23.12.2010Wilton v The Youth Justice Board  EWHC 90188 (Costs)
Key issues: “assisting the Coroner”, incidental to the proceedings, Inquests, jury deliberations
This case was a preliminary issue over costs which were claimed in relation to attending an Inquest.
The parties had agreed that any costs which were classed as “assisting the Coroner” had to be disallowed because they did not help in the subsequent civil claim.
The Defendant submitted that the final eight days of the Inquest were not related to the civil claim, because they did not related to “evidence gathering” and so not recoverable, while the Claimant submitted that all eight were related.
The Court held that all eight days were recoverable because they are given the opportunity to make submissions for the questions to be put to the Jury and to ensure that the Coroner is legally-correct in his summing-up. The Court also held that it was reasonable for them to attend Court on each day because the Jury may return to ask questions of the parties while they making their decision and that it was reasonable to claim for attending the Verdict because it could help determine the prospects of any civil claim.
21.12.2010Huscroft v P & O Ferries Ltd.  EWCA Civ 1483
This was a second appeal against an order that the Claimant pay £5,000.00 into Court, as security of costs, else the claim would be struck out.
The main action was a claim for personal injury against the Claimant’s employer.
The original Application was made on the grounds that the Claimant’s case did not have any reasonable prospects of success and the Claimant’s Solicitors – who were acting on a CFA without ATE insurance – had informed the Defendant that there would not be any real prospect of them enforcing any costs order.
The Order itself was made on the grounds that the Claimant had “played fast and loose with orders” and Court was critical of his conduct. However, on Appeal this was not considered to be a sufficient ground on the facts of the case.
The Claimant had also appealed the amount of the security of costs order, and that although the security order was set aside, the Court stated that had it not been, the sum was reasonable in the circumstances.
16.12.2010HM Revenue & Customs v Blue Sphere Global Ltd.  EWCA Civ 1448
Key issues: costs vs HMRC, Court of Appeal, Part 36 offer
This case was concerned with whether a Part 36 offer could be enforced in proceedings on appeal from a Tribunal.
It was held that the CPR did not prevent a Part 36 offer against HMRC and so it was valid. Due to the Claimant beating the offer at Trial, Indemnity costs were awarded after its expiry.
The Court also emphasised that there is a difference under CPR 36.14(1) between a Claimant’s Part 36 offer, and that of a Defendant, in that a Claimant is forced to continue if their offer is rejected.
15.12.2010Pankhurst v (1) White; (2) Motor Insurers Bureau  EWCA Civ 1445
Key issues: CFA, Court of Appeal, Part 36 offer, RTA, success fee
The Solicitors acted on a CFA which was entered into after obtaining judgment on liability., stating that there would be a 22.5% success fee if the case settled and 100% if it went to trial.
Early on the Claimant made a Part 36 offer which MIB rejected. After the liability judgment, MIB made a Part 36 offer which too was rejected.
At Trial the Claimant failed to beat the MIB’s offer, but obtained more than his original offer. Therefore, the Claimant was allowed his costs on the Standard Basis until his offer expired; Indemnity costs until the MIB’s offer expired and MIB were entitled to their costs from then on. The Judge also refused to allow interest.
On appeal, the judgment was upheld and, notably, the Court labelled the CFA as being “grotesque” given the complete lack of risk when it was taken out.
In any event, the Claimant would not actually have to pay any costs because he had taken out an ATE policy in the period covered by his own award for costs, so the MIB effectively paid to receive its own costs.
09.12.2010In re Capitol Films Ltd. (in administration): Rubin & Lan (Joint Administrators of Capitol Films Ltd.) v Cobalt Pictures Ltd. & 24 Ors  EWHC 3223 (Ch)
Key areas: party’s conduct; basis of assessment; Indemnity Basis; High Court
The first Application was issued by the Administrators to dispose the company’s assets that had been subject to fixed charges. However, the Administrators did not seek to inform the secured creditors prior to issuing it.
The secured creditors successfully resisted the Application, but the Administrators submitted that costs should not be awarded because they took a commercial decision on a company in administration. However, the Court rejected this stating that their actions could not be classed as “rational or reasonable” and that the Application was “misconceived”. In the circumstances, the Court held that their conduct justified an Order for Indemnity costs.
The Court also held that as a result, the Administrators were not entitled to recover their costs from the company’s assets in relation to this Application.
The second Application was issued as a result of the Administrators giving permission for a secured creditor to appoint a Receiver, but withdrawing the permission without reason the following day. Again, the Administrators lost this Application.
The Court noted that the Administrators did not attempt to justify their actions, even though they were invited to do so.
The Court held that the costs of this second Application should also be assessed on the Indemnity Basis, again due to the Administrators’ conduct and that the Administrators would not be allowed to recover their own costs from the company’s assets.
Thomas Legal Costs
12 Token House Yard
DX 138752 CHEAPSIDE
18 Park Street
T: 020 7073 2600
F: 020 7073 2955