The Court held that the Re-Amendment did not substantially alter the parties’ positions, and that given the Defendant’s offers she had no option but to carry on to trial, at which she was the successful party.

      However, then the overall outcome and need for the Re-Amendment, the Claimant was only awarded 75% of her costs.

  • 14.05.2014
    Burrett v Mencap Ltd. [2014] EW Misc B50 (CC)
    • Key areas: Part 36 offer; County Court

      This was a hearing to determine the impact of a variation to a Part 36 offer.

      In July 2013, the Defendant made a Part 36 offer, which the Claimant did not accept. In January 2014, the Defendant advised the Claimant in writing that in accordance with CPR 36.3(6) the terms were changed. The Claimant accepted the varied offer, but not within 21 days.

      The Court considered that there were two possible situations: that the Defendant is entitled to make a change, but was unsure if it should have the protection of the original offer; and that the Claimant was entitled to a time-period to consider the new offer.

      It noted that there was no reference in the CPR to when the usual 21 days for acceptance applies in the situation, nor was there any other authority in caselaw.

      However, the Judge felt “constrained” by the CPR, and held that the time for acceptance ran from the date of the original acceptance.

  • 13.05.2014
    Berrier v Revenue & Customs [2014] UKFTT 457 (TC)
    • Key areas: party’s conduct; unreasonable conduct; costs against Solicitors; First-Tier Tribunal (Tax)

      This was an appeal to the First-tier Tribunal, which the Appellant lost.

      Under r. 10 Tribunal Procedure (First-tier Tribunal)(Tax Chamber) Rules 2009, costs can be awarded due to a party’s conduct.

      The Tribunal noted that the Notice of Appeal had been signed on behalf of a “Legal Representative”, even though the party signing was not a solicitor, nor authorised to conduct litigation.  However, HMRC were not prejudiced, and so this was waived, but held that this was “misrepresentation” and had inconvenienced the Tribunal.

      It also held that the Appellant had been unreasonable in brining the appeal.

      As a result, HMRC was given permission to make an application for costs, with the option of seeking costs against either the Appellant or his representative.

  • 09.05.2014
    R P Baker (Oxford) Ltd. v Revenue & Customs [2014] UKFTT 420 (TC)
    • Key areas: unreasonable conduct; First-Tier Tribunal (Tax)

      This was an application for HMRC’s costs.

      The Appellant withdrew its appeal two days before trial.

      HMRC applied for its costs the day after, but did not include a costs schedule.  One was eventually served, but 3 days after the relevant deadline.

      The Appellant submitted that costs should not be awarded due to the breach, and submitted that it was prejudiced as a result.

      The Tribunal held there was no prejudice given the short delay and the fact that costs had been applied for the day after the appeal was withdrawn, and allowed the application in principle.

      HMRC then submitted it should be entitled to its costs on the basis of unreasonable conduct.

      The Tribunal held that given issues with disclosure of documentation, and a subsequent ruling from the Supreme Court, the appeal was unreasonable from January 2013.

      As a result, HMRC was awarded costs.

  • 08.05.2014
    Saigol v Thorney Ltd. (t/a Thorney Motorsport) [2014] EWCA Civ 556
    • Key areas: parties’ offers; both parties win some issues; Court of Appeal

      This was an appeal against an order for costs in a main action.  The Claimant had obtained a judgment of £745; the Defendant a judgment of £345 in his counter-claim.

      The Claimant had been ordered to pay the Defendant’s costs from 1st April 2012 on the Standard Basis.

      The Claimant appealed on the grounds that the Defendant’s offer had only been open for 22 hours, and was not a Part 36 offer, and that he was unable to consider the offer before it expired because he was in hospital.

      The Claimant also submitted that he had beat both of the Defendant’s other offers, and sought an order that the parties bear their own costs.

      The Defendant submitted that the Judge was aware that the offer of 8th March 2012 was not a Part 36 offer, but exercised his discretion.

      The Court held that the transcript showed the Judge had not considered the offer of 8th March 2012, and that the time-limit suggests it was for tactical reasons only.

      As a result, the appeal was allowed, with the no order as to costs being made.

  • 08.05.2014
    Maclaverty Cooper Atkins v The Lord Chancellor [2014] EWHC 1387 (QB)
    • Key areas: Legal Aid; Very High Costs Cases; High Court

      This was an appeal against a ruling of a Costs Judge.

      The main action was a criminal case, funded by legal aid.

      The solicitors had applied for the case to fall under the “Very High Costs Case” scheme, given the likely length of the trial and volume of evidence required.  It subsequently transpired that the Prosecution had withheld evidence, which led to a trial collapsing.

      The LSC refused the application.

      The Costs Judge agreed that the LSC had wrongly refused the application, but was bound by a High Court decision.

      On appeal, the Court agreed with the ruling that the LSC was wrong, but based on the terms of the relevant statutes, the previous High Court rulings were correct, and the solicitors were not entitled to further payment.

      However, the Court suggested that the Lord Chancellor should make an ex gratia payment to the solicitors, given the facts.

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