29.12.2011LB Hillingdon v Neary; Neary  EWHC 3522 (COP)
Key areas: Basis of assessment; party’s conduct; Court of Protection
The First Respondent submitted that given the Appellant’s conduct, he should be entitled to 1/3 of his costs from issue up to the date of the first hearing; ½ of his costs from then until the second hearing; and all of his costs thereafter. He also submitted that he should be entitled to receive all of his costs resulting from the Appellant’s dealings with the media. The First Respondent also submitted that he his costs should be awarded on the Indemnity Basis.
The Appellant submitted that the majority of the costs would have been incurred in any event and so any costs should only be awarded on the Standard Basis. The Appellant submitted that any costs should only be allowed from the second hearing until the parties’ meeting of 9th June 2011.
The Court held that in the circumstances, an award for costs was justified, given the Appellant’s conduct. However, it held that they should only be awarded from the date of issue until the hearing in May and are to be assessed on the Standard Basis, and that no costs relating to the media should be awarded because it was in the general public interest for such coverage to take place.
22.12.2011Natas Group Ltd. (In Administration) v Styles & Wood Ltd.  EWHC 3464 (TCC)
Key areas: security for costs; High Court
The Defendant in this matter issued an application for security for costs up to trial.
It was agreed that due to the Claimant’s financial situation there was discretion to make such an order.
However, the Claimant submitted that a further order for security – in addition to one previously made – would stifle the claim; that the counter-claim should be taken into account; that ATE was in place; that their financial situation was due to the Defendant’s actions; and the amount sought was excessive.
The Defendant submitted that there was no evidence that the claim would be stifled; that the counter-claim was due to the nature of the defence; that the ATE did not cover much; and that costs have been increased due to the Claimant’s actions.
The Court noted that the ATE was provided from a company based in Lichtenstein and that the premium was almost half of the indemnity level.
The Court held that the claim would not be stifled; that the counter-claim was simply the amount which has is stated as being overpaid to the Claimant; that the Claimant had claimed £3 million, but their own expert evidence disputed this; and that it was concerned whether the ATE policy would in fact be enforceable and would cover the Defendant’s costs.
Overall, the Court ordered that a further £36,000 should be paid into by way of security, which brought the total paid into Court to £180,000.00. The Claimant also had to pay 75% of the Defendant’s costs of the application.
21.12.2011Everything Everywhere Ltd. v Office of Communications (Termination charges: 0845 and 0870 numbers)  CAT 45
Key areas: apportionment of costs; costs in Competition Appeal Tribunal; Competition Appeal Tribunal
This was a judgment dealing with costs issues arising from the unsuccessful appeal brought by the Appellant.
The OFCOM submitted that it was entitled to all of its costs which related to the Appellant. Some of these solely related to the Appellant while other overlapped with other parties.
The Appellant submitted that there should be no order as to costs on the grounds that the general rule in the Tribunal is the parties bear their own costs; that they were more of an Intervening Party in the proceedings; that their own case involved an important point of principle; and that their own case was small in the overall context and in fact helped deal with issues which occurred in the other parties’ cases.
The Parties agreed that the costs specific to this Appellant were 20% of the total costs.
The Tribunal rejected the submissions stating that OFCOM won; that its own appeal meant that it could not be an Intervening Party; and that while it did help resolve issues with the other parties, it was not a reason for OFCOM to have to bear any extra costs.
21.12.2011Convatec Ltd.; Convatec Technologies, Inc.; Convatec, Inc. v Smith & Nephew Healthcare Ltd.; Smith & Nephew PLC; Specialties Fibres & Materials Ltd.; Law  EWHC 3461 (Pat)
Key areas: both parties win some issues; party’s conduct; High Court
The costs claimed by the Defendants totalled £6.6 million.
The first section of costs concerned a discontinued claim for a breach of confidential information. The Claimants submitted that costs could have been reduced had the Defendants disclosed evidence sooner and explained how the apparent similarities between the parties’ products came about. The Defendants submitted that this issue was dropped as it was going to fail in any event; and that the Claimants didn’t check their own patents prior to issuing the claim, which would have alerted them to the issues. However, the Court was not satisfied that there was sufficient reason not to award the Defendants their costs of this issue. It also rejected a similar submission based upon the conduct of the Fourth Defendant.
The Claimants then submitted that there were issues regarding duplication of work claimed by the First and Second Defendant, which had in fact been done by the Third Defendant. The First and Second Defendants submitted that such a ruling would prejudge the Detailed Assessment process. They also submitted that they undertook a lot of work which helped out overall, including reviewing over 40,000 documents, which led to the disclosure of 550 documents and that this was not disputed at the time. The Claimant submitted that costs were payable on the Standard Basis and the Court should draw its attention to work done as a whole and has the power to limit costs were necessary. The Court stated that costs should not be limited in such a fashion and that this was more appropriate for a Detailed Assessment.
The third area concerned the First and Second Defendants’ costs over a trade mark dispute, which was settled without liability, but led to the Defendants changing brochures they had prepared. They submitted that had the Claimants complied with the Pre-Action Protocol, costs would have been saved. The Claimants submitted that they won this issue, and so should be entitled to the costs. The Court held that both parties raised good points, and so made no order as to costs on this issue.
The First and Second Defendants were also awarded and interim payment of £500,000.00.
21.12.2011Liberty Insurance PTE Ltd. & Anor v Argo Systems FZE  EWCA Civ 1615
Key areas: both parties win some issues; summary assessment; Court of Appeal
This was a hearing to determine costs arising from a successful appeal against a term of an Order.
The Appellant claimed its costs of the appeal and of the initial hearing, which it stated should be summarily assessed at £25,235; the return of an interim costs payment of £27,500.00 it made as a result of the initial hearing; and an interim payment for its own costs of £18,000.00.
The Respondent submitted that it would be raising further issues, for which permission of the Court would be needed, in order to continue its claim. The Appellant agreed and stated that the claim should be remitted back to the High Court.
The Respondent, therefore, submitted that it should not have to pay the costs of the appeal until its application to amend had been dealt with. Alternatively, the Appellant’s costs should be assessed at 70% of those claimed.
The Respondent also submitted that they won two of the issues at stake in the overall claim and should not be liable for the costs of these.
The Court held that a ruling on costs should not have to wait until the application to amend had been heard; and that the Appellant had won the appeal and so was entitled to their costs, which were summarily assessed at £23,860.
The Court also held that while the Respondent has won two issues overall, there were “irrelevant as a result of our decision on the appeal”, and so the Appellant was entitled to 75% of its costs of the initial hearing. As a result, the Respondent was ordered to re-pay its own interim payment, and make an interim payment of £18,000.00.
21.12.2011Schneider v Door2door PTS Ltd.  EWHC 90210 (Costs)
Key areas: RTA; Part 45; SCCO
This was a case to determine whether or not an accident was an RTA.
The Claimant was being picked up from a hospital by the Defendant’s vehicle. The vehicle parked up and in order to help the Claimant get into the vehicle, she was given a ramp. As she stepped on it, she fell over and injured herself.
The claim eventually settled pre-issue via a Part 36 offer for £5,000.00.
Costs were not agreed, and so Part 8 “costs-only” proceedings were issued.
The Claimant’s costs totalled £22,982.91. The Defendant submitted that it should only be liable for Part 45, section II costs.
The Defendant submitted that the injury was caused by the Claimant due to her use of the vehicle, and so it was classed as a road-traffic accident.
The Claimant submitted that she was attempting to use the vehicle and injured herself as she was doing so. As a result, the vehicle was “part of the scenery”, which is why the Claimant’s initial case focused upon the Defendant’s risk assessments, and was dealt with as a public liability claim.
The Court held that while “it might appear to defy logic … that a road traffic accident could have taken place”, it considered that the use of the ramp was use of the vehicle.
As a result, it was held to be a road-traffic accident, and so only Part 45, section II costs applied. However, given that there were no authorities on this point, permission to appeal was granted.
20.12.2011Cherrilow Ltd. v Osmond Solicitors Ltd.; Butler-Creagh  EWHC 3443 (QB)
Key areas: Indemnity Basis; Basis of assessment; party’s conduct; High Court
The Claimant in this matter sought an order for the First Defendant to disclose files which it considered were necessary to disclose to the Second Defendant in a claim for fraudulent misrepresentation over a conveyance. The First Defendant claimed that they had a lien over the files due to unpaid fees; the Second Defendant considered that they were covered by legal privilege or owned them.
The Claimant submitted that they had paid the outstanding fees due to the First Defendant, and so were entitled to the file as a result. They also submitted that the Second Defendant’s actions were designed to conceal his actions which led to the misrepresentation proceedings.
The Court noted that privilege could not apply because it had been waived by the Second Defendant’s witness statement in support of his own claim against the other party in the conveyance.
The Claimant submitted that the Defendants’ actions in delaying disclosure until shortly before trial caused the Part 8 proceedings to be issued. As a result they should be entitled to costs on the Indemnity Basis.
The parties then agreed to deal with the outstanding issues in the case, and to pay the Claimant’s costs, but the First Defendant then stated that they would only costs relating to the lien itself, not the proceedings as a whole. The Court dismissed this on the basis that there was no distinction between the two. The First Defendant served a Skeleton Argument in support its actions, but the Court dismissed it as it did not explain their actions.
The Second Defendant submitted that he was happy to disclose documents, but the Claimant’s conduct prevented him doing so. The Court dismissed this too on the basis that the Claimant’s conduct was justified and reasonable in the circumstances, and that the Second defendant was in any event incorrect in his description.
Overall, the Court held that the Part 8 claim could not be defeated, and based on their conduct, the Defendants were held to be jointly and severably liable for costs of the Part 8 on the Indemnity Basis.
19.12.2011Solomon v Cromwell Group PLC; Oliver v Doughty  EWCA Civ 1584
Key areas: RTA; Part 45; Court of Appeal
These cases concerned the relationship between CPR Parts 36 and 44 in relation to road-traffic accidents.
Both Appellants’ cases settled pre-issue for less than £10,000.00 via a Part 36 offer, and so the Respondents claimed that only fixed costs should be allowed under CPR 45, section II.
In Solomon, at first instance it was held that the acceptance of a Part 36 offer meant that CPR 44.12(1)(b) applied, but that it would be open to only allow CPR 45, section II costs. On a first appeal, it was held that only CPR 45, section II costs applied because “proceedings” had not been issued, and so CPR 36.10 did not apply.
In Oliver, it was held at first instance that only CPR 45, section II costs applied because it ensured that only reasonable and proportionate costs applied.
The Appellants submitted that the general right to costs under CPR 36 cannot be overridden by CPR 45, section II. In Oliver it was also submitted that the parties had agreed to deal with costs on the Standard Basis.
The Court held that CPR 36 contains general rules, while CPR 45 deals with specific situations, such as RTAs, which leads to the exclusion of any alternative Rules.
As a result, only the costs under CPR 45, section II would be generally allowed.
The Court then looked at the actual agreements between the parties: Solomon was settled by reference to CPR 36; Oliver was settled by an offer which “is intended to have the consequences of Part 36… in accordance with CPR 36.10”.
The Claimant in Oliver submitted that this meant there was a contractual agreement to pay Standard Basis costs, but the Court held that the reference to CPR 36 shows otherwise.
Overall, both appeals were dismissed and so only CPR 45, section II costs were awarded.
15.12.2011Royal Brompton & Harefield NHS Foundation Trust v Joint Committee of Primary Care Trusts & Croydon PCT (Costs)  EWHC 3364 (Admin)
Key areas: both parties win some issues; High Court
This was a hearing to determine costs resulting from a main action in which both parties won some issues.
The Claimant submitted that it should be entitled to its costs and an interim payment of 60%; the Defendant that there should be no order as to costs.
The Claimant submitted that it won a Judicial Review, and that the issues which it lost had no bearing on the overall outcome.
The Defendant submitted that it won 6 of the 7 issues raised, and that the issue won by the Claimant was only a small part of the proceedings. The Claimant responded with that even if the claim had been limited to the issue on which the Claimant won, they other issues would still need to be dealt with. The Court accepted this, but the other issues meant that more evidence had to be considered due to the number of issues raised.
The Court noted that permission to appeal was given on all grounds raised by the Claimant, and so was considered unreasonable for the Defendant to challenge this.
Overall, the Court awarded the Claimant its costs sought, with an interim payment of £250,000.00.
14.12.2011Musion Systems Ltd. v Activ8-3d Ltd.; C2R Ltd.; Dutton; Humphreys  EWPCC 39
Key areas: costs thrown away; summary assessment; Patents Court
This was a hearing over the Claimant’s costs thrown away by an adjournment of a trial.
The Judge invited submissions and stated that the costs would be summarily assessed.
The Defendants sought to dispute the Order on the basis of the facts of the case; and on their current financial status.
The Judge so no reason to reconsider his Order, and so dismissed the first ground.
He noted that no evidence had been submitted regarding the Defendants’ status and dismissed the second ground.
The Claimant stated that their costs fell into 6 main categories: timetable and trial arrangements; skeleton argument; trial bundles; witness statements; trial attendance and preparation; and Counsel’s brief fee. The Defendants submitted that the first category was not thrown away at all; while the others only had part of their costs thrown away. The Court held that the first, second and fifth categories were thrown away and the others had part of their costs thrown away.
The costs were then assessed. The Claimant claimed £64,369.11 and on the facts, it was held that £45,833.36 should be paid.
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