29.11.2012Light On Line Ltd.; Project Management Lighting Ltd. v Zumtobel Lighting Ltd.  EWHC 3376 (QB)
Key areas: ATE; success fee; disclosure; High Court
This was an appeal against orders made in a Detailed Assessment of the Claimants’ costs relating to ATE premium and success fees.
At the DA the solicitors were awarded a 40% success fee and Counsel was awarded 20%. The ATE was disallowed due to the Claimant not complying with Costs PD 32.5.
The Solicitors acted under a CFA dated 9th September 2009. The Letter of Claim was served on 2nd October 2009 and the Defendant was informed of ATE on 6th November 2009, 11 days before their Letter of Response was served. Counsel entered into a CFA one month after the Response was served, which was one month before proceedings were issued. Both CFAs claimed 100% success fees that were reduced should the case settle at specific points before trial, none of which applied on the facts.
In their Replies the Claimant served a redacted copy of the ATE certificate, but on DA this was held to not comply with the CPR, and so the premium was disallowed. An application for relief from sanction was also refused.
The Claimant submitted that the only information required was the total payable, which had already been provided, and in any event the Defendant had been aware of ATE from the outset. The Defendant submitted that the Judge was right to disallow it because the information provided at the start complied with CPD 19, not CPD 35.2. It also submitted that the amount allowed for the success fees was reasonable.
The Court held that the information contained in the letter did not comply with CPD 32.5, nor would that required in a Notice of Funding. However, it held that the redacted certificate did comply because it showed that different premiums applied depending on when the case settled. It also held that the information as a whole had been provided when the redacted certificate had been disclosed because from that point there was nothing to stop the Defendant requesting a full version.
On the success fee, the Court held that the Defendant had denied throughout that they were liable, and so the Judge was wrong to consider that the case was about quantum. As a result, the Solicitors’ success fee was increased to 67%, while Counsel’s was increased to 60%.
The Assessment was also remitted back to the Costs Judge, but the Defendant was to pay the Claimants’ costs of the appeal.
23.11.2012Smith v Trafford Housing Trust  EWHC 3320 (Ch)
Key areas: both parties win some issues; Part 36 offer; High Court
This was a hearing to determine costs arising from a main action.
The main action was originally a claim for breach of the Human Rights Act, which after being struck-out, became a simple claim for breach of contract, for which the Claimant was awarded £102.10, including interest.
On 21st December 2011, the Defendant made a Part 36 offer to settle for £1,000.00, plus costs, which the Claimant rejected.
The Claimant submitted that it was unjust to make him pay the Defendant’s costs from when the offer expired due to the issues at stake being about principle, including the Claimant’s employment record, not money. The Defendant submitted that the normal Part 36 rules should apply given that the Claimant failed to beat their offer.
The Court held that the case was not about money, but about reputation; that the parties were correct to take the matter to trial; and the Claimant did in fact win.
However, given the Defendant’s Part 36 offer, the Court held that No Order as to Costs should be made, other than those that related to the struck-out issue, for which the Defendant was entitled its costs.
23.11.2012Wilkinson v London Strategic Health Authority  EWPCC 55
Key areas: both parties win some issues; Patents Court
This hearing was to determine costs resulting from a copyright dispute.
Both parties submitted that they had won overall because the Claimant won one of her two three claims, namely that relating to ownership.
The Claimant submitted that ownership was the most important issue and was the reason that the claim was issued. However, the Court also noted that the infringement issue was “critical”.
The case was issued in the High Court, but transferred to the Patents County Court, with the Claimant ordered to pay one-third of the costs of the transfer hearing, with the remainder of the High Court costs reserved.
The Court held that when considering the importance of the case the Defendant won overall, but when considering the issues the Claimant won overall. As a result, the Defendant was ordered to pay 55% of the Claimant’s costs and the Claimant was to pay 35% of the Defendant’s.
In relation to the reserved costs both parties were to pay one-third of the other’s costs.
In total, taking into account offers that the parties had also made, the Defendant had to pay 27.5% of the Claimant’s costs of these proceedings, with the Claimant to pay 35% of the Defendant’s costs.
23.11.2012Virgin Atlantic Airways Ltd. v Jet Airways (India) Ltd.; Delta Air Lines, Inc.; Air Canada; Zodiac Seats UK Ltd.  EWHC 3318 (Pat)
Key areas: Basis of assessment; apportionment of costs; liability for costs; High Court
This was a hearing to determine costs from a patent dispute.
The Claimant waived privilege over the terms of a Part 36 offer, even though Zodiac had received permission to appeal to the Supreme Court. In the circumstances, the Court decided to stay this issue pending the outcome of the appeal.
The Third Defendant had successfully defended itself, and so claimed its costs from the Claimant which totalled £2.6 million. It submitted that it made two offers, neither of which the Claimant beat, and so was entitled to indemnity costs. However, the Court held that on the facts the Claimant’s conduct did not just such an order.
The Second Defendant had also successfully defended itself, and claimed costs of £400,000, even though it played very little part in the actual proceedings. Its offers were similar to the Third Defendant’s and so were also awarded Standard Basis costs.
16.11.2012R (Crown Prosecution Service) v Bolton Crown Court; Johnson  EWHC 3570 (Admin)
Key areas: High Court; criminal; Wasted Costs Order; Legal Aid
This was an appeal by the CPS that they were liable for the Defendant’s wasted costs resulting from a hearing that had been adjourned due to the CPS not being ready for the hearing.
They appealed on the basis that the Court had no power to make the Order under reg. 3 Costs in Criminal Cases Regulations 1986 because Counsel was not a party to the case; that the Judge had misdirected himself in saying that costs had been wasted given the work covered by Regulations; and that their conduct justified an Order.
The Court agreed that Counsel was not a party, and so the Order was quashed.
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