Joseph v Boyd and Hutchinson (No 2): SCCO 16 Jan 2001

CourtService This is one of the last of the ‘old’ Review cases which will come before the courts antedating as it does the CPR. The Defendant Solicitors had represented the Claimant and her sister in their claim for damages for personal injuries arising out of a traffic accident in 1989. The Claimant is almost uniquely qualified, in that she has been a barrister, is a solicitor and is also a fully qualified costs draftsperson. After those proceedings were successful the Defendants prepared a bill for agreement with the insurers, which claimed a lower hourly rate than that subsequently sought in the bills delivered to the Claimant and her sister. Those costs were agreed and paid, but problems arose over accounting to the Claimant (her sister had assigned all her rights to the Claimant) and accordingly the Claimant, in 1996, started Chancery proceedings for an account. Within those proceedings the Chancery Master directed taxation of the Solicitor’s bill, and this took place over a protracted period, between 1996 and 1999, some of the earlier history being dealt with in Review No.1 of 1999. On this Review a number of points were raised. Firstly, it was contended by the Defendants that the Claimant was a difficult client who had to be handled with special care because of her qualifications, a view which the Judge on appeal rejected.
Secondly, the evidence before the Costs Judge was that the client care letter justifying the higher hourly rate had never been communicated to the Claimant’s sister, and whilst the Costs Judge could not be satisfied that it had been sent to the Claimant, he nevertheless felt that the hourly rates claimed were justified. The Judge disagreed, partly on the basis that the inter partes bill in the same matter had been approved at a lower rate, and also because the Claimant, when drafting bills for the Defendants, in her capacity of a costs draftsperson, had done so at lower hourly rates.
The Judge also rejected the Costs Judge’s view that the interlocutory uplift for conferences etc should be 50% rather than 35%.
Finally the Judge felt that the Claimant should recover her costs of the Review on the indemnity basis because of the conduct of the Defendants in not keeping the Claimant fully informed of what was happening in her name (notably not notifying her that a Calderbank offer had been made in respect of the inter partes costs).
Some of the evidence had not been before the Costs Judge, but nevertheless the Judge felt that it was an appropriate case to direct that the Defendants should pay costs on the indemnity basis, and the matter was remitted to a different Costs Judge for final resolution

Judges:

Mr Justice Jacob sitting with Assessors

Citations:

[2001] EW Costs 1

Jurisdiction:

England and Wales

Costs

Updated: 29 April 2022; Ref: scu.185941

O’Shea v Abbey National: SCCO 29 Jun 2001

CS The Claimant had defaulted on his mortgage with Abbey National and possession proceedings had taken place. Under the terms of the Claimant’s mortgage, the Abbey National was entitled to add the costs of the possession proceedings to the advance. Concerned at the level of these costs the Claimant issued proceedings in person under the Solicitors Act and obtained an order for detailed assessment of the Abbey’s solicitors charges, Messrs Shoosmiths. Following 1.5 days argument, the Claimant secured very modest reductions and failed to beat the one fifth rule. He was ordered to pay the costs of reference and the Master refused permission to appeal on the grounds that there were no reasonable prospects of success, disproportionate costs would be incurred in an appeal and there was no breach of the Claimant’s human rights. The Claimant applied to Mr Justice Gray for permission to appeal. This was given on the grounds that: ‘In the absence of any documents relating to the hearing and the assessment before the Costs Judge, it is impossible for me to say whether an appeal would have a realistic prospect of success. Bearing in mind that the Appellant is acting in person, I think that the convenient course is to grant permission.’
The appeal came before Mr Justice Grigson sitting with assessors (Anthony Cowen and myself) on 29 June 2001. At the outset of the hearing, the usher informed the Judge that the Claimant now had a solicitor acting for him. However it transpired during the course of argument that the Claimant’s representative was a legal executive who had assisted as a McKenzie Friend during the detailed assessment. The Judge permitted him to continue as an advocate on the Claimant’s behalf.
The Claimant had served a lengthy notice of appeal taking wide ranging points. These were largely abandoned by the legal executive who confined his submissions to two principal issues:-
(1) The bills which had been rendered to the Abbey National by Shoosmiths were not proper bills because they were unaccompanied by narratives and did not comply with the Solicitors Act. The Judge dismissed this submission for three reasons. First, the point had not been taken before the Master. Second, the Claimant had consented to the order for detailed assessment of Shoosmiths bills and thereby had waived any right to argue that they did not comply with the Solicitors Act. Third, the Master had found as a fact that the narratives had been attached to the invoices; this was a decision he was entitled to take on the evidence before him and was not now susceptible to appeal.
(2) The Master had been wrong to deduct disallowances from the breakdowns of the bills and should, instead, have applied the reductions to the gross sum bill. The Judge rejected this submission. He said that it was common practice for solicitors to round down bills and that as Shoosmiths had not charged Abbey National as much as they could reasonably have done, this was to the Claimant’s advantage since he was ultimately responsible for payment of their accounts.
The Master had assessed the invoices at andpound;14,021.33 inclusive of VAT plus andpound;6,218.75 costs. The Defendant’s schedule of costs for the appeal including VAT claimed andpound;8,973.60. On advice from the assessors, the Judge allowed andpound;5,000 plus VAT. Of this sum, andpound;1,209 plus VAT represented the cost of a transcript of the hearing before the Master which was obtained subsequent to the application to Gray J. In his Notice of Appeal, the Claimant had contended that the Master had prevented him taking advice from his McKenzie Friend and that no account had been taken of the Claimant’s assertions that the claims for timed letters and telephone calls were unreasonable. The transcript revealed that the Claimant’s submissions had no basis or foundation which was probably the reason why the appeal on these points was abandoned.

Judges:

Mr Justice Grigson sitting with Assessors

Citations:

[2001] EW Costs 4

Jurisdiction:

England and Wales

Costs

Updated: 29 April 2022; Ref: scu.185945

Dibb and Clegg (A Firm) v Recover Ltd and Others: SCCO 12 Oct 2001

CourtService This was an appeal against the decision of a Costs Judge given on 31 August 2000 on a preliminary issue raised in the course of a detailed assessment of the Claimant Solicitors’ bills delivered to the Defendants. The background to the matter is that the Claimant firm had been endeavouring to recover outstanding legal fees from the Defendants for whom the firm had acted in a substantial commercial dispute. The trial in the Queen’s Bench Division had been expected to last 10 days. On 20 October 1998 the Claimant entered into a Contentious Business Agreement (‘CBA’) with the two corporate Defendants and two of the individual Defendants (D4 and D5).
The CBA provided for payment of agreed fees by agreed instalments. The trial lasted 5 weeks. The Defendants succeeded in their defence and were awarded their costs on the indemnity basis but little if anything has been recovered from the Plaintiffs. The Defendants paid some but by no means all of the agreed costs to the Claimant firm. The Claimant pressed for payment. They served statutory demands and applied for a freezing order. In an affidavit sworn by D4 in July 1999 in support of an application to get aside the statutory demands D4 said that the CBA was unenforceable because it had been signed under pressure from the Claimant and that D4 and D5 were ‘putting in hand an application for the CBA to be set aside and for there to be a detailed assessment of the bills delivered’.
In the event, the parties entered into a Consent Order in Tomlin form made by Steel J on 2 August 1999 under which the Claimant was to submit new bills and to withdraw the statutory demands. The Claimant was, under the Order, to submit the new bills for detailed assessment and the Defendants were to pay the assessed costs within 14 days of the completion of the assessment (less all sums previously paid – any dispute as to what those sums were was to be resolved by arbitration). The Claimant also agreed, in the Schedule, not to rely upon the CBA dated 20 October 1998 or any other CBA. As part of the Order D4 gave undertakings not to sell or lease certain property until after the completion of the detailed assessment or further order.
The Claimant served new bills on 6 August 1999 (‘the new bills’) which totalled about andpound;444,000 whereas the old bills had totalled about andpound;364,000.
On 28 September 1999 Steel J made another Consent Order which varied the undertakings given by D4 in the order of 2 August 1999 so as to add further properties to the security provided and which also amended that Order to include an order for the detailed assessment of the new bills and lay down a procedural timetable for that detailed assessment. On 30 November 1999 the Claimant served a breakdown of the new bills and on 28 February 2000 the Defendants served Points of Dispute in which it was contended that the new bills should be subject to a ‘cap’ being the sum the Defendants had agreed to pay under the CBA.
At the hearing on 31 August 2000, D4 (who was by this time acting in person) asked the Costs judge (through the Costs draftsman who had been permitted to speak on her behalf) to make a declaration that the Claimant was bound by the CBA whereas the Defendants were not because the Defendants had not agreed not to rely on the CBA and it had not been expressly set aside. The Costs judge held that the Defendants were unable to rely on the CBA and that accordingly the detailed assessment must proceed. When the detailed assessment had been completed the new bills had been reduced from about andpound;444,000 to about andpound;423,000. It had been established (in arbitration proceedings pursuant to the Order of 2 August 1999) that the Defendants had paid nearly andpound;200,000 and so some andpound;223,000 (plus some further sums) remained payable to the Claimant.
D4 and D5 lodged Notice of Appeal against the decision of the Costs judge that the Defendants were not entitled to invoke the CBA. Permission was given for the appeal by Eady J on 21 February 2001. The Notice of Appeal says that the Costs judge was wrong to hold that the Appellants could not rely on the CBA and that he ought to have held that the Order of Steel J only prevented the Claimant from relying on it.
By the time the appeal came on for hearing on 12 October 2001, D4 had been adjudged bankrupt and so the only remaining Appellant was D5. Mr Fortune, Counsel for D5, submitted that the Orders of Steel J had to be construed objectively and he drew attention to the Schedule to the Order of 2 August 1999 where the Claimant agreed that the CBA would not be relied on whereas the Defendants did not and there was no Order setting the CBA aside. He submitted that it was accordingly open to the Defendants to fall back on the CBA which contained a ‘capping’ arrangement.
Mr Farber, the Claimant’s Counsel, submitted that one had to have regard to the factual matrix – including the affidavit sworn by D4 in July 1999 where she contended that the CBA should be set aside. It was plain, he submitted, that the intention of the parties was that the CBA should be set aside and that there should be a detailed assessment. Indeed he contended that there could not be an Order for a detailed assessment if the CBA was not set aside.
Referring to Sections 59-63 of the Solicitors Act 1974, the learned judge said that the overall scheme of the legislation was, in the ordinary way, to remove costs which were subject to a contentious business agreement from the process of detailed assessment, but in so doing to enable justice to be done. On the facts of this case it was plain that both sides were abandoning the CBA and had decided to go down the detailed assessment route. Indeed, the Order of 2 August 1999 provided for the preparation of new bills and for them to be paid within 14 days of assessment. That was reinforced by the fact that the Solicitors served new bills and there was an order (i.e. the Order of 28 September 1999) for the detailed assessment of those bills. It was difficult to see how Steel J could have made that Order if there was still a live CBA. The Defendants were not entitled to blow hot and cold. In any event (even if he was wrong about that) he would hold (agreeing with Mr Farber’s submission) that the Defendants were estopped from raising the point or were deemed to have waived it in view of the large sums of money which the Claimant had already expended in the detailed assessment before the Defendants first raised it in their Points of Dispute. The costs judge had been right.
The appeal was dismissed and the 5th Defendant was ordered to pay the Claimant’s Costs which the judge summarily assessed.

Judges:

Mr Justice Davis sitting with Assessors

Citations:

[2001] EW Costs 10

Jurisdiction:

England and Wales

Costs

Updated: 29 April 2022; Ref: scu.185950

Regina (Ecclestone) v Legal Aid Board: SCCO 5 Oct 2001

This was a review under RSC Order 62 rule 35. Many years previously, E had suffered abuse when in care. He obtained legal aid to bring a claim for compensation against his local authority and his solicitors wished to instruct an expert who was based in London. He lived in Liverpool. The relevant Legal Aid Board would not give authority to incur the expenses of travelling to London. After challenging the Legal Aid Board decision at various hearings, he obtained legal aid to apply for judicial review of the Legal Aid Board’s refusal. He was successful and an order for costs was made against the Legal Aid Board as well as an order for a legal aid taxation. The main issue in this review related to costs claimed in respect of the judicial review proceedings before legal aid was granted. On taxation (in 1998) the Master disallowed the pre legal aid costs relying on the indemnity principle. The Master held that there was no legal liability on E to pay these costs to the solicitor and, therefore, there were no costs in this period which E could claim from the Legal Aid Board. On 6 April 1999, in the period after taxation but before objections were heard by the Master, E signed a witness statement which stated, amongst other things: ‘My solicitor advised me that I would be personally responsible for the fees involved and whether steps were taken to recover those costs would be a matter of good will on my solicitor’s part. It was never agreed expressly or impliedly that under no circumstances whatsoever would I be responsible for the costs involved or that I would not have to pay any costs. It was, of course, well known to me and my solicitors that my means were extremely limited … However this did not mean that I was not legally responsible for my solicitors costs which were not covered by legal aid.’

Judges:

Mr Justice Scott Baker sitting with Assessors

Citations:

[2001] EW Costs 8

Jurisdiction:

England and Wales

Costs, Legal Aid

Updated: 29 April 2022; Ref: scu.185948

Re: Homes Assured Corporation Plc The Official Receiver v Dobson and Others; similar: SCCO 28 Nov 2001

CourtService In these two related appeals heard together the learned Judge dealt with the appropriate penalty to apply when Regulation 109 of the Legal Aid (General) Regulations was invoked. In the first case there had been a delay of 4 years between the conclusion of the proceedings and the notice of commencement of the assessment proceedings, which the Deputy Costs Judge had held to be totally unreasonable, so that he allowed no profit costs whatsoever. The authorities were reviewed. A complete disallowance of the solicitors’ profit costs was not an appropriate remedy, bearing in mind that the Legal Services Commission had not suffered any prejudice, and indeed the only prejudice suffered might have been that of the claimants’ solicitors. The Judge did not feel it appropriate to lay down any rule in relation to such applications, but, on the facts of this case where the bill was some andpound;30,000, he felt that a 30% deduction from the bill was appropriate. In the second case the Costs Judge had taken an adverse view of the claimants solicitors conduct, which the learned Judge did not consider to have been correct, but in that case he did not feel that he had sufficient information to come to a final decision, and therefore remitted the matter to the Costs Judge for reconsideration in the light of his judgment.

Judges:

Mr Justice Park sitting with Assessors

Citations:

[2001] EW Costs 15

Jurisdiction:

England and Wales

Costs, Legal Aid

Updated: 29 April 2022; Ref: scu.185955

K Zaman Ali and Co v The Lord Chancellor; (Regina v Zaka): SCCO 26 Oct 2001

This was a criminal appeal by solicitors who had submitted their bill of costs in which work was claimed at prescribed legal aid rates for grade A fee earner level, which was however accompanied by a letter, which started with the following paragraphs:
‘We are grateful for the kind extension of time granted to submit our bill of costs with the further extension allowing us to send our papers by DX on Monday 22 instant.
Enhancement is respectfully claimed in this case for the following reasons …’
No percentage enhancement however is actually mentioned in either this letter, or of course in the bill.
The Determining Officer refused to allow any enhancement, holding that what he had to consider was the bill and that any accompanying letter was a supporting document not to be read as part of the bill.
The Costs Judge affirmed the decision of the Determining Officer, but granted a certificate to allow the matter to proceed to a final appeal in the High Court.
On the facts the Judge decided the appeal against the solicitors, but he did lay down some general principles to be followed in future cases to ensure that decisions of Determining Officers were not ‘Wednesbury unreasonable’.
He apparently suggested that the Determining Officer could, in a situation such as arose here, either refer the whole bill back to the solicitors to make a proper claim to include enhancement; he could deal with it as if enhancement had been claimed; or he could make reasonable enquiries.
What seems to have been fatal to the solicitors’ appeal in this case is that they neither claimed enhancement in the bill itself, nor did they specify in the accompanying letter what rate of enhancement they were seeking. However in the light of the Judge’s comments summarised above it seems unlikely that this situation will recur.
The Judge made no order as to the costs of the appeal, although the Lord Chancellor’s Department was represented by counsel.

Judges:

Mr Justice Butterfield sitting without Assessors

Citations:

[2001] EW Costs 12

Jurisdiction:

England and Wales

Costs, Legal Aid

Updated: 29 April 2022; Ref: scu.185952

Doncaster Metropolitan Borough Council v Hancock: SCCO 2 Mar 2001

CS The Defendant had been employed by the Claimant ouncil for many years, initially as an advisor on further and higher education, but latterly as an education assistant. The Claimants informed the Defendant that his contract of employment would terminate on grounds of redundancy with effect from 15 December 1995. On that date, when the Defendant’s contract of employment terminated, the Claimants paid into his bank account over andpound;24,000, being the redundancy payment due to him calculated in accordance with the Claimants redundancy scheme. However, on the same day, the Defendant had contacted the Claimants explaining that he had suffered a breakdown in his mental health, and asking if they would consider allowing him to retire on medical grounds, to which the Claimants did agree, provided that he did not in fact receive a larger sum than the redundancy payment that had already been paid. However a second payment was made, and the Claimants therefore obtained a freezing injunction to prevent the Defendant spending that sum, and in July 1996 a Queens Bench Master granted summary judgment to the Claimants for andpound;24,000 odd with over andpound;1,100 interest and costs. The Defendant applied for permission to appeal out of time, and although Ian Kennedy J granted that permission, he nevertheless dismissed the appeal with costs. The Defendant’s main objection to the assessment which took place before the Costs Judge was that his rights under the European Convention on Human Rights, as brought into English law by the Human Rights Act 1998, had been infringed. He in particular relied on Article 6. His primary contention was that because the application for summary judgment was heard in Chambers, by both the Master and the Judge, they were in breach of Article 6, but, after reviewing the authorities, the Judge rejected that contention. The Judge also rejected a contention by the Defendant that his Human Rights had been breached by the obtaining of the Claimants of their freezing injunction on an ex parte basis. Next the Defendant contended that the reasoning of the Queens Bench Master could be impugned because he had not produced it in writing. The Judge held that he had no obligation to do so, but, even if he had, any defect was cured, because, on appeal, the Judge had given full and adequate reasons, which had not been the subject of any further appeal. The final principal ground of objection by the Defendant was that the Costs Judge had not sought to enlist the assistance of the Official Solicitor as a Friend of the Court. The Judge, who of course heard the Defendant in person, said: ‘I suspect that there are many competent lawyers who if instructed on behalf of the Defendant would not have been as able to put forward as persuasive a case as the Defendant has. Having reviewed the evidence, I am also satisfied that there were no arguments open to him that he did not pursue.’ The Judge accordingly held that this was not a good ground of appeal, but, even if it had been, it would not have allowed the Defendant to impugn the costs order or the order of the Costs Judge. There was also a cross appeal by the Claimants in respect of the Costs Judge’s decision disallowing the Claimant’s costs of their successful application for the grant of the freezing injunction. The Judge held that the Costs Judge had been wrong in this respect, but as the Claimants only wished to pursue their cross appeal if and to the extent that the Defendant was successful in his own appeal, their cross appeal was formally dismissed.

Judges:

Silber Jm with Assessors

Citations:

[2001] EW Costs 2

Jurisdiction:

England and Wales

Costs

Updated: 29 April 2022; Ref: scu.185942

Patterson v Cape Darlington and 15 other Defendants: SCCO 1 May 2001

CourtService This was an appeal by the sixteen Defendants. The Claimant had brought a claim for damages for personal injuries, namely, an asbestosis related disease sustained in consequence of his employment with some or all of the Defendants. The Claimant lived and worked in Liverpool. He was a member of the General and Municiple Boilerman’s Union and of the Liverpool and District Victims of Asbestos Support Group. This group advised him to instruct a London firm of solicitors to act for him in connection with his claim. This he did and the proceedings were brought in the Central London County Court. The case was settled. At the detailed assessment hearing of the Claimant’s Bill of Costs, the Defendants representatives challenged the use of London Solicitors and submitted that the Claimant should have instructed Liverpool solicitors and that the hourly rate should be adjusted accordingly. The Defendants had instructed solicitors in the North East of England. It was accepted by Counsel for both sides that an appeal from the Master is limited to a review of his decision and that on appeal it had to be shown by the Appellant that the Costs Judge’s decision was either wrong in law or was unreasonable.
Held: On the facts of this case the decision was not wrong in law, and it was not unreasonable. The Claimant had been advised by both his Union and the Liverpool and District Victims of Asbestosis Support Group to use a particular firm of solicitors whose offices were in London. The Judge stressed that on the facts of this case he could not find that the decision of the Master was either wrong in law or that it was unreasonable. The Judgment was given in chambers and neither side had requested transcripts of the Judgment.

Judges:

Mr Justice Astill sitting with Assessors

Citations:

[2001] EW Costs 4

Jurisdiction:

England and Wales

Costs

Updated: 29 April 2022; Ref: scu.185944

Kye Gbangbola and Lisa Lewis v Smith Sherriff Limited: TCC 20 Mar 1998

‘A tribunal does not act fairly and impartially if it does not give a party an opportunity of dealing with arguments which have not been advanced by either party’.

Judges:

His Honour Judge Humphrey Lloyd Qc

Citations:

[1998] 3 All ER 730

Statutes:

Arbitration Act 1996 68

Jurisdiction:

England and Wales

Cited by:

Cited – Carillion Construction Ltd v Devonport Royal Dockyard Ltd CA 16-Nov-2005
The parties had disputed payments for subcontracting work on a major project. The matter had been referred to arbitration, and the claimants now appealed refusal of leave to appeal the adjudicator’s award.
Held: The dispute was complex and . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Costs

Updated: 29 April 2022; Ref: scu.185895

Brawley v Marizynski (No 1): CA 2002

There is no convention that an order for no costs should be made whenever the court is asked to decide costs on the settlement of the matter where it was difficult to discern who had one in any conventional sense.

Citations:

[2002] EWCA Civ 756

Jurisdiction:

England and Wales

Cited by:

Cited – BCT Software Solutions Ltd v C Brewer and Sons Ltd CA 11-Jul-2003
A copyright infringement case had been settled, but the court was to quantify and apportion costs. Some andpound;700,000 having been spent when the damages amounted to andpound;10,000.
Held: Denne did not oust the court’s jurisdiction to hear . .
Lists of cited by and citing cases may be incomplete.

Costs

Updated: 29 April 2022; Ref: scu.184527

AEI Redifusion Ltd v PPL: 1999

The court described the appellate function in relation to the exrecise of judicial discretion on costs.
Held: ‘Before the court can interfere it must be shown that the judge has either erred in principle in his approach or has left out of account or has taken into account some feature that he should, or should not, have considered, or that his decision was wholly wrong because the Court is forced to the conclusion that he has not balanced the various factors fairly in the scale’.

Citations:

[1999] 1 WLR 1507

Cited by:

Cited – BCT Software Solutions Ltd v C Brewer and Sons Ltd CA 11-Jul-2003
A copyright infringement case had been settled, but the court was to quantify and apportion costs. Some andpound;700,000 having been spent when the damages amounted to andpound;10,000.
Held: Denne did not oust the court’s jurisdiction to hear . .
Cited – Douglas and others v Hello! Ltd and others ChD 23-Jan-2004
. .
Lists of cited by and citing cases may be incomplete.

Costs

Updated: 29 April 2022; Ref: scu.184474

Patching v Dubbins: 1853

The purchase-deed of a house in a terrace contained a covenant on the part of the vendor, unexplained by any recital, that no building should be erected on any part of the land of the vendor lying on the east side of the said terrace and opposite to the plot of land thereby conveyed. The owners of the other houses had also similar covenants. Held, that the latter words were not merely descriptive of the position of the land, but restricted the general meaning of the former words ; and that the covenant applied only to that part of the land which lay immediately opposite, and was of the width of the plot conveyed.
The general rule that the construction must be taken most strongly against the grantor, modified by the necessity of giving effect to every word of the instrument, if it can reasonably be done.
According to Tulk v. Moxhay (2 Ph. 774), if parties purchase land with notice of a covenant concerning it, but which does not run with the land so as to bind them at law, equity will not permit them to do anything contrary to the true meaning of that covenant.
Delay in taking legal proceedings and other acts not amounting to acquiescence in the infringement of a right.
To deprive a Plaintiff of a legal right at the hearing of the cause a case of acquiescence must be shewn much stronger than such as would be a sufficient defence to an interlocutory application by him, and must amount not only to positive license, but to an implication of an actual grant.
A Plaintiff litigating a question depending upon the construction of a doubtful instrument, not being a will, if the construction be decided against him, must pay the costs of the suit.

Citations:

(1853) Kay 1, [1853] EngR 894, (1853) 69 ER 1

Links:

Commonlii

Citing:

Considered – Tulk v Moxhay 22-Dec-1848
Purchaser with notice bound in Equity
A, being seised of the centre garden and some houses in Leicester Square, conveyed the garden to B in fee, and B covenanted for himself and his assigns to keep the garden unbuilt upon.
Held: A purchaser from B, with notice of the covenant, was . .
Lists of cited by and citing cases may be incomplete.

Land, Equity, Costs

Updated: 29 April 2022; Ref: scu.183262

De Bry v Fitzgerald: CA 1990

A request was made for security for costs in a large sum against a foreign resident party: ‘The more usual course might have been to order security, if security was to be ordered at all, in a relatively small sum in the first place, leaving the defendants to come back for further security as the matter progressed.’
Lord Donaldson said that since the purpose of an order for security against a plaintiff ordinarily resident outside the jurisdiction, is to have a fund within the jurisdiction which will guarantee that any order for costs in favour of the defendant will be met, ‘it is a complete answer to an application for such an order that a fund already exists, at least if the Court can ensure that the fund will not be dissipated.
Staughton LJ said, in reliance upon Kevorkian v Burney (No 2) [1937] 4 All ER 468, that it is for the plaintiff to show that he has an asset within the jurisdiction which will remain here and then for the defendant to show, if he can, that the asset is worthless or not of sufficient worth to cover the costs.

Judges:

Dillon LJ, Donaldson LJ, Staughton LJ

Citations:

[1990] 1 WLR 552, [1990] 1 All ER 560

Jurisdiction:

England and Wales

Citing:

Cited – Kevorkian v Burney (No 2) CA 1937
When applying for security for costs against a foreign resident plaintiff, it is first for the defendants to show that the plaintiff is resident abroad within Ord. 23, r. 1; secondly, for the plaintiff to show that he has an asset here which will . .

Cited by:

Reconsidered – Fitzgerald and Others v Williams and Others O’Regan and Others v Same CA 3-Jan-1996
Security for costs should not to be granted against an EC National in the absence of some particular difficulty. The Treaty required citizens of other states which were signatories of the convention. The importance of accurate evidence is . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs

Updated: 29 April 2022; Ref: scu.183176

In re Nossen’s Letter Patent: 1969

Citations:

[1969] 1 WLR 638

Jurisdiction:

England and Wales

Cited by:

Cited – Admiral Management Services Ltd v Para-Protect Europe Ltd and Others ChD 4-Mar-2002
The claimants suspected the defendants of wrongfully using their confidential information. Their staff made an initial investigation. They obtained a search and seizure order; and the material seized was examined by the staff. A Tomlin Order was . .
Applied – Sisu Capital Fund Ltd and others v Tucker and others 28-Oct-2005
The Defendants were accountants who had been sued through their partnership in KPMG. They had been granted a order for their costs. They sought payment for the time they had spent prersonally in preparing their defences.
Held: As professionals . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Costs

Updated: 29 April 2022; Ref: scu.183006

Johnson v Reed Corrugated Cases Ltd: 1992

The costs principles set out in the Masters’ Practice Notes and which endorsed the dual approach of assessing and adding an element to reflect the value at stake in litigation as well as the hourly expense rate of providing that service in all contentious work was applied.

Citations:

[1992] 1 All ER 169

Cited by:

Cited – A Local Authority v A Mother and Child CA 20-Dec-2000
A solicitor claimed the sum of andpound;59.00 for the cost of preparing his legal aid bill for assessment. The court had disallowed the costs of an in-house costs draftsman preparing the bill. The Costs Procedure Rules would generally allow . .
Cited – Jemma Trust Company Ltd v Liptrott, Forrester, Kippax Beaumont Lewis CA 24-Oct-2003
Solicitors sought to challenge an order disallowing a costs item for the administration of an estate which included a percentage of the estate.
Held: Despite advances in time recording, ‘we see no reason to say that it is no longer appropriate . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 29 April 2022; Ref: scu.182294

Berry v British Transport Commission: CA 1961

The plaintiff had been prosecuted by the defendant for pulling the emergency cord on a train without proper cause. After acquittal and payment of part of her costs, she sued for malicious prosecution, saying the damages were the part of her defence costs not awarded. The defendant replied that this was not claimable loss.
Held: The award of costs included no element of compensation, and that therefore her claim stood.
Devlin said: ‘the rule of the law of damages that if costs were awarded in hostile civil litigation nothing beyond the taxed amount could be recovered by the successful party from the unsuccessful party rested on the presumption that the award of costs (as between party and party) gave compensation for the cost of litigation so far as the law allowed, and the reason for the rule was that the law could not permit the question of the amount of costs to be litigated a second time between the same parties in new proceedings; it was however a fiction that costs taxed between party and party were the same as costs reasonably incurred and the law should recognise that an assessment of damage and a taxation of party and party costs were two different things. The rule should not be extended to criminal cases, because the principles governing the award of costs in civil and criminal cases were not the same; for in criminal cases a successful defendant had no prima facie entitlement to an award of costs, as the prosecution was brought in the public interest, and an award of costs need not be directed to quantifying the damage and indemnifying the accused according to a conventional measure.’
A charge of a statutory offence punishable only by fine would not support an action for malicious prosecution unless the charge was such as to injure the ‘fair fame’ (that is, was necessarily and naturally defamatory) of the person charged.

Judges:

Devlin LJ

Citations:

(1962) 1 QB 306, [1961] 3 All ER 65, [1961] 3 WLR 450, 105 Sol Jo 587

Statutes:

Railways Act 1868

Jurisdiction:

England and Wales

Citing:

Appeal from – Berry v British Transport Commission QBD 1961
Although in civil cases extra costs incurred in excess of the sum allowed on taxation could not be recovered as damages, the Court was not compelled to extend that rule (based as it is on a somewhat dubious presumption) to criminal proceedings in . .

Cited by:

Compared – Union Discount Company Ltd v Robert Zoller and Others, Union Cal Ltd CA 21-Nov-2001
The claimant had incurred costs in defending an action brought by the respondents in breach of an exclusive jurisdiction agreement. They appealed a judgement against them.
Held: The claim for the costs must succeed. The jurisdiction in which . .
Cited – Gregory v Portsmouth City Council CA 5-Nov-1997
The plaintiff councillor had been disciplined by the defendant for allegations. The findings were later overturned, and he now sought damages alleging malicious prosecution.
Held: The categories of malicious prosecution are closed, and it was . .
Cited – Botham v The Ministry of Defence QBD 26-Mar-2010
The claimant had been employed by the MOD. He was summarily dismissed for gross misconduct, and he was then placed on the list of persons unsuitable for work with children. He succeeded at the Tribunal in a claim for unfair and wrongful dismissal. . .
Cited – Gregory v Portsmouth City Council HL 10-Feb-2000
Disciplinary proceedings had been taken by the local authority against Mr Gregory, a council member, after allegations had been made that he had failed to declare conflicts of interest, and that he had used confidential information to secure a . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Costs, Damages

Updated: 28 April 2022; Ref: scu.180971

Summit Property Ltd v Pitmans: CA 19 Nov 2001

Whilst surprising, it was possible that a successful claimant could be ordered to pay the majority of a defendant’s costs. Under the Civil Procedure rules, it was proper to order costs on an issue by issue basis.

Judges:

Chadwick LJ

Citations:

[2001] EWCA Civ 2020

Jurisdiction:

England and Wales

Cited by:

Cited – Kastor Navigation Co Ltd and Another v AGF M A T and others ComC 17-Mar-2003
The court was able to make costs orders which differentiated between different stages and elements of a case. This might well result, as here, in a situation of a succesful claimant being ordered to pay 80% of the defendant’s costs, because of costs . .
Cited – Smithkline Beecham Plc and Another v Apotex Europe Ltd and others CA 16-Dec-2004
Following its earlier main judgment in the case, the court made use of the CPR to award costs on an appeal. The overall result had been that the patent was found to be valid but not infringed. There had been huge costs. Smithkline sought costs on an . .
Lists of cited by and citing cases may be incomplete.

Costs

Updated: 28 April 2022; Ref: scu.180361

Gwembe Valley Development Co Ltd (in Receivership) v Koshy and Others (No 4): ChD 18 Dec 2001

The respondent to the appeal had obtained an asset freezing order after the judgment subject to the appeal. On the appeal, the appellant itself sought a cross undertaking for costs.
Held: Although the normal practice was not to make such an order, in this case the leave to appeal had been against the substance of the underlying finding, and the point at issue was difficult. If he succeeded on the appeal, he would have no security for the costs incurred. An undertaking was properly required

Judges:

Rimer J

Citations:

Times 28-Feb-2002

Jurisdiction:

England and Wales

Litigation Practice, Costs

Updated: 28 April 2022; Ref: scu.167667

Regina v Barnet Justices ex parte Ribbans: Admn 18 Jun 1997

The applicant was an elderly illiterate lady. The magistrates had found that she had culpably neglected to pay her community charge. A suspended sentence of imprisonment was first imposed, and then effected in her absence. Held the Magistrates were under an obligation to enquire as to the adequacy of the service by recorded delivery. Costs were ordered against the magistrates despite their having only filed affidavit evidence.

Judges:

Mr Justice Laws

Citations:

[1997] EWHC Admin 566

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Erewash Borough Council and Ilkestone Justices ex parte Smedberg and Smedberg 1994
. .
Lists of cited by and citing cases may be incomplete.

Local Government, Taxes – Other, Magistrates, Costs

Updated: 28 April 2022; Ref: scu.137511

Regina v Legal Aid Board ex parte Tr M Broudie and Co (A Firm): QBD 11 Apr 1994

A taxing officer’s discretion as to ‘exceptional’ to remain unfettered.

Citations:

Times 11-Apr-1994

Jurisdiction:

England and Wales

Cited by:

See Also – Regina v Legal Aid Board Ex Parte R M Broudie and Co QBD 24-Nov-1994
LAB may refuse enhanced rates without opportunity for representations. . .
Lists of cited by and citing cases may be incomplete.

Costs

Updated: 28 April 2022; Ref: scu.87164

Regina v Hughes: CACD 4 Apr 1994

It was wrong to order the Defendant to pay Crown Court costs when the plea upon which he was finally sentenced had been rejected by the Magistrates.

Citations:

Ind Summary 04-Apr-1994

Jurisdiction:

England and Wales

Costs

Updated: 28 April 2022; Ref: scu.86902

In Re M (A Minor) (Local Authority’s Costs): FD 9 Jan 1995

The local authority applied for permission to refuse contact between two children and their parents. The magistrates refused the application and ordered the local authority to pay the father’s costs. The authority appealed.
Held: The appeal succeeded. There was no need for more formal guidelines on costs in child case – there will usually be no order.
Cazalet J said: ‘I have been urged . . to . . hold that there is a presumption of no order as to costs in child cases. I do not think that it is necessary to fetter a court’s discretion as to costs in this way, by applying presumptions or indeed more specific guide-lines. It seems to me that . . it would be unusual for a court to make an order for costs in a child case where the conduct of a party has not been reprehensible or the party’s stance has not been beyond the band of what is reasonable. Accordingly, any court in deciding the question of costs in child cases should, in my view, approach the question against that general proposition, and it would be a matter for the discretion of the court in the light of those criteria as to what order for costs should be made. In considering these questions the court will always look in particular at whether it was reasonable for one of the parties to have brought or to have maintained the proceedings . . As a matter of public policy . . where there is the exercise of nicely balanced judgment to be made by a local authority carrying out its statutory duties, the local authority should not feel than it is liable to be condemned in costs if, despite acting within the band of reasonableness . . it may form a different view to that which a court may ultimately adopt.’

Judges:

Cazalet J

Citations:

Ind Summary 09-Jan-1995, [1995] 1 FLR 533

Jurisdiction:

England and Wales

Citing:

Cited – Sutton London Borough Council v Davis (Number 2) FD 8-Jul-1994
The local authority had refused to register a childminder, who successfully appealed to the magistrates, who awarded costs in her favour. The local authority appealed against the costs order. In doing so the authority urged the court to apply, by . .

Cited by:

Cited – In re T (Children) SC 25-Jul-2012
The local authority had commenced care proceedings, alleging abuse. After lengthy proceedings, of seven men and two grandparents, all but one were exonerated. The grandparents had not been entitled to legal aid, and had had to mortgage their house . .
Lists of cited by and citing cases may be incomplete.

Children, Costs

Updated: 28 April 2022; Ref: scu.85815

Nader v Customs and Excise Commissioners: CA 1 Nov 1993

VAT tribunal not within Litigants in Person (Costs and Expenses) Act 1975.

Citations:

Ind Summary 01-Nov-1993

Jurisdiction:

England and Wales

Costs

Updated: 28 April 2022; Ref: scu.84154

Melville v Southwark Crown Court: QBD 13 Nov 1995

Successful no case submission should have costs order despite possible alternative.

Citations:

Ind Summary 13-Nov-1995

Jurisdiction:

England and Wales

Costs

Updated: 28 April 2022; Ref: scu.83621

McPhilemy v Times Newspapers Ltd (No 4): CA 3 Jul 2001

The fact that a defendant had not acted unreasonably in pursuing a case after an offer of settlement, was not a reason for not awarding costs to be paid on an indemnity basis. Such an award had no penal element, and did not first require any condemnation of the plaintiff. Nor was it wrong to award interest on the costs. The purpose of the rule was to correct the perceived injustice of the general rule against awarding interest on costs in defamation cases. The general rule that interest is not awarded on damages costs is because the assessment of damages by the jury is intended to reflect the damage to reputation up to the date of the award.
Simon Brown LJ said: ‘When dismissing the principal appeal, we left over for decision whether The Times should pay the respondent’s costs of that appeal on a standard or an indemnity basis. Clearly rather more of a stigma attaches to an indemnity costs order made in this context than in the context of a rule 36.21 offer – although even then no moral condemnation of the appellant’s lawyers is necessarily implied. .’

Judges:

Lord Woolf MR

Citations:

Times 03-Jul-2001, [2001] EMLR 858

Statutes:

Civil Procedure Rules 36.21

Jurisdiction:

England and Wales

Citing:

See also – McPhilemy v Times Newspapers Ltd and Others (2) CA 26-May-1999
The new Civil Procedure Rules did not change the circumstances where the Court of Appeal would interfere with a first instance decision, but would apply the new rules on that decision. Very extensive pleadings in defamation cases should now be . .
See Also – McPhilemy v Times Newspapers Ltd and Others CA 7-Jun-2000
The new civil procedure rules did not change the basic rules of evidence. The old rule prevented a party putting in evidence a witness statement which he knew conflicted substantially with the case he wished to place before the jury, and then be . .
See Also – McPhilemy v Times Newspapers Limited; Clarke and Neil (1) CA 25-Nov-1998
. .
See Also – McPhilemy v Times Newspapers Ltd and others CA 12-Jun-2001
. .
See Also – McPhilemy v Times Newspapers Ltd; Liam Clarke and and Andrew Neil (No 3) CA 12-Jun-2001
In defamation proceedings the defendant had invited one issue to be left to the jury. After losing the case, the defendant sought to appeal, arguing that the jury’s verdict was perverse. It was held that such an appeal amounted to an abuse of . .

Cited by:

See also – McPhilemy v Times Newspapers Ltd; Liam Clarke and and Andrew Neil (No 3) CA 12-Jun-2001
In defamation proceedings the defendant had invited one issue to be left to the jury. After losing the case, the defendant sought to appeal, arguing that the jury’s verdict was perverse. It was held that such an appeal amounted to an abuse of . .
See also – McPhilemy v Times Newspapers Ltd and Others CA 7-Jun-2000
The new civil procedure rules did not change the basic rules of evidence. The old rule prevented a party putting in evidence a witness statement which he knew conflicted substantially with the case he wished to place before the jury, and then be . .
See Also – McPhilemy v Times Newspapers Ltd and Others (2) CA 26-May-1999
The new Civil Procedure Rules did not change the circumstances where the Court of Appeal would interfere with a first instance decision, but would apply the new rules on that decision. Very extensive pleadings in defamation cases should now be . .
See also – McPhilemy v Times Newspapers Limited; Clarke and Neil (1) CA 25-Nov-1998
. .
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – Reid Minty (a firm) v Taylor CA 2002
New CPR govern Indemnity Costs awards
The defendant had successfully defended the main claim and now appealed against the refusal of an order for costs on an indemnity basis even though judge thought that the claimants had behaved unreasonably. He had said that some conduct deserving of . .
Lists of cited by and citing cases may be incomplete.

Costs, Defamation

Updated: 28 April 2022; Ref: scu.83582

Elliott and Another v Pensions Ombudsman and Others: ChD 20 Nov 1997

Costs of appeal against Ombudsman’s determination to be assessed according to extent of participation.

Citations:

Gazette 26-Nov-1997, Times 20-Nov-1997, [1998] OPLR 21

Jurisdiction:

England and Wales

Cited by:

Cited – Moore’s (Wallisdown) Ltd v Pensions Ombudsman and Another; Royal and Sun Alliance Life and Pensions Ltd v Same ChD 21-Dec-2001
The applicants had successfully appealed against decisions of the Pensions Ombudsman. They sought their costs. The Ombudsman argued that the costs should be limited to the proportion by which they had in fact contributed to the need for an appeal. . .
Lists of cited by and citing cases may be incomplete.

Costs

Updated: 28 April 2022; Ref: scu.80297

Barnard v Gorman: HL 1941

The court considered awarding costs in a judicial review case: ‘There will be no order as to costs in this House, as the Crown has very properly agreed (since this is a case of general importance, and the respondent is a poor man) to pay the costs of all parties in any event.’

Judges:

Viscount Simon LC

Citations:

[1941] AC 378

Jurisdiction:

England and Wales

Citing:

Cited – Bowditch v Balchin 1855
Pollock CB said: ‘In a case in which the liberty of a subject is concerned we cannot go beyond the natural construction of the statute.’ . .

Cited by:

Cited – Regina v Human Fertilisation and Embryology Authority ex parte DB Admn 17-Oct-1996
Sperm which had been taken from a dying and unconscious man may not be used for the later insemination of his surviving wife. The Act required his written consent.
Held: Community Law does not assist the Applicant. The question had been . .
Cited – Liversidge v Sir John Anderson HL 3-Nov-1941
The plaintiff sought damages for false imprisonment. The Secretary of State had refused to disclose certain documents. The question was as to the need for the defendant to justify the use of his powers by disclosing the documents.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Administrative, Costs

Updated: 28 April 2022; Ref: scu.197895

Robertson Research International Ltd v ABG Exploration BV et al: QBD 3 Nov 1999

It was proper to order costs against a non-party, where the losing party had merely been a front man. The rule is necessary to protect those who take a proper part in litigation whether as claimant or respondent should not be faced artificially with a man of straw.

Citations:

Times 03-Nov-1999

Jurisdiction:

England and Wales

Costs

Updated: 28 April 2022; Ref: scu.88812

Boston Trust Company Ltd and Another (Trustees of Erutuf Trust) v Szerelmey Ltd and Others: ChD 13 Nov 2020

Judges:

Charles Morrison (sitting as a Deputy Judge of the High Court)

Citations:

[2020] EWHC 3042 (Ch)