27.08.2014Kellie; Kellie v Wheatley & Lloyd Architects Ltd.  EWHC 2886 (TCC)
Key areas: both parties win some issues; Basis of assessment; High Court
This was a ruling on costs issues arising from a main action.
The claim had been dismissed, and the Claimants had conceded that they were liable for 90% of the Defendant’s costs.
This hearing was to determine whether the Defendants were entitled to full costs, and the basis of assessment.
The Claimants submitted that the Defendant should only be awarded a maximum of 95% of its costs because it lost discrete two issues at trial, but accepted that these issues did not lengthen the trial.
The Defendant submitted that the issues on which it lost were simply part of the main issues.
The Court agreed with the Defendant and awarded them their full costs.
In relation to the basis of assessment, the Court held that while the claim was weak, it was not speculative. As a result, Standard Basis costs were awarded.
21.08.2014The Co-Operative Bank Plc v Phillips  EWHC 2862 (Ch)
Key areas: Basis of assessment; costs under a contract; party’s conduct; High Court
This was a hearing to determine costs arising from a discontinued set of proceedings.
The Claimant submitted that costs should be awarded on the Standard Basis, in the usual manner; the Defendant suggested the Indemnity Basis.
The Defendant gave two arguments: abuse of process; and the Claimant acting outside its powers as a Chargee of his property.
The Court was noted that the Claimant discontinued so as to get out issues caused by its own breach of Orders, and said that the Defendant might have a “justifiable sense of grievance” if the Claimant improved its position by discontinuing.
The Court noted that because the Claimant did not serve its evidence, in breach of the Order, the Defendant was unable to show why the proceedings were actually brought. The Defendant asked the Court to draw inferences. The Court held that based on the evidence, the value of the property ensured that the Claimant could not have brought the claim in order to sell them, but brought them to pressure the Defendant into paying what he owed them, as shown by his offer.
As a result, the court held that the Claimant was acting within its powers. As a result, the abuse of process claim also failed, and the Defendant was awarded Standard Basis costs.
The Claimant then submitted that it was entitled to its reasonable costs due to the terms of the mortgage. The Court held that the discontinuance meant that it did not have any reasonable costs.
21.08.2014Starbev GP Ltd. v Interbrew Central European Holdings BV  EWHC 2863 (Comm)
Key areas: both parties win some issues; High Court
This was a hearing to determine issues arising from a main action, including costs.
The Defendant had been awarded €129 million, but had only 2 of the 4 issues at stake.
The Defendant submitted that it won the main issues, and should be awarded 90% of its costs.
The Claimant submitted that if the Defendant is awarded costs, it should only be awarded 50%; however, no order for costs would be more appropriate.
Overall, the Defendant was awarded 75% of its costs, and an interim payment of £640,000.00.
The Court left the parties to agree interest on costs between them.
20.08.2014Yeo v Times Newspapers Ltd.  EWHC 2853 (QB)
Key areas: relief from sanction; libel; success fee; ATE; High Court
This was an interim hearing in a libel claim to determine amongst other issues, relief from sanctions.
The solicitors acted under a CFA with a success fee, and had taken out ATE insurance. Both of these post-dated April 2013, which would make them generally irrecoverable inter partes. However, as this was a libel action, they are recoverable (CPR 48.2).
The Defendant had been advised of the situation prior to the issue of proceedings, but the Claimant had not served a Notice of Funding when they were issued. Instead, the N251 was served a few months later when the solicitors realised their mistake. This was in breach of CPR 44.15(1) and Costs PD 19.4.
As a result, the Claimant required relief from sanction in order for them to be claimed.
The Defendant did not challenge the relief, and the Claimants had agreed to pay their costs relating to this, but the Claimant still had to show that relief should be granted.
The Court accepted that the breach was not one that was “serious or practically significant”, because the Defendant had been given all the necessary information at the outset, which was 3 months in advance of the time required by the CPR.
The Court stated that the impact was “negligible” and down to a simple mistake.
As a result, the Court ordered that the N251 be deemed to have been served on the issue date.
06.08.2014Harrison & Ors v Shepherd Homes Ltd.; National House-Building Council; NHBC Building Control Services Ltd.  EWHC 2786 (TCC)
Key areas: Application to strike-out; liability for costs; High Court
This was a hearing to determine costs arising from a claim resulting from a building dispute.
The Claimants won against the First Defendant, and were awarded 95% of the costs of one issue, with the parties agreeing the costs of other issues.
The Claimants withdrew one claim against the Second Defendant, with costs reserved, but maintained another which was subsequently stayed. The Second Defendant applied to get this other claim struck-out, but it was dismissed with costs reserved.
As a result of the judgment against the First Defendant, the Claimants withdrew the claim against the Second and Third Defendants on that same issue, with costs to be determined.
This hearing was to determine the costs between the Claimants and First and Second Defendants.
The Claimants submitted that the First Defendant should be liable for the other Defendants costs on the basis that it lost. They submitted that they applied for a stay and so saved costs by following the Pre-Action Protocol instead of requiring formal Defences; and they reasonably issued against the First and Second Defendants, given the facts and the potential of the First Defendant being unable to satisfy a judgment.
The Claimants also submitted that they should be awarded the costs of the unsuccessful application to strike-out the claim.
As for the abandoned claims, the Claimants submitted that they were withdrawn with the period specified by the stay, and so should not be penalised by costs, or the First Defendant should be liable because it was only issued due to their refusal to admit liability.
Overall, the Claimant submitted that the First Defendant should pay the Claimants’ costs against the Second and Third Defendants.
The First Defendant submitted that it should not be liable for the any incurred by the Claimants or other Defendants, and that as the Second and Third Defendants had agreed to undertake remedial works, they had accepted liability. It also submitted that it should not be liable for any costs relating to the strike-out application, nor any costs that solely related to allegations against the other Defendants.
The Second and Third Defendants submitted that the Claimant’s costs application was misconceived, and that the strike-out ruling simply said the claims were arguable. They suggested that the claims should be withdrawn, which would entitle them to the costs.
The Court held that the Claimants had not succeeded against the Second and Third Defendants, and that these Defendants had undertaken remedial works shortly after proceedings were issued, and without being ordered to do so by a Court. However, as the proceedings had been stayed these Defendants could not say that they were successful either.
Overall, it held that between the Claimants and Second and Third Defendants there should be no order as to costs. However, the costs of the strike-out application were payable to the Claimants, and costs relating to two specific paragraphs of the Particulars of Claim payable to the Second and Third Defendants. This ruling also meant that the First Defendant was not liable for the costs between the other parties.
As for the costs between the Claimants and First Defendant, the Court held that the Claimants reasonably issued against the Second and Third Defendants, given the relationship between the Defendants. In addition, it noted that there was evidence the First Defendant encouraged the Claimants to issue against the other Defendants. As a result, the First Defendant was held liable for the Claimants’ costs against the Second Defendants, other than those that the Claimants have to pay to the other Defendants.
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