31.07.2014Wagenaar v Weekend Travel Ltd. (t/a Ski Weekend)  EWCA Civ 1105
Key areas: Qualified One-Way Costs Shifting; Part 20 claims; Court of Appeal
This was an appeal over costs ruling, and the impact of the new Qualified One-Way Costs-Shifting (QOWCS) rules.
At first-instance the claim was dismissed (as was a Part 20 claim against a Third Party).
The claim was funded by BTE insurance and the Court held that the new CPR 44.13-44.14 applied to the claim, even though the Defendant’s Counsel acted on a CFA that pre-dated April 2013. As a result, while the Claimant was liable for the Defendant’s costs, they could not be enforced, nor could those of the Third Party.
The Defendant and Third Party both appealed.
The Defendant initially submitted that the new CPR was ultra vires, but after considering s. 51(3) Senior Courts Act 1981, the Court held that they were not.
The Defendant then submitted that it was unfair for the new Rules to be retrospective. The Court held that there is always a cut-off point and that there is no general rule that procedural changes are not retrospective. It also noted that none of the exemptions in CPR 44.17 applied, and so this point was also rejected.
The Defendant further submitted that its own Counsel’s CFA should be enforceable because it pre-dated the changes. However, this was also rejected because of the lack of applicable exemptions under CPR 44.17.
The Court then turned to the Third Party’s costs. It noted that the Part 20 claim had been defeated, and that there was nothing in the Jackson Report to suggest that QOWCS applied between a Defendant and Third Parties, or between co-Defendants. Therefore, the Court held that the usual rule applied.
As a result, the Court held that the Defendant was unable to claim its own costs, and had to pay the Third Party’s costs.
30.07.2014McLennan Architects Ltd. v Jones; Roberts  EWHC 2604 (TCC)
Key areas: security for costs; High Court
This was an application for security for costs.
The Court accepted that the Claimant was in financial trouble, and so the “threshold” for security has been met.
It also noted that coverage under the Claimant’s ATE policy had been withdrawn, given issues of fraud.
It then turned to the amount to be ordered.
The Court considered that while there were delays in issuing the application, they did not make any real difference, because the Claimant would have been aware of its likelihood.
The Court also noted that there was a discrete counter-claim, the costs of which would need to be extracted when determining security.
The Claimant also submitted that its claim would be stifled, but the Court rejected this, saying that there was no real evidence in support.
After considered the parties’ Costs Budgets, the Court held that the Defendants’ costs of the claim were £150,000, and so ordered security of £80,000, to be paid in instalments of £20,000. It also stated that if the instalments are not met, the claim would be stayed.
The Court also ordered that even though the Defendants only achieved a proportion of the £200,000 sought as security, the Claimant’s defence to it justified the Defendants being awarded the costs of the application.
30.07.2014Patel v Secretary of State for the Home Department  EWHC 501 (Admin)
Key areas: party’s conduct; Basis of assessment; Indemnity Basis; High Court
This was a claim for Judicial Review of the actions of an Immigration Officer.
The Claimant was awarded £110,000 for general damages and £15,000 for exemplary damages.
During the proceedings it was held that the Officer obtained evidence that had “unfairly and unlawfully obtained” and had an ulterior motive; that the Claimant had been bullied and intimidated; had faked admissions from the Claimant over her reasons for wanting to enter the UK.
Based on the conduct, the Claimant was awarded all of her costs of the proceedings on the Indemnity Basis.
30.07.2014Breyer Group Plc & Ors v Department of Energy And Climate Change  EWHC 2690 (QB)
Key areas: both parties win some issues; preliminary issues; High Court
This was a hearing to determine costs issues arising from a trial of preliminary issues.
The Claimants won and submitted that they were entitled to their costs. The Defendant submitted that costs should be reserved until after the main proceedings were determined.
The Court held that the Claimants were successful, and ensured that they will be entitled to damages of some sort, and this was why the Defendants fought the case, and “denied the entirety” of the claims. However, it stated that the Claimants did not win on all issues, and there losses “were not insignificant”.
As a result, the Claimant were awarded the costs of the preliminary hearing, but reduced to 80% to take into account their losses.
30.07.2014St. Christopher School (Letchworth) Ltd. v Schymanski; Rao  EWHC 2573 (QB)
Key areas: party’s conduct; Basis of assessment; Indemnity Basis; High Court
This was a trial which dealt with costs issues thereafter.
The main action was a contractual dispute for £23,231.10, with a counter-claim by the Defendants. The Claimant won on all issues, and so sought its costs.
The Claimant disclosed a Part 36 offer that expired on 27th October 2011, which they beat at trial.
The Claimant submitted that it should be entitled to its costs on the Indemnity Basis because the Defendants did not respond to the offer, and did not make their own offer; the Defendants refused an offer of mediation, until 1 weeks before trial; the Claimant was forced to obtain 3 Unless Orders against the Defendants during the proceedings; and the Defendants allegation forced the Claimant to obtain numerous witness statements.
The Court held that the Defendants raised “serious and unfounded allegations” against the Claimant and its employees; and the Claimant won on all issues, after making repeated attempts to settle.
As a result, the Claimant was awarded Indemnity Basis costs of both the claim and counter-claim from the expiry of the offer, with interest of 10% above base rate.
30.07.2014Poter v Glynn  CAT 13
Key areas: costs in Competition Appeal Tribunal; both parties win some issues; undetermined issues; unheard issues; Competition Appeal Tribunal
This was a ruling on costs resulting from a main action.
The main action was an appeal on 5 separate issues: the Appellant was successful on issue 5, but the other issues were not heard.
The Claimant submitted that it should be entitled to all of its costs because it was successful overall, and that its arguments and points were reasonable. It also submitted that documentation disclosed under issue 5 led to the Defendant’s concession of issues 1-3.
The Regulator submitted that there should be no costs because it acted as a “responsible regulator” in making its original decision, and should not be penalised for doing so.
The Defendant submitted that it should be liable for the costs of issues 1-4 because it was an Intervener to the proceedings; that the issues were not against any one party; and they have not been determined.
The Tribunal accepted that the Claimant won issue 5, and awarded costs, but because issues 1-4 were not heard, there should be no order for costs on those areas.
29.07.2014Leeds City Council v Revenue & Customs  UKUT 350 (TCC)
Key areas: relief from sanction; Upper Tribunal
This was an application for costs (and relief from sanction) resulting from a main action.
HMRC served their notice of application 4 working days after the deadline expired, and the Council sought to rely on the Court of Appeal ruling in Mitchell to oppose it.
The Tribunal noted that CPR 1(2)(f), dealing with compliance with Orders, is not replicated in the Tribunal Procedure (Upper Tribunal) Rules 2008.
Instead, it relied on the comments in the Court of Appeal’s ruling in Denton to ensure that minor issues such as this should not be reasons for on party to receive a “windfall” at the other’s expense. It also emphasised that Denton “is of equal application” to the tax Tribunals.
25.07.2014Durley House Ltd. v Firmdale Hotels plc  EWHC 2608 (Ch)
Key areas: both parties win some issues; High Court
This was a hearing to determine issues arising from a main action, including costs.
The main action was a rent dispute in which the Claimant was awarded £932,386.88 in its claim, and the Defendant was awarded £170,963.11 in its counterclaim.
The Claimant submitted that it should be entitled to 80% of its costs in both claims, to take into account issues that it lost.
The Defendant submitted that there should be no order on costs, given the Claimant’s losses and its own successful counterclaim.
The Court held that the Claimant was the overall winner, however, the Defendant manage to successfully defence large aspects of the claim, as well as winning its own claim.
Overall, the Claimant was 70% of its costs, up to 23rd December 2013. The Court also stated that costs from that date would be determined separately.
24.07.2014Dhillon; Dhillon v Sandhu  EWHC 3231 (Ch)
Key areas: relief from sanction; party’s conduct; High Court
This was an appeal against a refusal to allow relief from sanction.
The Defendant/Appellant filed an Acknowledgment of Service, but had otherwise not been involved with the proceedings.
Due to their lack of response, the Claimant issued an application for disclosure, and then for an Unless Order.
The Defendant only offered to make disclosure 6 weeks after the time limit under the Unless Order had expired. He then issued an application for an extension of time for disclosure, which was refused.
On appeal, the Court held that there was no real prospect of the appeal succeeding, and that the Defendant had not fully complied with the Unless Order. However, it held that by preventing the Defendant from taking part at all in the proceedings, the Judge had misunderstood the terms of the Unless Order, which simply referred to disputing liability, not quantum. As a result, relief from sanction was granted against this part of the ruling.
After considering the Defendant’s conduct, relief from sanction was refused again, and so the Defendant was unable to rely on any evidence in its own favour.
24.07.2014Cartus Corp.; Cartus Ltd. v Sidell; Williamson  EWHC 2492 (QB)
Key areas: both parties win some issues; party’s conduct; High Court
This was a hearing to determine costs resulting from a refusal of an application to extend an injunction in a libel claim.
The Claimant submitted that costs should be separated into 5 separate areas, given the facts of the case, and that they should have most of the costs up to the hearing given the Defendants’ conduct.
The Defendant submitted that the Court had criticised the Claimants’ conduct, and they tried to take advantage of their extra resources.
The Court held that overall the Claimants were entitled to 50% of their costs, because the Defendants only won due to the Amended Defence clarifying their position.
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