Wyatt v Vince: SC 11 Mar 2015

Long delayed ancillary relief application proceeds

The parties had divorced some 22 years before, but no ancillary relief order had been made to satisfy the application outlined in the petition. The parties when together had lived in relative poverty, but H had subsequently become wealthy. W applied for lump sum provision. W appealed against order made under the rules dismissing her claim.
Held: W’s appeal succeeded. The matter was remitted for consideration first for mediation: ‘It may however be helpful to suggest that the major issues requiring limited investigation by way of oral evidence seem at this stage to be the wife’s delay on the one hand and the disparate contributions to the care of the children on the other. These are, to my mind, the two magnetic factors. They pull in opposite directions and the question may ultimately prove to be whether, in the light also of the five difficulties identified in para 30 above, the wife’s delay is so potent a factor as not just to reduce but even to eliminate what might otherwise have been awarded to her by reference to contributions and possibly also to needs.’
As to the costs contribution order, the original order was made before the amendment to the 1973 Act, and under A v A. The costs allowance order should be restored and the Court of Appeal’s repayment order set aside.
Lord Wilson described FPR PD4A para 2.4 as ‘an unhelpful curiosity’: ‘I suggest that Rule 4.4(1) of the family rules has to be construed without reference to real prospects of success. The three sets of facts set out in paragraph 2.1 of Practice Direction 4A exemplify the limited reach of rule 4.4(1)(a), valuable though no doubt it sometimes is. The touchstone is, in the words of paragraph 2.1(c) of the Practice Direction, whether the application is legally recognisable. Applications made after the applicant had remarried or after an identical application had been dismissed or otherwise finally determined would be examples of applications not legally recognisable. Since the greater includes the lesser, it is no doubt possible to describe applications which fall foul of Rule 4.4(1) as having no real prospect of success. Nevertheless paragraph 2.4 of the Practice Direction remains in my view an unhelpful curiosity which cannot override the inevitable omission from the family rules of a power to give summary judgment.’

Lady Hale, Deputy President, Lord Clarke, Lord Wilson, Lord Hughes, Lord Hodge
[2015] UKSC 14, [2015] 1 FLR 972, [2015] 1 WLR 1228, [2015] Fam Law 524, [2015] 1 FCR 566, [2015] 2 All ER 755, [2015] WLR(D) 124, UKSC 2013/0186
Bailii, Bailii Summary, SC, SC Summary, WLRD
Family Proceedings Rules 24.2, Matrimonial Causes Act 1973 22ZA
England and Wales
Citing:
Appeal from – Vince v Wyatt CA 8-May-2013
The parties had divorced some twenty years previously, but apparently without ancillary relief orders, the parties at the time being relatively poor. H was now wealthy and W applied for lump sum provision. H replied that there was no no evidence . .
Cited – A v A (Maintenance Pending Suit: Payment of Legal Fees) FD 2001
The court made an order to provide that the monies paid by way of maintenance pending suit in respect of any matter can be brought into account by the judge making the order in the ancillary relief proceedings. . .
Appeal from – Vince v Wyatt CA 13-Jun-2013
(Subsidiary judgment) The former wife sought financial provision by way of a lump sum payment, but the application was made some twenty years after the divorce. Subsequently, H had become wealthy.
Held: The court set aside the orders of the . .
Cited – Jenkins v Livesey (formerly Jenkins) HL 1985
The parties had negotiated through solicitors a compromise of ancillary relief claims on their divorce. They agreed that the house should be transferred to the wife in consideration of her release of all other financial claims. The wife however . .
Cited – Swain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
Cited – Bridgeman v Brown CA 19-Jan-2000
A statement of case is not suitable for striking out if it raises a serious live issue of fact which can only be properly determined by hearing oral evidence. Hale J, said: ‘the essence of a strike out is that one does not look at the evidence on . .
Cited – Currey v Currey CA 18-Oct-2006
Where one party in an ancillary relief claim was not entitled to legal aid, but showed a need for legal representation which he or she could not afford, the court could make an order requiring the other party to make a costs allowance. The nature of . .
Cited – Fairclough Homes Ltd v Summers SC 27-Jun-2012
The respondent had made a personal injury claim, but had then been discovered to have wildly and dishonestly exaggerated the damages claim. The defendant argued that the court should hand down some condign form of punishment, and appealed against . .
Cited – Sears Tooth (A Firm) v Payne Hicks Beach (A Firm) and Others FD 24-Jan-1997
An agreement to deduct legal costs of proceedings from a divorce award was not champertous or unlawful. . .
Cited – Crossley v Crossley CA 19-Dec-2007
The parties had entered into a pre-nuptial agreement. On the ancillary relief proceedings on divorce, the husband sought to have the agreement taken into account by the court. It decided that the wife should give reasons why she considered that the . .
Cited – Pearce v Pearce CA 1980
H and W had separated in 1969 and for nine years the wife cared single-handedly for the three children. Until 1977 the husband was an undischarged bankrupt and had made no financial contribution to the running of the wife’s household, which was . .
Cited – Twinsectra Ltd v Yardley and Others HL 21-Mar-2002
Solicitors acted in a loan, giving an undertaking as to its application. In breach of that undertaking they released it to the borrower. The appellants appealed a finding of liability as contributors to the breach.
Held: ‘Money in a . .
Cited – M v L FD 28-Feb-2003
Ancillary relief application after long term separation – substantial contribution on the part of the wife in caring for the children, a 30-year delay in her bringing her application (following an overseas divorce) and a significant capital award . .

Cited by:
Cited – Dellal v Dellal and Others FD 1-Apr-2015
The families disputed a claim under the 1975 Act. The defendants now sought summary dismissal of the claim. . .

Lists of cited by and citing cases may be incomplete.

Family, Costs

Leading Case

Updated: 01 November 2021; Ref: scu.544224

Medway Oil and Storage Co Ltd v Continental Contractors Ltd: HL 1929

The court set down the principles to be applied when apportioning costs between a claim and counterclaim. Where both the claim and the counter-claim are dismissed with costs, the amount that the Claimant will recover in defeating the counter-claim are the costs that arose solely defending the counter-claim, (for example counsel’s fee for settling the defence to counterclaim) together with costs that were common to both claim and counterclaim. Absent a special direction by the court as to the apportionment of costs between the parties, any such order made on a detailed assessment will produce an element of injustice between the parties in a case where the same issue arises on both claim and counterclaim. Viscount Haldane said: ‘The distinction, between division and apportionment may in certain circumstances be a thin one’ but it was fundamental.
There may be items which on their face are single but in reality double, that is, in part relate to the claim and in part relate to the counter-claim; and, will add, in part to one issue and in part to another: ‘In such cases there must be a division’.

Viscount Haldane
[1929] AC 88
England and Wales
Cited by:
Cited – Horth v Thompson QBD 6-Jul-2010
After a personal injury claim, the judge had apportioned liability and ordered each side to pay the costs of the other. The case had been allocated to the fast track.
Held: The appeal failed. The existence of the Conditional Fee Agreement did . .
Confirmed – Burchell v Bullard and others CA 8-Apr-2005
Each side had succeeded in part on their claims and counterclaims, but the Respondent was andpound;5,000 out of pocket. Each party had been ordered to pay the costs of the other.
Held: The appeal succeeded. The judge had correctly recognised . .
Cited – Parkes v Martin CA 9-Jul-2009
The claimant appealed against the costs order made after a trial following a road traffic accident, awarding blame as to 65% for the Claimant and 35% to the defendant. The Defendant had requested costs in that proportion. After reminding himself of . .

Lists of cited by and citing cases may be incomplete.

Costs

Leading Case

Updated: 01 November 2021; Ref: scu.420382

Wakefield (T/A Wills Probate and Trusts of Weybridge) v Ford and Another: QBD 29 Jan 2009

The claimant, who advised in the preparation of wills, claimed in defamation against the defendant solicitors saying in a letter to another firm of solicitors that he had admitted negligence. There had been a ruling that the occasion had qualified privilege. The claimant had tried to assert malice. He eventually sought to be allowed to withdraw by accepting an earlier offer, but still asserted malice.
Held: In view of the threat there was no continuing offer capable of acceptance. He had conducted the litigation unreasonably, and costs were awarded on an indemnity basis.

Eady J
[2009] EWHC 122 (QB)
Bailii
England and Wales
Citing:
Cited – Excelsior Commercial and Industrial Holdings Ltd v Salisbury Hammer Aspden and Johnson (A Firm) CA 12-Jun-2002
The court was asked as to when it is appropriate to order costs on an indemnity basis. Waller LJ said: ‘The question will always be: is there something in the conduct of the action or the circumstances of the case which takes the case out of the . .
Cited – McKenna v MGN Ltd QBD 16-Jul-2007
Eady J considered the consequences in costs of a claimant’s assertion of malice in a failed defamation case: ‘There are numerous examples of libel actions in which the fact that malice has been pleaded causes delay and increased cost out of all . .

Lists of cited by and citing cases may be incomplete.

Defamation, Costs

Updated: 01 November 2021; Ref: scu.280258

Howman v The Queen Elizabeth Hospital Kings Lynn (Practice and Procedure : Costs): EAT 30 Apr 2013

EAT PRACTICE AND PROCEDURE – Costs
The employment tribunal ordered the employee, following the dismissal of his claim for unfair dismissal, to pay his employer’s costs of defending the claim, those costs to be the subject of a detailed assessment by the county court on the indemnity basis. The appeal was on the ground that the assessment should not have been on the indemnity basis, and that the tribunal had failed to take into account the employee’s inability to pay a large award of costs. The appeal was allowed on the basis that the tribunal did not appear to have considered (a) the effect of the order it made, which was that the employee would have to sell his home where he lived with his wife and two dependant children, his half-share in the home representing a very substantial proportion of his life savings, and (b) the possibility of putting a cap on the amount he had to pay. The EAT also held that an order for indemnity costs should only be made when the conduct of the paying party had taken the case away from even that very limited number of cases in the employment tribunal when it is appropriate to make an order for costs.

Keith J
[2013] UKEAT 0509 – 12 – 3004
Bailii
England and Wales

Employment, Costs

Updated: 01 November 2021; Ref: scu.511057

The Law Society of England and Wales, Regina (on The Application of) v The Lord Chancellor: Admn 15 Jun 2010

Costs restriction not made under Act

The respondent had introduced rules which restricted the levels of costs which might be awarded from central funds to a successful defendant in a criminal trial who had take private representation. The amendment was made under powers in the 1985 Act, and restricted the sums to those which might be awarded to a legally aided defendant. The majority of respondents to the consultation were against the proposed amendments. The Law Society said that the new Regulations set out to achieve purposes not allowed under the 1985 Act.
Held: Judicial review was granted. The Rules could only be brought in to satisfy a purpose of the Act – those set out in Part II of the Act. The respondent did not dispute that private lawyers could not usually be found to act at legal aid rates. It was not a legitimate aim for the respondent to seek to mould the market to change that situation. Nor was it for the Lord Chancellor to specify what rates are reasonable: ‘The obligation is to provide a sum of money which is reasonably sufficient to compensate the successful defendant. The word ‘sufficient’ pre-supposes that there is some measure to determine whether the amount paid satisfies that criterion of sufficiency or not. It must be sufficient by reference to some particular criterion or criteria. In this case the relevant measure is the principle of compensation, albeit one which is constrained by considerations of what is reasonable and proper expenditure.’

Elias LJ, Keith J
[2010] EWHC 1406 (Admin), [2010] WLR (D) 151, [2011] 1 All ER 32, [2010] 5 Costs LR 805, [2011] 1 WLR 234, [2010] ACD 76
Bailii
Costs in Criminal Cases (General) (Amendment) Regulations 2009, Prosecution of Offences Act 1985 20
England and Wales
Citing:
Cited – Regina v The South Devon Magistrates Court ex parte Hallett Admn 1999
The costs assessor had refused costs for counsel on the grounds that they were unreasonably incurred because the case was not sufficiently grave.
Held: There was nothing in the statutory language to justify the adoption of such a high test of . .
Cited – Balchin v South Western Magistrates’ Court Admn 2008
The successful defendant had been refused the costs of paying his counsel.
Held: The assessor was wrong in asking himself whether the employment of counsel was necessary; that was the wrong test. The only issue was whether it was reasonable. . .
Cited – Regina v Wilkinson 1980
The court was attracted by the Law Society’s submission that the general principles that costs should reflect the amount at stake and the expense of providing the service, should govern also court attendances during litigation. The court identified . .
Cited – KPMG Peat Marwick McLintock v The HLT Group QBD 18-Mar-1994
The plaintiffs claimed for professional fees, and the defendants counter-claimed alleging negligence. The plaintiffs obtained summary judgment under Order 14 with an order for costs on the standard basis, to be taxed if not agreed. The plaintiffs . .
Cited – Regina v Dudley Magistrates’ Court, ex parte Power City Stores Limited and Another CA 1990
The defendant sought to recover the cost of employing leading counsel to defend him in the magistrates court after succeeding. The magistrates had disallowed the costs of leading counsel.
Held: The fact that the defendant could have obtained . .
Applied – Padfield v Minister of Agriculture, Fisheries and Food HL 14-Feb-1968
Exercise of Ministerial Discretion
The Minister had power to direct an investigation in respect of any complaint as to the operation of any marketing scheme for agricultural produce. Milk producers complained about the price paid by the milk marketing board for their milk when . .
Cited – Lunt, Regina (On the Application of) vLiverpool City Council and Another Admn 31-Jul-2009
Blake J endorsed a six step approach which a public authority will need to address in relation to its duty to make adjustments to avoid indirectly discriminating: ‘1. Did the [public authority] have a practice policy or procedure?
2. Did that . .

Lists of cited by and citing cases may be incomplete.

Costs, Administrative

Updated: 01 November 2021; Ref: scu.416742

Thomson v Berkhamsted Collegiate School: QBD 2 Oct 2009

Costs were to be sought against third parties to the action. A pupil had taken court action against the school seeking damages, alleging that it had failed to protect him from bullying. His action was discontinued. The school now sought its costs (andpound;250,000) from his parents, who had funded their son’s claim. The school sought disclosure of various documents.
Held: The court had power to make any necessary ancillary orders in a costs application. General principles were set down: ‘i) The order for payment of costs by a non-party would always be exceptional and any application should be treated with considerable caution.
ii) The application should normally be determined by the trial judge who could give effect to any views he had expressed as to the conduct of the non-party without constituting bias or the appearance of bias.
iii) The mere fact that someone has funded proceedings would generally be insufficient to support an application that they pay the costs of the successful party. Pure funders, as described at the case of Hamilton v Al-Fayed No. 2 [2002] EWCA Civ 665 reported [2003] QB 117 at [40], will not normally have the discretion exercised against them. That definition of ‘pure funders’ means those with no personal interest in the litigation, who do not stand to benefit from it, are not funding it as a matter of business and in no way seek to control its course.
iv) It is relevant but not decisive that the defendant has warned the non-party of the intention to seek costs or that the non-party’s funding has caused the defendant to incur the costs it would not otherwise have had to incur;
v) The conduct of the non-party in the course of the litigation and other than as a pure witness of material fact is of relevance and potential weight.
vi) Most of the decided cases on the exercise of the court’s discretion under section 51 concerned commercial funders or corporate bodies closely associated with the party who incurred the costs liability which they were unable to satisfy. In the family context, the courts have been reluctant to impose third party costs orders against those family or friends who in the interests of access to justice assist a party to come to court for philanthropic and disinterested reasons.
vii) In determining these applications the court must exercise its case management powers to ensure that the application does not turn into satellite litigation that results in prolonged, complex and over-extended arguments about costs about costs. For that reason the inherent strength of the application is always a relevant factor.’
In this case the parents were not acting in a disinterested fashion. There was a reasonable prospect of the claim for third party costs succeeding, and appropriate disclosure was ordered.

Blake J
[2009] EWHC 2374 (QB), [2010] CP Rep 5
Bailii
Supreme Court Act 1981, Civil Procedure Rules 48.2
England and Wales
Citing:
Cited – Dymocks Franchise Systems (NSW) Pty Ltd v Todd and others (No. 2) PC 21-Jul-2004
PC (New Zealand) Costs were sought against a non-party, following an earlier determination by the Board.
Held: Jurisdiction to make such an order was not complete. Where the order sought was against a . .
Cited – Grecoair Inc v Tilling and others QBD 14-Jan-2009
The court has power to exercise disclosure orders in order to facilitate in an economical fashion a fair hearing of the application, although disclosure is often made without formal order. . .
Cited – PR Records Ltd v Vinyl 2000 Limited and others ChD 15-Jan-2008
The defendant in the main action sought a third party costs order. . .

Lists of cited by and citing cases may be incomplete.

Costs, Litigation Practice, Civil Procedure Rules

Updated: 01 November 2021; Ref: scu.375580

Smoke Club Ltd, Regina (on The Application of) v Network Rail Infrastructure Ltd: Admn 29 Oct 2013

The claimant had been refused leave to bring judicial review. It then renewed its application before finally wthdrawing it. The court now considered liability for costs.
Held: ‘There are particular reasons for the particular rules governing costs at the paper and oral permission stage in judicial review, which are reflected in the decision and principles in Mount Cook. It would be extremely odd if a claimant could save himself the costs liability by proceeding further with judicial review proceedings so that he failed at the oral renewal stage and did not have to pay the costs of the successful defendant, but was liable to pay the costs that might have been incurred after the acknowledgment of service if he served a notice of discontinuance. ‘

Ouseley J
[2013] EWHC 3830 (Admin), [2014] 2 Costs LO 123
Bailii
Civil Procedure Rules 38.6
England and Wales
Citing:
Preferred – Mount Cook Land Ltd and Another v Westminster City Council CA 14-Oct-2003
The applicants had sought judicial review of the defendant’s grant of planning permission for the redevelopment of the former CandA building in Oxford Street. Though the application for leave to apply had been successful, and a full hearing took . .
Cited – Davey v Aylesbury Vale District Council CA 15-Nov-2007
The court was asked whether, as a matter of law or of practice, an order for costs made in favour of a successful respondent to judicial review proceedings includes costs incurred prior to the grant of permission unless these are expressly excluded. . .
Cited – Ayr Harbour Trustees v Oswald 1883
The appellant trustees could not competently preclude themselves from exercising their powers under the Ayr Harbour Act in respect of certain land acquired by them for the purposes of that statute bearing in mind that their discretionary powers were . .

Lists of cited by and citing cases may be incomplete.

Costs, Judicial Review

Updated: 01 November 2021; Ref: scu.536022

Horizon Security Services Ltd v Ndeze and Another: EAT 18 Jun 2014

EAT Practice and Procedure : Disclosure – Costs – On an application under rule 34A(2A) EAT Rules 1993, as amended, the EAT has a broad discretion to make a costs order in favour of a successful Appellant in the sum of any fee paid under a notice issued by the Lord Chancellor. There was no requirement that the thresholds laid down under r.34A(1) need to have been crossed by a Respondent before such an award was made. Although costs did not simply follow the event in the EAT – and allowing that exceptions might need to be made in particular cases – the introduction of fees had changed the landscape and the general expectation must be that a successful Appellant will be entitled to recover the fees paid from a Respondent that had actively sought to resist the appeal – Portnykh v Nomura International Plc UKEAT/0448/13/LA followed.
Application under r.34A(2A) duly allowed. PCS ordered to pay costs in the sum of andpound;1,600 to Horizon

Eady QC HHJ
[2014] UKEAT 0071 – 14 – 1806, [2014] IRLR 854
Bailii
England and Wales
Citing:
Cited – Portnykh v Nomura International Plc EAT 5-Nov-2013
EAT Practice and Procedure : Admissibility of Evidence – The Employment Judge had misdirected herself on the ‘without prejudice’ rule. She had looked only in the correspondence itself for an actual ‘dispute’ and . .

Lists of cited by and citing cases may be incomplete.

Employment, Costs

Updated: 01 November 2021; Ref: scu.527201

Brook v Reed: CA 25 Mar 2011

The court was asked ‘What relation should the costs and remuneration bear to the circumstances, and in particular the size, of the bankruptcy?’ The bankrupt had considered that the costs first awarded to the trustee in bankruptcy and the trustee’s solicitors were disproportionate. On appeal they had been reduced, but he appealed again seeking a further reduction.
Held: The appeal failed. The stage has been reached where a court hearing an application to fix or to challenge the remuneration of an office-holder should proceed on the basis that the Practice Statement is to be applied, except in so far as in the circumstances of the particular case the party objecting to its application shows that it would be wrong in principle to do so. On this basis: ‘ the principles set out in the Practice Statement should have been expressly applied, but I do not consider that this omission provides a ground on which this appeal should be allowed. Judge Behrens applied what were fundamentally the relevant criteria to the facts of this case. He examined in some detail, with the benefit of the assessors, the remuneration claimed and the work done, in terms of value more than time, bearing always in mind the need to arrive at a figure which was proportionate to the circumstances of the bankruptcy. It was not open to the Judge wholly to disregard the time spent by the trustee, both because it is a relevant, but not decisive, factor in any case and because the basis of the trustee’s remuneration had been fixed at the meeting of creditors as ‘time properly given’. Equally, however, this basis of remuneration does not absolve the trustee from scrutiny of his remuneration, as required by the word ‘properly’. Time is properly spent if it meets the criteria set out in the Practice Statement, applied with regard to all the circumstances of the case.’
Though the judge should have made express reference to and placed reliance upon the Practice Statement, in this case he had applied the correct principles and the appeal failed. The size of the assets is not the only consideration, and here the bankrupt’s own failure to make progress on the annulment had added to the costs.
Sir David Richards said: ‘The duties of an office-holder are not confined to the realisation and distribution of assets. There are statutory duties which must be performed, such as communicating with creditors and reporting on the events leading to the insolvency, with particular regard to the conduct of the bankrupt or directors of an insolvent company. The office-holder may need to investigate the existence of possible assets or the merits of possible claims, which may in the event not lead to assets available for distribution, although in all cases the office-holder will be expected to exercise commercial judgment in pursuing such matters.’
and ‘the stage has been reached where a court hearing an application to fix or to challenge the remuneration of an office-holder should proceed on the basis that the Practice Statement is to be applied, except in so far as in the circumstances of the particular case the party objecting to its application shows that it would be wrong in principle to do so. In my judgment, the statement of guiding principles in the Practice Statement is a correct statement of the principles generally applicable to issues relating to the remuneration of office-holders, although the particular circumstances of a case might call for the formulation of a further principle.

Arden, Black LJJ, David Richards J
[2011] BPIR 583, [2011] EWCA Civ 331, [2011] NPC 34, [2011] 4 Costs LR 622, [2011] BCC 423, [2012] 1 WLR 419, [2012] 1 BCLC 379, [2011] 3 All ER 743
Bailii
Insolvency Rules 1986 6.138(1), Practice Statement: The Fixing and Approval of the Remuneration of Appointees (2004)
England and Wales
Citing:
Cited – In Re Independent Insurance Co Ltd (No 2) 2003
Ferris J was required to consider the insolvency office-holders’ remuneration, assisted by a solicitor with wide insolvency experience, whose report sets out the general principles then accepted by the insolvency profession as the yardstick for . .
Cited – Upton v Taylor and Colley 1999
Where it is always clear that there will be a surplus after creditors have been paid in full, the creditors have little or no commercial interest in the liquidator’s remuneration. . .
Cited – Simion v Brown ChD 14-Mar-2007
Remuneration of trustee – amount claimed exhausting assets realised. The court approved and applied the Practice Statement 2004. David Richards J said: ‘The task for the court is to arrive at a level of remuneration which balances the various . .
Cited – Hunt v Yearwood-Grazette ChD 7-Apr-2009
The bankrupt wished to discharge his bankruptcy debt, but challenged the trustee’s fees.
Held: The court approved application of the Practice Statement 2004.
Proudman J said: ‘The court’s task is to balance all the various criteria, . .
Cited – Secretary of State for Communities and Local Government v Bovale Ltd and Another CA 11-Mar-2009
The applicant had sought to quash a refusal of its plannng application. An order had been made for the service of evidence, and the judge had set down an order which was expressed to be of more general application. The Secretary of State now . .
Cited – Jacob and Another v UIC Insurance Company Ltd and Another ChD 2-Nov-2006
. .
Cited – Re Super Aguri F1 Ltd 2011
. .
Cited – Barker v Bajjon 2008
. .
Cited – Mirror Group Newspapers Plc v Maxwell and Others (No 2) ChD 15-Jul-1997
The Court reminded insolvency practitioners of fiduciary duties to creditors when refusing application for further payment on account of costs. Ferris J considered the principles applicable to fixing the remuneration of receivers of the estate of . .
Cited – In Re Carton Ltd 1923
The court considered the remuneration of a liquidator in a voluntary liquidation.
Held: The court refused to authorise remuneration at an unusually generous percentage rate, which had been approved by the committee of inspection, on the . .
Cited – In Re Cabletel Installations Ltd 1-Jul-2004
The court criticised the remuneration claimed by the insolvency office-holder were work had been carried out at too senior a level, and the calculation was an uncritical application of the time spent, and where there were more and lengthier meetings . .
Cited – Freeburn v Hunt 2010
. .
Cited – Home Office v Lownds (Practice Note) CA 21-Mar-2002
The respondent had been ordered to pay costs of over pounds 16,000 in an action for clinical negligence where the final award was only pounds 4,000. The Secretary of State appealed claiming that the costs were disproportionate.
Held: In such . .
Cited – Peri v Engel ChD 29-Apr-2002
A third party agreed to pay the bankrupt’s debts. He applied for the bankruptcy to be annulled, and for the trustee’s costs to be assessed and fixed at a reasonable level under section 303. The trustee appealed the costs order saying that the . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Costs

Updated: 01 November 2021; Ref: scu.430847

Media Cat Ltd v Adams and Others: PCC 18 Apr 2011

The claimants had begun copyright infringement cases. Having been refused a request to be allowed to withdraw the cases as an abuse, their solicitors now faced an application for a wasted costs order.
Held: The court only has jurisdiction to make a wasted costs order when the impugned conduct has caused a waste of costs and only to the extent of such costs wasted. A causal link is essential. There is both a merits and a proportionality test. There were several doubts about the methods chosen by the original claimants and their solicitors but a court on a wasted costs should be cautious so as to avoid satellite litigation. Stage 1 wasted costs orders were made, but limited to issues as to revenue sharing and the service of the notices of discontinuance, later found to havd been an abuse of process. Furthermore, there was a good arguable case that ACS:Law / Mr Crossley woud be liable for the costs of this case and he was added as a party for that purpose.

Birss QC J
[2011] EWPCC 10, [2011] FSR 29
Bailii
Superior Courts Act 1981 51(6), Civil Procedure Rules 48 53.4
England and Wales
Citing:
Principal judgment – Media CAT Ltd v Adams and Others PCC 8-Feb-2011
The claimants had begun copyright infringement proceedings claiming that they represented the rights holders in pornographic films said to have been file shared by the defendants. Faced with insuperable difficulties, they purported to withdraw the . .
Cited – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
Cited – Morton-Norwich Products Inc v Intercen Ltd 1976
Graham J addressed the question of whether a Dutch defendant who consigned furazolidone by air from Holland on terms cif Gatwick but denied liability for patent infringement was liable in English patent proceedings.
Held: They were liable as . .
See Also – Media Cat Ltd v Billington PCC 17-Dec-2010
. .
Cited – British Steel Corporation v Granada Television Ltd HL 7-May-1980
The defendant had broadcast a TV programme using material confidential to the plaintiff, who now sought disclosure of the identity of the presumed thief.
Held: (Lord Salmon dissenting) The courts have never recognised a public interest right . .
Cited – Ridehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .
Cited – Medcalf v Mardell, Weatherill and Another HL 27-Jun-2002
The appellants were barristers against whom wasted costs orders had been made. They appealed. They had made allegations of fraud in pleadings, but without being able to provide evidence to support the allegation. This was itself a breach of the Bar . .
Cited – Daly v Hubner ChD 9-Jul-2001
Etherton J considered a wasted costs order application.
Held: The case did not satisfy the merits test in paragraph 53.6(1)(a) CPD. Etherton J considered the proportionality test in paragraph 53.6(1)(b) also. In that case the costs in issue . .
Cited – Regent Leisuretime Ltd and others v Skerrett and Another CA 4-Jul-2006
The court set aside a first stage wasted costs order made by the judge below against the solicitors Reynolds Porter Chamberlain. The judge had been given no indication of the costs claimed and did not have material on which he could form a view as . .
See Also – Media CAT Ltd v A PCC 1-Dec-2010
The claimant sought to make use of the Request for Judgment procedure.
Held: The procedure was not appropriate in this case. There were sufficient disturbing circumstances about the case to warrant a further on notice hearing. . .
Cited – Wallersteiner v Moir (No 2) CA 1975
The court was asked whether Moir would be entitled to legal aid to bring a derivative action on behalf of a company against its majority shareholder.
Held: A minority shareholder bringing a derivative action on behalf of a company could obtain . .
Cited – Regina (Factortame Ltd and Others) v Secretary of State for Transport, Local Government and the Regions (No 8) CA 3-Jul-2002
A firm of accountants had agreed to provide their services as experts in a case on the basis that they would be paid by taking part of any damages awarded. The respondent claimed that such an agreement was champertous and unlawful.
Held: The . .
Cited – Carborundum Abrasives Ltd v Bank of New Zealand (No 2) 1992
(New Zealand High Court) The court considered the position of company directors in litigation by their companies: ‘The directors of a company may frequently be in a position different from other non-parties with a direct financial interest in . .
Cited – Jackson and others v Thakrar and others (No.4) TCC 22-Mar-2007
Judge Coulson reviewed the authorities on causation in relation to third party costs orders and said: ‘Plainly, in a Section 51 application, what matters is whether the funding provided by the non-party caused the applicant to incur costs which he . .
Cited – Arklow Investments Ltd v Maclean 19-May-2000
(High Court of New Zealand) The court considered the potential personal responsibility of a directors for costs incurred by the company in litigation: ‘Where a person is a major shareholder and dominant director in a company which brings . .
Cited – Dymocks Franchise Systems (NSW) Pty Ltd v Todd and others (No. 2) PC 21-Jul-2004
PC (New Zealand) Costs were sought against a non-party, following an earlier determination by the Board.
Held: Jurisdiction to make such an order was not complete. Where the order sought was against a . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, Legal Professions, Costs

Updated: 01 November 2021; Ref: scu.432876

Horth v Thompson: QBD 6 Jul 2010

After a personal injury claim, the judge had apportioned liability and ordered each side to pay the costs of the other. The case had been allocated to the fast track.
Held: The appeal failed. The existence of the Conditional Fee Agreement did not affect the form of order. The award of costs remained the exercise of a judicial discretion, and such a decision should be interfered with only if clearly wrong. The judge had considered the relevant law and had not erred in principle, and nor was the decision one no reasonable tribunal could have reached.

Rafferty J
[2010] EWHC 1674 (QB)
Bailii
Civil Procedure Rules 36.3(6)
England and Wales
Citing:
Cited – Medway Oil and Storage Co Ltd v Continental Contractors Ltd HL 1929
The court set down the principles to be applied when apportioning costs between a claim and counterclaim. Where both the claim and the counter-claim are dismissed with costs, the amount that the Claimant will recover in defeating the counter-claim . .
Cited – Burchell v Bullard and others CA 8-Apr-2005
Each side had succeeded in part on their claims and counterclaims, but the Respondent was andpound;5,000 out of pocket. Each party had been ordered to pay the costs of the other.
Held: The appeal succeeded. The judge had correctly recognised . .
Cited – Parkes v Martin CA 9-Jul-2009
The claimant appealed against the costs order made after a trial following a road traffic accident, awarding blame as to 65% for the Claimant and 35% to the defendant. The Defendant had requested costs in that proportion. After reminding himself of . .
Quoted – Bellenden (formerly Satterthwaite) v Satterthwaite CA 1948
The court considered the role of the appeal court in assessing an order for maintenance payable for a divorced wife. The judge’s decision had been made by an exercise of his discretion.
Held: Asquith LJ said: ‘It is, of course, not enough for . .

Lists of cited by and citing cases may be incomplete.

Costs

Updated: 01 November 2021; Ref: scu.420239

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 indemnity basis, saying the court had certified the patent valid at first instance, and that the appeal was a subsequent proceeding when indemnity costs ought to be ordered under the 1977 Act. Apotex said that the appeal was part of the same proceedings. That was correct. Nevertheless the CPR also applied, and the court used rule 44.3 to take the costs questions on an issue by issue basis.

Lord Justice Ward Lady Justice Arden Lord Justice Jacob
[2004] EWCA Civ 1703, Times 12-Jan-2005, [2005] FSR 24, [2005] 2 Costs LR 293
Bailii
Patents Act 1977 65, Civil Procedure Rules
England and Wales
Citing:
Cited – Smithkline Beecham Plc v Apotex Europe Limited CA 29-Nov-2004
. .
Cited – Re Elgindata Ltd (2) CA 15-Jul-1992
A successful plaintiff who had not been shown to have behaved improperly or unreasonably was not to have his costs reduced or be ordered to pay any part of his opponents costs for having pursued some unsuccessful points. Nourse LJ said that ‘(i) . .
Cited – Stena Rederi Aktiebolag, Stena Line Aktiebolag v Irish Ferries Ltd. CA 13-Feb-2003
. .
Cited – English v Emery Reimbold and Strick Ltd; etc, (Practice Note) CA 30-Apr-2002
Judge’s Reasons Must Show How Reached
In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the . .
Cited – Rediffusion v Singer Link CA 1993
In Patent infringement proceedings it may be proper for a court to assess costs on an issue by issue basis because of the ‘large number of issues and the very extensive costs that can be incurred.’ . .
Cited – 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. . .

Cited by:
Cited – Smithkline Beecham Plc v Apotex Europe Limited CA 29-Nov-2004
. .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, Costs, Civil Procedure Rules

Leading Case

Updated: 01 November 2021; Ref: scu.220352

Barratt, Goff and Tomlinson and The Law Society As Intervenor v Revenue and Customs: FTTTx 20 Jan 2011

FTTTx VAT – disbursements – whether fees paid for medical records and medico-legal reports by solicitors acting for clients in personal injury and medical negligence claims disbursements and thus outside scope of VAT or are not disbursements and liable to VAT – appeal allowed

David Demack (Judge)
[2011] UKFTT 71 (TC), [2011] STI 678, [2011] SFTD 334, [2011] 3 Costs LR 409
Bailii
Council Directive 2006/112/EC 73 79(c)
England and Wales
Citing:
Cited – Rowe and Maw (a firm) v Customs and Excise Commissioners QBD 1975
The Court considered two items of expenditure by a solicitor on his own travel expenses. In one case the expenditure related to travel to a Crown Court in connection with the defence of a client; in the other the expenditure was incurred in . .
Cited – Nell Gwynn House Maintenance Fund v Commissioners of Customs and Excise HL 15-Dec-1998
Trustees who managed a group of apartments argued that they did not themselves provide staff services to the tenants, but rather arranged for the staff to provide services to them.
Held: The contract providing cleaning and other services, by a . .

Lists of cited by and citing cases may be incomplete.

VAT, Legal Professions, Costs

Updated: 01 November 2021; Ref: scu.442788

Joseph Hill and Company, Solicitors, Re Wasted Costs Order Made Against: CACD 21 May 2013

The solicitors appealed against a wasted costs order made by the Crown Court as to their actions in the successful defence. They had not disclosed alibi evidence on advice from counsel on being unable to obtain proofs of evidence, until the day before the trial when the defendant’s father gave a statement. The judge made the order saying that the defence should have complied with court rules requiring disclosure of alibi evidence.
Held: The appeal succeeded.
Openshaw J said: ‘We have no doubt that the practice, if such it be, of advising that the names and addresses of alibi witnesses should not be disclosed unless and until they have provided signed proofs of evidence is misguided and wrong. It is doubtless based on the concern that a defendant might be criticised if a person identified in the notice does not, in fact, give evidence. In certain cases, that might be justified; in other cases, given that the notice is triggered only by the defendant’s belief (rather than certain knowledge), it would be wrong to do so.’ However, ‘it is quite clear from the correspondence we have seen from others, including some very experienced criminal practitioners, that the view taken by counsel was quite widely held’ and ‘ applying the standards as laid down by Sir Thomas Bingham MR . . although the appellants may have fallen into error, we do not think it can be said that they were acting in a way in which no reasonably competent solicitor could have acted in the circumstances. We have no doubt that the appellants’ conduct was not improper and we are not satisfied that it was unreasonable either.’ Nor was it clear in fact that the actions criticised had in fact caused any wast of costs.
Given the guidance now given by this case a similar result may not apply in future.

Leveson LJ, Wilkie, Openshaw JJ
[2013] EWCA Crim 775, [2013] WLR(D) 210
Bailii, WLRD
Prosecution of Offences Act 1985 19A, Practice Direction (Costs in Criminal Proceedings) 2010
England and Wales
Citing:
Cited – Ridehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Legal Professions, Costs

Updated: 01 November 2021; Ref: scu.509988

Lord Chancellor v Eddowes Perry and Osbourne Ltd: QBD 2 Mar 2011

The court was asked as to the proper interpretation and application of the Litigators’ Graduated Fee Scheme for cases in the Crown Court where a litigator has represented multiple defendants tried on the same indictment.

Coulson J
[2011] EWHC 420 (QB)
Bailii
England and Wales

Costs, Criminal Practice

Updated: 01 November 2021; Ref: scu.430254

Farrer v Lacy, Hartland and Co: 1885

The court will seek not to allow the power to order security for costs to be used as an instrument of oppression, by stifling a genuine claim by an indigent company against a more prosperous company, particularly when the failure to meet that claim might in itself have been a material cause of the plaintiff’s impecuniosity.

Bowen LJ
(1885) 28 Ch D 482
Cited by:
Cited – Keary Developments v Tarmac Constructions CA 1995
The court set out the principles to be applied by the court upon an application for security for costs.
1. The court has a complete discretion whether to order security, and accordingly it will act in the light of all the relevant . .

Lists of cited by and citing cases may be incomplete.

Costs, Litigation Practice

Leading Case

Updated: 01 November 2021; Ref: scu.225884

Barnes (As Former Court Appointed Receiver) v The Eastenders Group and Another: SC 8 May 2014

Costs of Wrongly Appointed Receiver

‘The contest in this case is about who should bear the costs and expenses of a receiver appointed under an order which ought not to have been made. The appellant, who is a former partner in a well known firm of accountants, was appointed to act as management receiver of the assets of a group of companies referred to as Eastenders on the application of CPS. The order was made under section 48 of the 2002 Act but was quashed on appeal.’
Held: The Receiver’s appeal against the refusal of the court to order payment by CPS succeeded.
At common law, a receiver was entitled to his costs from the estate under receivership, howver the issue here was as to whether the order was proportionate in this case under A1P1. The taking of property without compensation is, in general, a disproportionate interference with A1. In this case the company was not a defendant, and nor were the assets those of the defendant.
The Receiver having acted under appointent of and by agreement with the CPS, they were responsible.

Lady Hale, Deputy President, Lord Kerr, Lord Wilson, Lord Hughes, Lord Toulson
[2014] UKSC 26, [2014] WLR(D) 194, [2014] 2 WLR 1269, UKSC 2013/0006
Bailii, Bailii Summary, WLRD, SC Summary, SC
Proceeds of Crime Act 2002, European Convention on Human Rights P1 A1
England and Wales
Citing:
See Also – Eastenders Cash and Carry Plc and Another v Revenue and Customs Admn 4-Nov-2010
Applications for judicial review in relation to alcoholic goods detained by the Defendants on grounds of a suspicion that duty may not have been paid in respect of them.
Sales J said: ‘In my view, there is a clear reason why Parliament wished . .
See Also – Eastenders Cash and Carry Plc v Revenue and Customs FTTTx 29-Dec-2010
FTTTx Excise Duty – warehouse – application for registration as an owner of goods under Warehousekeepers and Owners of Goods Regulations 1999 (‘WOWGR’) – whether decision of HMRC could reasonably have been . .
See Also – Eastenders Cash and Carry Plc v South Western Magistrates’ Court Admn 22-Mar-2011
The claimant sought judicial review of decisions by the magistrates first to issue search warrants, and then to refuse to disclose the information on which it had been based.
Held: The documentation now having been disclosed the second part of . .
See Also – Eastenders Cash and Carry Plc and Others v HM Revenue and Customs CA 20-Jan-2012
The Court considered the lawfulness of the exercise of the power claimed by the Commissioners of Her Majesty’s Customs and Excise (HMRC) to detain goods temporarily for the purpose of investigating their status. . .
See also – First Stop Wholesale Ltd, Regina (on The Application of) v Revenue and Customs Admn 27-Mar-2012
The claimant sought judicial review of the defendant’s decisions to seize and detain alcoholic drinks from his business premises.
Held: Goods could not lawfully be detained under section 139(1) for the purpose of ascertaining whether the power . .
See Also – Eastenders Cash and Carry Plc v Revenue and Customs FTTTx 27-Mar-2012
FTTTx Procedure – costs – application for costs out of time – whether discretion to entertain an application should be exercised – Rule 5 (3) (a) Tribunal Rules 2009 – whether direction should be made to apply . .
See Also – Eastenders Cash and Carry Plc and Another v HM Revenue and Customs CA 22-May-2012
The appellants had succeeded in resisting proceedings commenced by the respondents for the seizure of goods. The respondent now argued that costs should not follow the event, asserting a statutory bar. The appellant additionally argued that any such . .
See Also – First Stop Wholesale Ltd, Regina (on The Application of) v Revenue and Customs Admn 16-Jul-2012
The applicant challenged the court’s refusal to pay its costs after a finding that the seizure of goods by the respondent had been unlawful. The defendant argued that section 144 of the 1979 Act protected it against such an order.
Held: . .
See Also – First Stop Wholesale Ltd R (on The Application of) v Revenue and Customs Admn 5-Oct-2012
Claim for judicial review of various seizure notices issued by the defendants. The question was whether a statement in the notices that ‘no evidence of UK duty payment has been provided’ was a sufficient statement of the grounds for seizing the . .
See Also – Crown Prosecution Service v The Eastenders Group and Another CACD 23-Nov-2012
‘application by the CPS for permission to appeal against . . orders made . . in the Central Criminal Court on 8 May 2012. I use the expression ‘in form’ because as will appear there are issues as to the jurisdiction of the court. The case raises . .
Cited – HM Revenue and Customs v First Stop Wholesale Ltd and Another CA 12-Mar-2013
‘Appeals . . against orders . . arising out of the detention . . by HMRC of large quantities of alcohol from the warehouse and other premises of First Stop, the respondent to the first two appeals and the appellant in the third. At the time the . .
Cited – Capewell v Commissioners for HM Customs and Excise and Sinclair CA 2-Dec-2004
The court approved guidelines for the appointment and remuneration of a receiver appointed under the 1988 Act. . .
Cited – Capewell v Revenue and Customs and Another HL 31-Jan-2007
The defendant appealed against an order regarding the remuneration of a receiver appointed to administer a restraint order placed on the assets of the defendant under the 1988 Act on the basis of an allegation that the defendant had been involved in . .
Cited – Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd HL 15-Jun-1942
A contract for the supply by the respondents of special machinery to be manufactured by them was treated as an ordinary contract for the sale of goods. It began valid, but suffered frustration by the outbreak of war.
Held: Lord Wright restated . .
Cited – Sporrong and Lonnroth v Sweden ECHR 23-Sep-1982
Balance of Interests in peaceful enjoyment claim
(Plenary Court) The claimants challenged orders expropriating their properties for redevelopment, and the banning of construction pending redevelopment. The orders remained in place for many years.
Held: Article 1 comprises three distinct . .
Cited – James and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
Cited – Raimondo v Italy ECHR 22-Feb-1994
The applicant was arrested and placed under house arrest on charges relating to his association with the Mafia. As an interim measure some of his property was seized. The proceedings ended in his acquittal. He claimed that the seizure of his . .
Cited – Benham v United Kingdom ECHR 8-Feb-1995
Legal Aid was wrongfully refused where a tax or fine defaulter was liable to imprisonment, and the lack of a proper means enquiry, made imprisonment of poll tax defaulter unlawful. A poll tax defaulter had been wrongly committed to prison by . .
Cited – In Re Andrews CA 25-Feb-1999
The defendant and his son had been charged with offences relating to their joint business, and restraint orders were made. The son was convicted, but the defendant was acquitted and awarded his costs out of central funds. The taxing officer held . .
Cited – Roxborough v Rothmans of Pall Mall Australia Ltd 6-Dec-2001
High Court of Australia – Rothmans were licensed to act as wholesalers of tobacco products under a New South Wales statute. They sold products to retailers for a price including licence fees, which were in reality a form of indirect taxation, . .
Cited – Hughes and Another v Commissioners of Customs and Excise etc CA 20-May-2002
N was charged with VAT fraud. He was the joint owner of a company with his brother T each holding 50% of the shares. T was never charged. A restraint and receivership order was made against N, preventing the company from dealing in any way with its . .
Cited – Crown Prosecution Service v Compton, Comptons of Brighton Limited, Coyne, Compton CA 27-Nov-2002
Appeal against refusal of restraint order.
Held: It is enough that on the documents a good arguable case arises for treating the relevant assets as the realisable property of the defendant.
Lord Justice Simon Brown said: ‘All that I . .
Cited – Frizen v Russia ECHR 24-Mar-2005
Violation of P1-1. A confiscation order made by a Russian criminal court was unlawful and involved a violation of the applicant’s rights under A1P1. The husband was convicted of fraud. She was not herself charged with any criminal offence. After his . .
Cited – Stanford International Bank Ltd, Re CA 25-Feb-2010
Hughes LJ said: ‘it is essential that the duty of candour laid upon any applicant for an order without notice is fully understood and complied with. It is not limited to a duty not to misrepresent. It consists in a duty to consider what any other . .
Cited – Sinclair In her Capacity As the Former Receiver v Glatt Executors of Estate of Glatt and Glatt and Glatt CA 13-Mar-2009
The court considered the recovery of expenses by a receiver appointed to administer assets of money launderer. The receiver sought to exercise a lien over assets held for the prisoner by the prison to recover the costs of the receivership after the . .

Cited by:
See Also – Eastenders Cash and Carry Plc and Others, Regina (on The Application of) v Revenue and Customs SC 11-Jun-2014
Alcoholic drinks had been seized by the respondents pending further enquiries with a view to a possible forfeiture, then held and returned but only under court order. The company had complained that the detention of the goods was unlawful. The . .

Lists of cited by and citing cases may be incomplete.

Customs and Excise, Costs, Human Rights, Criminal Practice

Leading Case

Updated: 01 November 2021; Ref: scu.524663

Myers v Elman: HL 1939

The solicitor had successfully appealed against an order for a contribution to the other party’s legal costs, after his clerk had filed statements in court which he knew to be misleading. The solicitor’s appeal had been successful.
Held: The Court of Appeal’s decision was reversed. The plaintiff was not asking the court to exercise its disciplinary jurisdiction over officers of the court but, rather, its jurisdiction to order a legal practitioner to pay costs by reason of some misconduct, default or negligence in the course of proceedings, a jurisdiction which could be exercised where the solicitor was merely negligent, so that the solicitor could not ‘shelter himself behind a clerk, for whose actions within the scope of his authority he is liable’
A solicitor’s duty advising his client on discovery is to investigate the position carefully and to ensure so far as is possible that full and proper disclosure of all relevant documents is made. He has overall responsibility for the process and should not leave it all to his client. The House considered and set out the court’s powers to disallow an award of costs, or to award them to be paid by the solicitor personally: ‘The court’s jurisdiction to make a wasted costs order against a solicitor is founded on breach of the duty owed by the solicitor to the court to perform his duty as an officer of the court in promoting within his own sphere the cause of justice.’
and ‘The underlying principle is that the Court has a right and a duty to supervise the conduct of its solicitors, and visit with penalties any conduct of a solicitor which is of such a nature as to tend to defeat justice in the very cause in which he is engaged professionally, as was said by Abinger C.B. in Stephens v. Hill. (1) The matter complained of need not be criminal. It need not involve peculation or dishonesty. A mere mistake or error of judgment is not generally sufficient, but a gross neglect or inaccuracy in a matter which it is a solicitor’s duty to ascertain with accuracy may suffice. Thus, a solicitor may be held bound in certain events to satisfy himself that he has a retainer to act, or as to the accuracy of an affidavit which his client swears. It is impossible to enumerate the various contingencies which may call into operation the exercise of this jurisdiction. It need not involve personal obliquity. The term professional misconduct has often been used to describe the ground on which the Court acts. It would perhaps be more accurate to describe it as conduct which involves a failure on the part of a solicitor to fulfil his duty to the Court and to realize his duty to aid in promoting in his own sphere the cause of justice. This summary procedure may often be invoked to save the expense of an action. Thus it may in proper cases take the place of an action for negligence, or an action for breach of warranty of authority brought by the person named as defendant in the writ. The jurisdiction is not merely punitive but compensatory. The order is for payment of costs thrown away or lost because of the conduct complained of. It is frequently, as in this case, exercised in order to compensate the opposite party in the action.’
Viscount Maugham said: ‘My Lords, as I understand the judgment of Greer and Slesser L.JJ., those learned judges were of opinion that the jurisdiction of the Court to order a solicitor to pay the cost of proceedings is a punitive power resting on the personal misconduct of the solicitor and precisely similar to the power of striking a solicitor off the rolls or suspending him from practice . . The jurisdiction to strike off the rolls or to suspend a solicitor seems to me to be of a very different character. Apart from the statutory grounds it is of course true that a solicitor may be struck off the rolls or suspended on the ground of professional misconduct, words which have been properly defined as conduct which would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency: in Re a Solicitor. Ex parte The Law Society (1912) 1 K.B. 302. Mere negligence even of a serious character, will not suffice.’ and ‘These cases did not depend on disgraceful or dishonourable conduct by the solicitor, but on mere negligence of a serious character, the result of which was to occasion useless costs to the other parties . . I think the authorities show that the jurisdiction may be exercised where the solicitor is merely negligent.’
Lord Wright said: ‘A solicitor was long ago held to be an officer of the Court on the Roll of which he was entered and as such to be subject to the discipline of that Court. The Court might strike him off or suspend him . . But alongside the jurisdiction to strike off the Roll or to suspend, there existed in the Court the jurisdiction to punish a solicitor or attorney by ordering him to pay costs, sometimes the costs of his own client, sometimes those of the opposite party, sometimes, it may be, of both. The ground of such an order was that the solicitor had been guilty of professional misconduct (as it is generally called) not, however, of so serious a character as to justify striking him off the Roll or suspending him.’
‘The underlying principle is that the court has a right and a duty to supervise the conduct of its solicitors, and visit with penalties any conduct of a solicitor which is of such a nature as to tend to defeat justice in the very cause in which he is engaged professionally as was said by Abinger C.B. in Stevens v. Hill [(1842) 10 M.and W. 28]. The matter complained of need not be criminal. It need not involve peculation or dishonesty. A mere mistake or error of judgment is not generally sufficient, but a gross neglect or inaccuracy in a matter which it is a solicitor’s duty to ascertain with accuracy may suffice. Thus, a solicitor may be held bound in certain events to satisfy himself that he has a retainer to act, or as to the accuracy of an affidavit which his client swears. It is impossible to enumerate the various contingencies which may call into operation the exercise of this jurisdiction. It need not involve personal obliquity. The term ‘professional misconduct’ has often been used to describe the ground on which the Court acts. It would perhaps be more accurate to describe it as conduct which involves a failure on the part of a solicitor to fulfil his duty to the Court and to realize his duty to aid in promoting in his own sphere the cause of justice. This summary procedure may often be invoked to save the expense of an action Thus, it may, in proper cases, take the place of an action for negligence, or an action for breach of warranty of authority brought by the person named as defendant in the writ. The jurisdiction is not merely punitive, but compensatory. The order is for payment of costs thrown away or lost because of the conduct complained of. It is frequently, as in this case, exercised in order to compensate the opposite party in the action.’
Lord Wright went on to say that the jurisdiction applied for the costs of either party, and was as to behaviour which was professional misconduct falling short of what might lead to a striking off, and: ‘The underlying principle is that the Court has a right and a duty to supervise the conduct of its solicitors and visit with penalties any conduct of a solicitor which is of such a nature as to tend to defeat justice in the very cause in which he is engaged professionally, as was said by Abinger CB in Stephens v Hill (1842) 10 M and W 28. The matter complained of need not be criminal. It need not involve peculation or dishonesty. A mere mistake or error of judgment is not generally sufficient, but a gross neglect or inaccuracy in a matter which it is a solicitor’s duty to ascertain with accuracy may suffice. Thus, a solicitor may be held bound in certain events to satisfy himself that he has a retainer to act, or as to the accuracy of an Affidavit which his client swears. It is impossible to enumerate the various contingencies which may call into operation the exercise of this jurisdiction. It need not involve a personal obliquity. The term professional misconduct has often been used to describe the ground on which the Court acts. It would perhaps be more accurate to describe it as conduct which involves a failure on the part of a solicitor to fulfil his duty to the Court and to realise his duty too. The summary procedure may often be invoked to save the expense of an action. Thus it may in proper cases take the place of an action for negligence or an action for breach of warranty of authority brought by the person named as Defendant in the writ. The jurisdiction is not merely punitive but compensatory. The order is for payment of costs thrown away or lost because of the conduct complained of. It is frequently, as in this case, exercised in order to compensate the opposite party to the action.’
and ‘The summary jurisdiction thus involved a discretion both as to procedure and as to substantive relief ‘
Lord Atkin said: ‘From time immemorial judges have exercised over solicitors . . a disciplinary jurisdiction in cases of misconduct . . If the Court is deceived or the litigant is improperly delayed or put to unnecessary expense, the solicitor on the record will be held responsible and will be admonished or visited with such pecuniary penalty as the Court thinks necessary in the circumstances of the case . . What is the duty of the solicitor? He is at the early stage of the proceedings engaged in putting before the court on the oath of his client information which may afford evidence at the trial. Obviously he must explain to his client what is the meaning of relevance: and equally obviously he must not necessarily be satisfied by the statement of his client that he has no documents or no more than he chooses to disclose. If he has reasonable ground for supposing that there are others, he must investigate the matter; but he need not go beyond taking reasonable steps to ascertain the truth.’
As to the awarding of costs against a solicitor, he considered this to be a disciplinary jurisdiction arising by the solicitor’s failure in its duty to the court itself, and not a form of summary jurisdiction in contract or tort in awarding compensation. As to the standard of misconduct: ‘by misconduct is meant something which would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute; for example wilfully misleading the Court in the conduct of a case.’

Viscount Maugham, Lord Wright and Lord Porter
[1940] AC 282, [1939] 4 All ER 484, (1939) 56 TLR 177, (1939) 162 LT 113, (1939) 109 LJKB 105
England and Wales
Citing:
Appeal from – Myers v Rothfield CA 1938
The solicitor had left the conduct of proceedings largely to his managing clerk. The trial judge held that the solicitor had not been guilty of professional misconduct in allowing the defences to be delivered, but that he had been guilty of such . .

Cited by:
Cited – Ridehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .
Cited – Hedrich and Another v Standard Bank London Ltd and Another CA 30-Jul-2008
Wall LJ said: ‘A cigarette packet carries the warning that smoking can kill you. Solicitors’ standard terms of business should carry a warning that litigation can cost you. For litigation is an inherently risky business: there are no certain . .
Cited – Nelson v Nelson CA 6-Dec-1996
A solicitor appealed against an order requiring him to contribute to the costs of Mareva injunction applied for on behalf of his bankrupt client.
Held: Solicitors were not liable in costs personally for starting proceedings on behalf of a . .
Cited – Ulster Bank Ltd v Fisher and Fisher ChNI 21-Dec-1998
. .
Cited – Medcalf v Mardell, Weatherill and Another HL 27-Jun-2002
The appellants were barristers against whom wasted costs orders had been made. They appealed. They had made allegations of fraud in pleadings, but without being able to provide evidence to support the allegation. This was itself a breach of the Bar . .
Cited – Dempsey v Johnstone CA 30-Jul-2003
The solicitors appealed against a wasted costs order. . .
Cited – Harley v McDonald; Glasgow Harley (A Firm) v McDonald PC 10-Apr-2001
(New Zealand) A solicitor’s duty to the court was not breached merely because he had, on his client’s instructions, pursued a case which was hopeless. It was also inapposite to penalize him for work undertaken before the court had warned him of the . .
Cited – Al-Kandari v J R Brown and Co CA 1988
A solicitor had undertaken to look after certain passports, but failed to do so. The husband had twice previously kidnapped his children whose custody was an issue before the court. Once the husband regained the passports, he again fled with the . .
Cited – Taylor and Taylor v Ribby Hall Leisure Limited and North West Leisure Holdings Limited CA 6-Aug-1997
In supervisory proceedings against lawyers, claims of abuse of process are to be pursued at the substantive hearing and not by way of pre-emptive applications. Delay in bringing an application to enforce a solicitor’s undertaking can be relevant to . .
Cited – Wagstaff v Colls and Another CA 2-Apr-2003
The action had been stayed by an order on agreed terms. The claimant sought a wasted costs order against the defendants’ solicitors on the ground that they had witheld certain facts during the litigation. The defendants argued that they should first . .
Cited – Sprecher Grier Halberstam Llp and Another v Walsh CA 3-Dec-2008
Ward LJ said: ‘a man cannot be deceived if he knows the truth’ . .
Cited – In re P (a Barrister) (Wasted Costs Order) CACD 23-Jul-2001
The procedure for making a wasted costs order was primarily compensatory, for costs wasted, rather than punitive for malpractice. The procedure is summary, and more in line with applications for costs made under the Civil Procedure Rules rule 44.3, . .
Cited – Phillips, Harland (Suing As Administrators of the Estate of Christo Michailidis), Papadimitriou v Symes (A Bankrupt) Robin Symes Limited (In Administrative Receivership) Jean-Louis Domercq ChD 20-Oct-2004
Dr Zamar had given expert evidence in the principal proceedings. It was now said that that evidence had not been given in the proper way, and a remedy was now sought. . .
Cited – Axa Sun Life Services Plc v Cannon and Another QBD 30-Oct-2007
. .
Cited – Mitchells Solicitors v Funkwerk Information Technologies York Ltd EAT 8-Apr-2008
EAT PRACTICE AND PROCEDURE: Costs
After the Claimant’s discrimination claim failed the Respondents sought an order for costs against her or a wasted costs order against her solicitors for pursuing a hopeless . .
Cited – Angel Solicitors v Jenkins O’Dowd and Barth ChD 19-Jan-2009
Actions were brought to enforce undertakings given by solicitors to redeem mortgages on the sale of properties, and as to redemption figures provided by lenders who then refused to release the properties. The solicitors had replied to standard form . .
Cited – Geoffrey Silver and Drake v Baines (trading as Wetherfield Baines and Baines) (a firm) CA 1971
The court’s summary jurisdiction over solicitors is extraordinary, and therefore should only be exercised sparingly (i) if justice requires this procedure to be adopted, as opposed to some other procedure.
There is a recognised jurisdiction to . .
Cited – Coll v Floreat Merchant Banking Ltd and Others QBD 3-Jun-2014
The court was asked whether it was possible to bring contempt proceedings against a solicitor for the breach of an undertaking other than one given to the court. The parties had been employee and employer. On the breakdown of that relationship, the . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Leading Case

Updated: 01 November 2021; Ref: scu.279003

Kris Motor Spares Ltd v Fox Williams Llp: QBD 12 May 2010

The claimant sought to challenge the After the Event Insurance (ATE) bought by its solicitors late in the day in their claim, before then withdrawing the conditional fee agreement. The premium was over andpound;90,000.
Held: The appeal failed. It had been reasonable to take out the ATE policy because of decisions made by the claimants which would increase the risks the solicitors would face. There was no evidence as to the reasonableness of the premium charged, and ‘in a case where the issue is raised as to the size of the premium there is an evidential burden on the paying party to advance at least some material in support of the contention that the premium is unreasonable.’ If necessary that party could bring expert evidence.
There is a well-established principle that the Court will not permit appeals on questions which are ultimately matters of judgment for the Costs Judge.

Simon J
[2010] EWHC 1008 (QB)
Bailii
Solicitors Act 1974 70, Access to Justice Act 1999 29
England and Wales
Citing:
Cited – Callery v Gray, Russell v Pal Pak Corrugated Ltd (No 1) CA 18-Jul-2001
Claimants in modest, straightforward personal injury claims cases should have re-imbursed to them by the defendant, the cost of after the event insurance, if necessary by costs only proceedings. The solicitor’s success fee should also be recovered. . .
Cited – Meretz Investments Nv and Another v ACP Ltd and others ChD 14-Nov-2007
The parties disputed the success of a sale by a mortgagee in possession of various properties. The parties disputed the apportionment of costs.
Held: The appeal failed. Where there is no express agreement concerning the division of costs, a . .
Cited – Callery v Gray (1) and (2) HL 27-Jun-2002
Success fees and ATE premiums were recoverable
Objection was made to a claimed uplift of 20% sought by the plaintiff’s solicitors. The defendant’s insurers said that there had been little at risk for them.
Held: The system of conditional fees insurance had been introduced to remedy defects . .
Cited – Rogers v Merthyr Tydfil County Borough Council CA 31-Jul-2006
The Court considered the validity of after the event legal expenses insurance and conditional fee agreements schemes, and in particular whether an ATE premium was recoverable by a successful claimant. The damages had been agreed in the sum of pounds . .
Cited – Regina v Common Professional Examination Board, Ex Parte Mealing-Mcclead CA 19-Apr-2000
A party was required to pay money into court before pursuing an appeal. She borrowed money for this purpose but on the express condition that it should be used for this purpose only and was not to become part of her general assets. The money was . .
Cited – Rogers v Merthyr Tydfil County Borough Council CA 31-Jul-2006
The Court considered the validity of after the event legal expenses insurance and conditional fee agreements schemes, and in particular whether an ATE premium was recoverable by a successful claimant. The damages had been agreed in the sum of pounds . .
Cited – Hornsby v Clarke Kenneth Leventhal (A Firm) SCCO 16-Jun-2000
. .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 01 November 2021; Ref: scu.414971

Duke of Norfolk’s Settlement Trusts, Re: CA 13 Apr 1981

The court considered the jurisdiction of the court to authorise the payment out of trust property of remuneration to a trustee.

Cumming-Bruce, Brightman, Fox LJJ
[1981] EWCA Civ 5, [1982] Ch 61, [1981] 3 All ER 220
Bailii
England and Wales

Trusts, Costs

Leading Case

Updated: 01 November 2021; Ref: scu.262681

DLA Piper UK Llp v BDO Llp: Admn 13 Dec 2013

The defendant solicitors, DLA Piper, had sought an order for a witness summons against the BDO, which had been accountants to DLA’s client now accused of false accounting. BDO successfully resisted the issuing of the summons, and was awarded its costs. The judge in the Crown Court had found herself unable to aard costs on a statutory basis, but awarded them purporting to use the Court’s inherent jurisdiction.
Held: The appeal succeeded. The 1965 did indeed make no provision to allow payment of costs, and nor could an order be made under the 1985 Act without a finding of negligence. There might be a glaring gap in the statutory provisions, but with the explicit wasted costs provisions the court’s inherent powers could not be extended to fill that gap.
BDO had no standing to appeal by case stated as it was not party to the proceedings, and the costs application could not be conflated with the main action.

Moses LJ, Foskett J
[2013] EWHC 3970 (Admin), [2013] WLR (D) 515
Bailii, WLRD
Criminal Procedure (Attendance of Witnesses) Act 1965, Prosecution of Offences Act 1985
England and Wales

Criminal Practice, Costs

Updated: 01 November 2021; Ref: scu.518993

Totalise Plc v The Motley Fool Limited and Interative Investor Limited (2): CA 19 Dec 2001

The respondent operated a web site which contained a chat room. Defamatory remarks were made by a third party through the chat room, and the claimant sought details of the identity of the poster. The respondent refused to do so without a court order. One was applied for, and the claimant was given the information and given his costs. The respondents appealed that costs order. In a Norwich Pharmacal situation, the normal rule on costs under CPR cannot apply. It is more akin to pre-action discovery.
The costs order was wrong: ‘in a case where the proposed order will result in the identification of website users who expected their identities to be kept hidden, the court must be careful not to make an order which unjustifiably invades the right of an individual to respect for his private life, especially when that individual is in the nature of things not before the court. ‘

Lord Jusice Aldous, Lord Justice Sedley, Lady Justice Arden
Times 10-Jan-2002, Gazette 27-Feb-2002, [2001] EWCA Civ 1897, [2002] 1 WLR 2450, [2002] EMLR 358, [2003] 2 All ER 872, [2002] FSR 50, [2002] CP Rep 22, [2002] EMLR 20, [2002] 1 WLR 1233, [2002] Masons CLR 3
Bailii
Data Protection Act 1998 6 35, Civil Procedure Rules 44.3, Contempt of Court Act 1981 10
England and Wales
Citing:
Cited – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
Appeal from – Totalise Plc v Motley Fool Ltd and Another QBD 15-Mar-2001
A web site operator who declined responsibility for the moderation of a chat room on the site, but did take steps to remove a poster making defamatory remarks, could not rely upon the Act to resist disclosure of the identity of the author. The Act . .
Cited – Tanfern Ltd v Cameron-MacDonald, Cameron-MacDonald CA 12-May-2000
The court gave detailed guidance on the application of the new procedures on civil appeals in private law cases introduced on May 2. Appeals from a County Court District Judge’s final decision in a multi-track case could now go straight to the Court . .

Cited by:
Cited – Sheffield Wednesday Football Club Ltd and others v Hargreaves QBD 18-Oct-2007
The defendant operated a web forum in which posters posted defamatory messages about the claimants. The claimants sought an order disclosing the contact details of the members of the forum. The owner of the forum said he had undertaken not to . .
Cited – Smith v ADVFN Plc QBD 13-Mar-2008
Order re case management application. The claimant said he had been defamed on an internet forum run by the defendants, and sought orders for disclosure of the identities of the posters to the website. The operator said that special software might . .
Cited – Smith v ADVFN Plc and others QBD 25-Jul-2008
The claimant had brought multiple actions in defamation against anonymous posters on an online forum. The claimant sought to lift the stay which had been imposed because of the number of actions. The claimant had not yet paid outstanding costs . .
Cited – Bunt v Tilley and others QBD 10-Mar-2006
bunt_tilleyQBD2006
The claimant sought damages in defamation in respect of statements made on internet bulletin boards. He pursued the operators of the bulletin boards, and the court now considered the liability of the Internet Service Providers whose systems had . .
Cited – Twentieth Century Fox Film Corp and Others v British Telecommunications Plc ChD 28-Jul-2011
The claimant rights holders sought an order to require the defendant broadband internet provider to deny access to its users to websites which were said to facilitate the distribution of infringing copies of their films. An earlier judgment had . .
Cited – Cartier International Ag and Others v British Telecommunications Plc and Another SC 13-Jun-2018
The respondent ISP companies had been injuncted to stop the transmission of websites which infringed the trade mark rights of the claimants. The ISPs now appealed from the element of the order that they pay the claimants’ costs of implementing the . .

Lists of cited by and citing cases may be incomplete.

Costs, Civil Procedure Rules, Media, Information

Leading Case

Updated: 01 November 2021; Ref: scu.167216

Phillips v Willis: CA 22 Mar 2016

Appeal by a claimant against a case management decision in an action where the sum claimed was only andpound;3,486. Despite that circumstance, there is an important issue of principle at stake, which merits an appeal to the Court of Appeal. Approximately 800,000 cases per year are dealt with under the rules which we are being asked to construe.
The issue in this appeal is how the court should deal with low value road traffic accident claims where the personal injury element has been resolved and only a modest dispute about car hire charges remains.

Jackson, Floyd, Macur LJJ
[2016] EWCA Civ 401
Bailii
England and Wales

Litigation Practice, Costs

Updated: 01 November 2021; Ref: scu.562448

Mitchell MP v News Group Newspapers Ltd: CA 27 Nov 2013

(Practice Note) The claimant brought defamation proceedings against the defendant newspaper. His solicitors had failed to file his costs budget as required, and the claimant now appealed against an order under the new Rule 3.9, restricting very substantially the costs which might be made in his favour.
Held: The appeal was refused. It was inherent in the making of the new rules that the consideration of securing justice in an individual case is not the overarching consideration. The claimant’s failure here had indeed adversely affected parties in other cases before the courts.
The court gave guidance on the application of the new rules. Where the breach complained of is minimal, then some proportionate remedy was appropriate. However: ‘If the non-compliance cannot be characterised as trivial, then the burden is on the defaulting party to persuade the court to grant relief. The court will want to consider why the default occurred. If there is a good reason for it, the court will be likely to decide that relief should be granted. For example, if the reason why a document was not filed with the court was that the party or his solicitor suffered from a debilitating illness or was involved in an accident, then, depending on the circumstances, that may constitute a good reason. Later developments in the course of the litigation process are likely to be a good reason if they show that the period for compliance originally imposed was unreasonable, although the period seemed to be reasonable at the time and could not realistically have been the subject of an appeal. But mere overlooking a deadline, whether on account of overwork or otherwise, is unlikely to be a good reason. We understand that solicitors may be under pressure and have too much work. It may be that this is what occurred in the present case. But that will rarely be a good reason. Solicitors cannot take on too much work and expect to be able to persuade a court that this is a good reason for their failure to meet deadlines. They should either delegate the work to others in their firm or, if they are unable to do this, they should not take on the work at all.’
. . And ‘ We acknowledge that it was a robust decision. She was, however, right to focus on the essential elements of the post-Jackson regime. The defaults by the claimant’s solicitors were not minor or trivial and there was no good excuse for them. They resulted in an abortive costs budgeting hearing and an adjournment which had serious consequences for other litigants. Although it seems harsh in the individual case of Mr Mitchell’s claim, if we were to overturn the decision to refuse relief, it is inevitable that the attempt to achieve a change in culture would receive a major setback.
In the result, we hope that our decision will send out a clear message. If it does, we are confident that, in time, legal representatives will become more efficient and will routinely comply with rules, practice directions and orders. If this happens, then we would expect that satellite litigation of this kind, which is so expensive and damaging to the civil justice system, will become a thing of the past.’

Lord Dyson MR, Richards, Elias LJJ
[2013] EWCA Civ 1537, [2013] WLR(D) 466, [2014] 1 WLR 795, [2014] EMLR 13, [2014] 2 All ER 430, [2014] BLR 89, [2013] 6 Costs LR 1008
Bailii, WLRD
Civil Procedure Rules 3.9
England and Wales
Citing:
Cited – Hashtroodi v Hancock CA 27-May-2004
The claimant had issued proceedings in time, but then the limitation period expired before it was served, and in the meantime the limitation period had expired. The defendant appealed against an automatic extension of time for service granted to the . .
Cited – Tibbles v SIG Plc (T/A Asphaltic Roofing Supplies) CA 26-Apr-2012
The court considered applications for relief from sanction under CPR 3.1(7).
Held: An application under CPR 3.1(7) usually requires a change of circumstances.
Considerations of finality, the undesirability of allowing litigants to have . .
Cited – F and C Alternative Investments (Holdings) Ltd and Others v Barthelemy and Another CA 22-Jun-2012
The parties, former partners in a limited liability partnership providing investment funds management, had been involved in protracted and bitter litigation. The appellant now challenged the award of indemnity costs. . .
Cited – Mannion v Ginty CA 28-Nov-2012
The court discussed an appeal against a case management decision.
Held: Lewison LJ said: ‘It has been said more than once in this court, it is vital for the Court of Appeal to uphold robust fair case management decisions made by first instance . .
Cited – Wyche v Careforce Group Plc ComC 25-Jul-2013
The defendant had failed to comply in all respects with an ‘unless’ order.
Held: The court gave relief under CPR 3.9 for two failures which the court described as ‘material in the sense that they were more than trivial’. They were . .
Appeal from – Mitchell v News Group Newspapers Ltd QBD 1-Aug-2013
The defamation claimant sought relief from sanctions imposed after a failure to comply with orders requiring him to discuss budgets and budgetary assumptions.
Held: The claimant had failed to deliver the required costs budget in time, and any . .
Cited – Raayan Al Iraq Co Ltd and Others v Trans Victory Marine Inc and Others ComC 23-Aug-2013
Application for extension of two days to service of particulars of claim. The defendants resisted saying that the court should apply sanctions against the claimant. The claimants applied for relief under rule 3.9.
Held: The new rules were . .

Cited by:
Cited – Rattan v UBS Ag, London Branch ComC 12-Mar-2014
rattan_ubsComC0314
The claimant had sought an order limiting the defendant’s costs after alleged non-compliance with directions, and failing to file a costs budget.
Held: The application was rejected. The Commercial Court will firmly discourage the taking of . .
Cited – Summit Navigation Ltd and Another v Generali Romania Asigurare Reasigurare Sa Ardaf Sa and Another ComC 21-Feb-2014
The commercial court will not encourage time wasting procedural applications. Leggatt J summarised the principles that should be applied on an application for relief from sanctions: ‘i) On an application for relief from a sanction under CPR 3.9, it . .
Cited – Webb Resolutions Ltd v E-Surv Ltd QBD 20-Jan-2014
A party in default seeking an out-of-time extension for making a renewed application for permission to appeal (under CPR r 52.3(5)) would have to satisfy the same tests as were applied to the default in Mitchell. . .
Cited – Associated Electrical Industries Ltd v Alstom UK ComC 24-Feb-2014
The claimant was late in serving its particulars of claim. The defendant now requested the strike out of the claim for that default.
Held: The court applied the principles set out in Mitchell to refuse consent. . .
Cited – Kaneria v Kaneria and Others ChD 15-Apr-2014
The parties were embroiled in a company dispute with allegations of conduct prejudicial to minority shareholders. An application was now made for sanctions for a failure to comply with court directions.
Held: Unless and until a higher Court . .
Cited – M A Lloyd and Sons Ltd (T/A KPM Marine) v PPC International Ltd (T/A Professional Powercraft) QBD 20-Jan-2014
. .
Cited – Hallam Estates Ltd and Another v Baker CA 19-May-2014
‘The paying parties appeal against a decision of the High Court reversing a decision of the costs judge, whereby he declined to set aside his earlier order granting an extension of time for serving the points of dispute. The principal issues in this . .
See Also – Mitchell v News Group Newspapers Ltd QBD 27-Mar-2014
Application for discovery of documents held by a third party, the Police Complaints Commission) in a defamation action. . .
See Also – Mitchell v News Group Newspapers Ltd QBD 11-Jun-2014
. .
See Also – Mitchell v News Group Newspapers Ltd QBD 28-Jul-2014
The claimant MP had a bad tempered altercation with police officers outside Downing Street. He sued the defendant newspaper in defamation saying that they had falsely accused him of calling te officers ‘plebs’. One officer now sued the MP saying . .
See Also – Mitchell v News Group Newspapers Ltd QBD 31-Oct-2014
The claimant alleged defamation by the defendant. In the second action, the policeman claimant alleged defamation by the first claimant. The court heard applications as to the admission of expert evidence, and as to the inclusion or otherwise of . .
See Also – Mitchell v News Group Newspapers Limited QBD 27-Nov-2014
. .
Cited – Thevarajah v Riordan and Others SC 16-Dec-2015
The defendants had failed to comply with an ‘unless’ order requiring disclosure, and had been first debarred from defending the cases as to liability. They applied to a second judge who granted relief from sanctions after new solicitors had complied . .
Cited – BPP University College of Professional Studies v Revenue and Customs FTTTx 1-Jul-2014
FTTTx HMRC directed to provide further and better particulars – unless order breached – whether HMRC should be barred – whether Mitchell applies – HMRC barred. . .
Cited – Revenue and Customs v BPP Holdings Ltd and Others UTTC 3-Oct-2014
PROCEDURE – HMRC barred from further participation – FTT rule 8 – whether FTT applied correct principles – no – whether FTT’s decision outside reasonable exercise of judicial discretion – yes – decision set aside and remade – no barring order . .
Cited – BPP Holdings v Revenue and Customs CA 1-Mar-2016
HMRC had been debarred from further participation in the proceedings. BPP provided training courses, and the issue was as to the chargeability to VAT of books supplied between companies in the group. In the proceedings, HMRC repeatedly failed to . .
Cited – BPP Holdings Ltd and Others v Revenue and Customs SC 26-Jul-2017
The Revenue had challenged a decision by the FTTTx to bar it from defending an appeal as to VAT liability. It had failed first to meet procedural time limits and on the issue of an unless order had failed to comply. The Revenue challenged the . .

Lists of cited by and citing cases may be incomplete.

Costs, Defamation, Litigation Practice

Leading Case

Updated: 31 October 2021; Ref: scu.518472

Campbell v MGN Ltd (No 2): HL 20 Oct 2005

The appellant sought to challenge the level of costs sought by the claimant after she had succeeded in her appeal to the House. Though a relatively small sum had been awarded, the costs and success fee were very substantial. The newspaper claimed that the costs claimed infringed its right to freedom of expression.
Held: The petition failed; the 1999 Act costs recovery regime did not infringe article 10. The defendant’s argument confused proportionality on costs with the Article 10 proportionality, which was concerned with access to justice. It was open to the latter to ensure the second. The defendant argued also that the claimant had not needed to use a conditional fee agreement, being wealthy. However, the rule requiring a lawyer to consider whether any alternatoive method of payment might be available was for the protection of the claimant not the protection of the defendant. The solicitors could not be expected to conduct a means test, and ‘the impracticality of requiring a means test and the small number of individuals who could be said to have sufficient resources to provide them with access to legal services entitled Parliament to lay down a general rule that CFAs are open to everyone. ‘

Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell
[2005] UKHL 61, Times 21-Oct-2005, [2005] 4 All ER 793, [2006] EMLR 1, [2005] 1 WLR 3394
Bailii, House of Lords
European Convention on Human Rights 10, Conditional Fee Agreements Regulations 2000 (SI 2000/692), Courts and Legal Services Act 1990 58
England and Wales
Citing:
Cited – Tolstoy Miloslavsky v United Kingdom ECHR 19-Jul-1995
The applicant had been required to pay andpound;124,900 as security for the respondent’s costs as a condition of his appeal against an award of damages in a defamation case.
Held: It followed from established case law that article 6(1) did not . .
See Also – Campbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .
See Also – Campbell v Mirror Group Newspapers plc CA 14-Oct-2002
The newspaper appealed against a finding that it had infringed the claimant’s privacy by publishing a photograph of her leaving a drug addiction clinic.
Held: The claimant had courted publicity, and denied an involvement in drugs. The defence . .
Cited – Tolstoy Miloslavsky v United Kingdom ECHR 19-Jul-1995
The applicant had been required to pay andpound;124,900 as security for the respondent’s costs as a condition of his appeal against an award of damages in a defamation case.
Held: It followed from established case law that article 6(1) did not . .
Cited – Airey v Ireland ECHR 9-Oct-1979
Family law proceedings such as judicial separation do give rise to civil rights. In complex cases article 6 might require some provision for legal assistance, the precise form being a matter for the member state. The Court reiterated the importance . .
Cited – Steel and Morris v United Kingdom ECHR 15-Feb-2005
The applicants had been sued in defamation by McDonalds. They had no resources, and English law precluded legal aid for such cases. The trial was the longest in English legal history. They complained that the non-availablility of legal aid infringed . .
Cited – Hollins v Russell etc CA 22-May-2003
Six appeals concerned a number of aspects of the new Conditional Fee Agreement.
Held: It should be normal for a CFA, redacted as necessary, to be disclosed for costs proceedings where a success fee is claimed. If a party seeks to rely on the . .
Cited – Designers Guild Ltd v Russell Williams (Textiles) Ltd (T/A Washington DC) (No 2) SCCO 20-Feb-2003
The appellant had been successful at first instance, had lost (unanimously) in the Court of Appeal and its appeal was allowed (unanimously) in the House of Lords.
Held: The general principles as to taxation of costs apply equally in the House . .
Cited – Callery v Gray, Russell v Pal Pak Corrugated Ltd (No 1) CA 18-Jul-2001
Claimants in modest, straightforward personal injury claims cases should have re-imbursed to them by the defendant, the cost of after the event insurance, if necessary by costs only proceedings. The solicitor’s success fee should also be recovered. . .
Cited – Home Office v Lownds (Practice Note) CA 21-Mar-2002
The respondent had been ordered to pay costs of over pounds 16,000 in an action for clinical negligence where the final award was only pounds 4,000. The Secretary of State appealed claiming that the costs were disproportionate.
Held: In such . .
Cited – Mcvicar v The United Kingdom ECHR 7-May-2002
It was not inconsistent with article 6 to expect both claimants and defendants in defamation proceedings to act in person. . .
Cited – James and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
Cited – In re S (A Child) (Identification: Restrictions on Publication) CA 10-Jul-2003
An order was sought to protect from publicity a child whose mother faced trial for the murder of his brother. The child was now in care.
Held: The court must balance the need to protect the child with the need for freedom of the press. The . .
Cited – King v Telegraph Group Ltd CA 18-May-2004
The defendant appealed against interim costs orders made in the claim against it for defamation.
Held: The general power of cost capping measures available to courts were available also in defamation proceedings. The claimant was being . .
Cited – Turcu v News Group Newspapers Ltd QBD 4-May-2005
Chilling effect of defamation costs structures
Eady J said: ‘The claimant in these proceedings is seeking damages against News Group Newspapers Ltd, as publishers of The News of the World, in respect of articles appearing in the editions of that newspaper dated 3 November 2002 . . He issued his . .

Cited by:
Cited – Al-Koronky and Another v Time-Life Entertainment Group Ltd and Another CA 28-Jul-2006
The claimants sought damages after publication of articles alleging severe mistreatment of a servant. One defendant had settled and apologised, but the defendant publisher and author had persisted with the allegation. The claimants who lived in . .
Appeal from – MGN Limited v United Kingdom ECHR 18-Jan-2011
The applicant publisher said that the finding against it of breach of confidence and the system of success fees infringed it Article 10 rights to freedom of speech. It had published an article about a model’s attendance at Narcotics anonymous . .
Cited – MGN Limited v United Kingdom ECHR 24-Oct-2008
The Mirror had published a picture of Naomi Campbell leaving a rehabilitation clinic. They appealed a decision in which having been found to have infringed her privacy by a covertly taken photograph, they had then been ordered to pay very . .
Cited – O’Dwyer v ITV Plc QBD 30-Nov-2012
The defendant sought to have struck out the claim for defamation based on the defendant’s ‘Homes from Hell’ TV programme.
Held: The pleaded meanings failed, and an application to amend the particulars was refused. The action was struck out.
Cited – Coventry and Others v Lawrence and Another (No 2) SC 23-Jul-2014
Consequential judgment. Mr Coventry had been found liable in the principle judgment in nuisance to the appellant neighbours. The Court was now asked as to several matters arising. First, to what extent were the defendants’ landlords liable to the . .
Cited – Times Newspapers Ltd and Others v Flood and Others SC 11-Apr-2017
Three newspaper publishers, having lost defamation cases, challenged the levels of costs awarded against them, saying that the levels infringed their own rights of free speech.
Held: Each of the three appeals was dismissed. . .
Cited – Coventry and Others v Lawrence and Another SC 22-Jul-2015
The appellants challenged the compatibility with the European Convention on Human Rights of the system for recovery of costs in civil litigation in England and Wales following the passing of the Access to Justice Act 1999. The parties had been . .

Lists of cited by and citing cases may be incomplete.

Costs, Human Rights, Defamation

Leading Case

Updated: 31 October 2021; Ref: scu.231236

Callery v Gray (1) and (2): HL 27 Jun 2002

Success fees and ATE premiums were recoverable

Objection was made to a claimed uplift of 20% sought by the plaintiff’s solicitors. The defendant’s insurers said that there had been little at risk for them.
Held: The system of conditional fees insurance had been introduced to remedy defects in the Legal Aid system. The new system was open to abuse because of the danger of parties agreeing and setting fees they would not be called upon to pay, and it needed the control of the courts. The Court of Appeal will hear many more cases than the House, and that Court’s judgements and experience in this field should be respected. The House of Lords was not the best place to decide these issues. This was a very low risk case. Should after the event insurance be taken out before it was known whether the case was to be resisted?
Subject to reasonableness, success fees and ATE premiums were recoverable. The idea behind the Act was to transfer the burden of unsuccessful cases to the insurers, and thus in turn to the general public. Questions of what would provide a reasonable rate of return for solicitors are not ones for costs judges. Appeal dismissed.

Lord Bingham of Cornhill Lord Nicholls of Birkenhead Lord Hoffmann Lord Hope of Craighead Lord Scott of Foscote
Times 02-Jul-2002, [2002] UKHL 28, [2002] 1 WLR 2000, [2002] PIQR P32, [2002] 3 All ER 417, [2003] RTR 4, [2003] Lloyds Rep IR 203, [2002] 2 Costs LR 205
House of Lords, Bailii
Access to Justice Act 1999
England and Wales
Citing:
Appeal from – Callery v Gray (No 2) CA 31-Jul-2001
A plaintiff could recover the costs of insuring himself against the risk of having to pay the other sides costs, and finding his own costs irrecoverable (after the event or ATE insurance). The earlier case had decided that such premiums may be . .
Appeal from – Callery v Gray, Russell v Pal Pak Corrugated Ltd (No 1) CA 18-Jul-2001
Claimants in modest, straightforward personal injury claims cases should have re-imbursed to them by the defendant, the cost of after the event insurance, if necessary by costs only proceedings. The solicitor’s success fee should also be recovered. . .
Cited – Birkett v James HL 1977
Exercise of Power to Strike Out
The court has an inherent power to strike out an action for want of prosecution, and the House set down the conditions for its exercise. The power is discretionary and exercisable only where (a) there has been inordinate and inexcusable delay and . .
Cited – Thai Trading (a Firm) v Taylor and Taylor (of Taylors Solicitors, Caversham) CA 27-Feb-1998
A solicitor had agreed with his wife to act for her in litigation on the understanding that he would only recover his profit costs if she succeeded.
Held: This agreement did not offend public policy. This type of agreement was distinguished . .
Cited – Girvan v Inverness Farmers Dairy and Another HL 13-Nov-1997
(Scotland) A second re-trial in order to obtain a jury assessment of damages more in line with that assessed by judges would be wrong. Lord Clyde: ‘In a system in which damages may be assessed in different cases either by a jury or by a judge it is . .
Cited – Gomba Holdings (UK) Ltd v Minories Finance Ltd (No 2) CA 1993
A clause entitling a mortgagee to recover legal costs from the mortgagor did not extend to costs that were unreasonably incurred or which were unreasonable in amount. Whether costs were unreasonably incurred or were unreasonable in amount was to be . .

Cited by:
Cited – Hollins v Russell etc CA 22-May-2003
Six appeals concerned a number of aspects of the new Conditional Fee Agreement.
Held: It should be normal for a CFA, redacted as necessary, to be disclosed for costs proceedings where a success fee is claimed. If a party seeks to rely on the . .
Cited – Bowman v Fels (Bar Council and Others intervening) CA 8-Mar-2005
The parties had lived together in a house owned in the defendant’s name and in which she claimed an interest. The claimant’s solicitors notified NCIS that they thought the defendant had acted illegally in setting off against his VAT liability the . .
Cited – Alfa Begum v Supin Klarit CA 15-Feb-2005
The court ordered the reduction of the success fees agreed between the claimant and her solicitors from 100% to 15%. The case was nearly a stone cold certainty. . .
Cited – Kris Motor Spares Ltd v Fox Williams Llp QBD 12-May-2010
The claimant sought to challenge the After the Event Insurance (ATE) bought by its solicitors late in the day in their claim, before then withdrawing the conditional fee agreement. The premium was over andpound;90,000.
Held: The appeal failed. . .
Cited – Kololo v Commissioner of Police for The Metropolis QBD 9-Mar-2015
The claimant sought disclosure of information under the 1998 Act. The defendant said that the application was an abuse of process and an attempt to circumvent the 2003 Act. The claimant had been convicted of involvement in kidnapping and murder in . .
Cited – McGraddie v McGraddie and Another (Scotland : Costs) SC 28-Jan-2015
The parties, father and son had fallen out. The father said that a property purhased by the son with money provided by the father, was held in trust for the father. The Court had rejected the argument of the son that this had been a gift. The . .
Cited – Times Newspapers Ltd and Others v Flood and Others SC 11-Apr-2017
Three newspaper publishers, having lost defamation cases, challenged the levels of costs awarded against them, saying that the levels infringed their own rights of free speech.
Held: Each of the three appeals was dismissed. . .
Cited – Coventry and Others v Lawrence and Another SC 22-Jul-2015
The appellants challenged the compatibility with the European Convention on Human Rights of the system for recovery of costs in civil litigation in England and Wales following the passing of the Access to Justice Act 1999. The parties had been . .

Lists of cited by and citing cases may be incomplete.

Costs, Personal Injury, Legal Aid

Leading Case

Updated: 31 October 2021; Ref: scu.174121

Morris and Another v London Borough of Southwark: QBD 5 Feb 2010

The residential tenant claimant sought damages from her council for failure to repair her flat. The counciil now objected to being asked to pay her costs, saying that the agreement with her solicitors was champertous, being a Conditional Fee Agreement, in that it indemnified her agsinst costs which might be awarded against her. The deputy master found it champertous on the basis that it was unlawful for a lawyer to agree to conduct litigation for a client on terms which gave him a financial interest in the outcome of the proceedings, save as permitted by legislation. Since no legislation permitted a solicitor to underwrite a client’s liability to pay the costs of the defendant in the proceedings the indemnity in the CFA was void on the grounds of champerty.
Held: The claimant’s appeal succeeded. Times had moved on, and there was now no public policy against such an agreement: ‘this particular scheme was in respect of cases with a low risk, low quantum, low volume, low success fee, and an enhancement of access to justice. There were many advantages, and the disadvantage, the one disadvantage namely the potential conflict of having this modest financial stake in the litigation, was as it seems to me, so small as to be clearly outweighed by the advantages and potential value of this scheme.’

MacDuff J
[2010] EWHC B1 (QB), [2010] 4 Costs LR 526
Bailii
Courts and Legal Services Act 1990 58
England and Wales
Citing:
Cited – Morris and Another v London Borough of Southwark QBD 5-Feb-2010
The residential tenant claimant sought damages from her council for failure to repair her flat. The counciil now objected to being asked to pay her costs, saying that the agreement with her solicitors was champertous, being a Conditional Fee . .
Cited – Wallersteiner v Moir (No 2) CA 1975
The court was asked whether Moir would be entitled to legal aid to bring a derivative action on behalf of a company against its majority shareholder.
Held: A minority shareholder bringing a derivative action on behalf of a company could obtain . .
Cited – Dix v Townend and Another SCCO 30-Jun-2008
The paying party complained that the agreement as to costs of the payee included an indemnity to be given against (potentially) a very large sum, and was champertous.
Held: Deputy Master Victoria Williams said: ‘It is not said in this case . .
Cited – Trendtex Trading Corporation v Central Bank of Nigeria CA 1977
The court considered the developing international jurisdiction over commercial activities of state bodies which might enjoy state immunity, and sought to ascertain whether or not the Central Bank of Nigeria was entitled to immunity from suit.
Cited by:
Appeal from – Sibthorpe and Morris v London Borough of Southwark CA 25-Jan-2011
The court was asked as to the extent to which the ancient rule against champerty prevents a solicitor agreeing to indemnify his claimant client against any liability for costs which she may incur against the defendant in the litigation in which the . .
Cited – Morris and Another v London Borough of Southwark QBD 5-Feb-2010
The residential tenant claimant sought damages from her council for failure to repair her flat. The counciil now objected to being asked to pay her costs, saying that the agreement with her solicitors was champertous, being a Conditional Fee . .

Lists of cited by and citing cases may be incomplete.

Costs, Legal Professions

Updated: 31 October 2021; Ref: scu.402606

Coventry and Others v Lawrence and Another (No 2): SC 23 Jul 2014

Consequential judgment. Mr Coventry had been found liable in the principle judgment in nuisance to the appellant neighbours. The Court was now asked as to several matters arising. First, to what extent were the defendants’ landlords liable to the claimants, and second as to the suspension of the injunctions whilst the property to be protected was not occupied.
Held: The injunction should be suspended. The landlords should be discharged from liability, but wth no order for costs in their favour. Further orders as to the costs scheme required the involvement of the Attorney-General etc and a final hearing was adjourned.

Lord Neuberger, President, Lord Mance, Lord Clarke, Lord Sumption, Lord Carnwath
[2014] UKSC 46, [2014] WLR(D) 332, UKSC 2012/0076, [2014] PTSR 1014, [2014] 4 All ER 517, [2015] 1 AC 106, [2014] 3 WLR 555, [2014] HLR 42, [2014] 5 Costs LO 759, [2014] 2 P andCR 19
Bailii, SC Summary, SC, WLRD, SC Summary Video
England and Wales
Citing:
Appeal from – Coventry (T/A RDC Promotions and Another v Lawrence and Others CA 27-Feb-2012
The appellants, owners of a motor sport racing circuit, appealed against a finding that their activities constituted a nuisance, given that they had planning permissions for the use.
Held: The appeal succeeded. The judge had erred in holding . .
Principal judgment – Coventry and Others v Lawrence and Another SC 26-Feb-2014
C operated a motor racing circuit as tenant. The neighbour L objected that the noise emitted by the operations were a nuisance. C replied that the fact of his having planning consent meant that it was not a nuisance.
Held: The neighbour’s . .
Cited – Smith v Scott ChD 1973
It is not open to the court to reshape the law relating to the rights and liabilities of landowners by applying the principle of Donoghue v Stevenson [1932] AC 562 and thus saying that a landowner owed a duty of care to his neighbour when selecting . .
Cited – Southwark London Borough Council v Mills/Tanner; Baxter v Camden London Borough Council HL 21-Oct-1999
Tenants of council flats with ineffective sound insulation argued that the landlord council was in breach of the covenant for quiet enjoyment in their tenancy agreements.
Held: A landlord’s duty to allow quiet enjoyment does not extend to a . .
Cited – Smith v Scott ChD 1973
It is not open to the court to reshape the law relating to the rights and liabilities of landowners by applying the principle of Donoghue v Stevenson [1932] AC 562 and thus saying that a landowner owed a duty of care to his neighbour when selecting . .
Cited – Malzy v Eicholz CA 1916
A tenant claimed against his landlord seeking to make him responsible for the nuisance of a co-tenant.
Held: The claim failed.
Lord Cozens-Hardy MR said: ‘A lessor is not liable in damages to his lessee under a covenant for quiet . .
Cited – Sampson v Hodson-Pressinger CA 1981
The defendant owned a Victorian house which had been converted vertically into apartments. He let them to tenants under agreements containing the usual covenant of quiet enjoyment. One of the upper storey apartments had made use of the flat roof of . .
Cited – Banfai v Formula Fun Centre Inc 13-Dec-1984
Canlii Ontario – Superior Court of Justice – The defendants operated an automobile-racing amusement ride on land adjacent to the plaintiffs’ motels. The plaintiffs and their customers complained of the noise . .
Cited – Tetley v Chitty 1986
A local council had granted planning permission to a go-kart club to develop a go-kart track on land owned by the authority, and had granted the club a seven year lease to use it for that express purpose.
Held: The council were held liable in . .
Cited – Chartered Trust Plc v Davies CA 31-Jul-1997
. .
Cited – Simmons v Castle CA 10-Oct-2012
The court amended its earlier judgment as to the overall increase in the level of damages to be awarded in personal injury cases.
The system enacted in the 1999 Act remains in force in relation to litigation brought pursuant to conditional fee . .
Cited – Campbell v MGN Ltd (No 2) HL 20-Oct-2005
The appellant sought to challenge the level of costs sought by the claimant after she had succeeded in her appeal to the House. Though a relatively small sum had been awarded, the costs and success fee were very substantial. The newspaper claimed . .

Cited by:
Adjourned from – Coventry and Others v Lawrence and Another SC 22-Jul-2015
The appellants challenged the compatibility with the European Convention on Human Rights of the system for recovery of costs in civil litigation in England and Wales following the passing of the Access to Justice Act 1999. The parties had been . .

Lists of cited by and citing cases may be incomplete.

Nuisance, Costs, Litigation Practice

Updated: 31 October 2021; Ref: scu.535436

Re Buckton, Buckton v Buckton: ChD 1907

An application was made for the payment of the costs of the action from the deceased’s estate.
Held: Kekewich J identified three situations where an issue might arise about the payment of legal costs out of a fund. First, a trustee may seek guidance from the Court in order to ascertain the interests of the beneficiaries: and see Rules of the Supreme Court 1971, O 66 r 9. Second, beneficiaries may apply to the court by reason of some difficulty of construction or administration that would have justified an application by the trustee, but where it was not convenient for the trustee to apply. In both of those situations, the costs of all parties can be characterised as necessarily incurred for the benefit of the estate. Provided the application was not, in substance, unreasonable, the court might direct costs to be taxed as between solicitor and client and paid out of the estate. Mr Justice Kekewich recorded that: ‘In a large proportion of the summonses adjourned into court for argument the applicants are trustees of a will or settlement who ask the court to construe the instrument of trust for their guidance and in order to ascertain the interests of the beneficiaries or else ask to have some question determined which has arisen in the administration of the trusts. ‘ In such cases the costs of all parties are necessarily incurred for the benefit of the estate and the court directed them to be taxed as between solicitor and client and paid out of the estate.

Kekewich J
[1907] 2 Ch 406
England and Wales
Cited by:
Cited – Jump and Another v Lister and Another ChD 12-Aug-2016
Omnibus Survivorship Clauses
Wills for two people hade been drafted with survivorship clauses which provided for others according to the order in which they died, but in the event, having died together it had been impossible to say which died first. The parties disputed the . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Costs

Leading Case

Updated: 31 October 2021; Ref: scu.570852

Senior-Milne v Secretary of State for Justice: Admn 30 Oct 2012

The applicant wished to appeal against the civil restraint order made against him. He objected to the requirement made to pay a court fee of andpound;80 on making such an application.
Held: The objection failed. The fee was a proportionate means of ensuring a legitimate objective.

Coulson J
[2012] EWHC 3062 (Admin)
Bailii
European Convention on Human Rights 6
England and Wales

Human Rights, Costs

Updated: 31 October 2021; Ref: scu.465525

Yagomba v AXA UK Plc and 16 Others: EAT 9 Feb 2016

EAT Practice and Procedure: Withdrawal – PRACTICE AND PROCEDURE – Costs
A late withdrawal of an appeal that became academic some time before the hearing, led to costs applications by both sides.
The Appellant’s costs application failed. The Appellant’s conduct in pursuing the appeal after it had become academic was unreasonable. He was ordered to pay a proportion of the costs claimed by the Respondent.

Simler DBE P J
[2016] UKEAT 0281 – 15 – 0902
Bailii
England and Wales

Employment, Costs

Updated: 31 October 2021; Ref: scu.562543

McGraddie v McGraddie and Another (Scotland : Costs): SC 28 Jan 2015

The parties, father and son had fallen out. The father said that a property purhased by the son with money provided by the father, was held in trust for the father. The Court had rejected the argument of the son that this had been a gift. The parties now disputed the costs. The defender son having been assisted under legal aid, the father sought an order that the costs should be paid by the Scottish Legal Aid Board. The Board objected that the pursuer had taken out after the event legal costs insurance.
Held: While it does not ineluctably follow that an ATE premium should not be recoverable as part of the costs, it would be somewhat surprising if wholly different considerations applied to the recoverability of ATE and BTE premiums. The ATE premium was a sum incurred by the pursuer to enable or assist him to conduct the cause, to protect him against any potential liability for expenses as a result of conducting the cause, but it was not, as a matter of ordinary language, a sum incurred ‘for conducting the cause’.

Lord Neuberger, President, Lady Hale, Deputy President, Lord Reed
[2015] UKSC 1, 2015 SC (UKSC) 45, 2015 GWD 4-83, 2015 SLT 69, [2015] WLR(D) 36, [2015] 3 All ER 61, [2015] 2 Costs LO 235, [2015] 1 WLR 560
Bailii, Bailii Summary, WLRD
Scotland
Citing:
See Also – McGraddie v McGraddie and Another SCS 13-Mar-2012
The defender appealed against rejection of his assertion that monies paid to him by his father was by way of gift.
Held: His appeal succeeded. The Lord Ordinary’s conclusions were ‘plainly wrong’ when he stated that he did not find any of the . .
Cited – Callery v Gray (No 2) CA 31-Jul-2001
A plaintiff could recover the costs of insuring himself against the risk of having to pay the other sides costs, and finding his own costs irrecoverable (after the event or ATE insurance). The earlier case had decided that such premiums may be . .
Cited – Callery v Gray (1) and (2) HL 27-Jun-2002
Success fees and ATE premiums were recoverable
Objection was made to a claimed uplift of 20% sought by the plaintiff’s solicitors. The defendant’s insurers said that there had been little at risk for them.
Held: The system of conditional fees insurance had been introduced to remedy defects . .

Lists of cited by and citing cases may be incomplete.

Costs, Legal Aid

Updated: 31 October 2021; Ref: scu.541953

Seaga v Harper (No 2): PC 29 Jun 2009

No conditional fees without country approval

(Jamaica) Jamaican domestic law did not allow conditional fees or for the recovery of an after the event insurance premium for costs. When the case was appealed to the Board, his English solicitors represented him under a conditional fee agreement with a success fee and under such insurance. The defendants refused liability for either.
Held: The fees were rejected. The Board was not a court of England but of the Commonwealth. It was governed not by Parliament but by Her Majesty in Council. Such fees had been allowed in England only by virtue of an Act of Parliament, which itself limited its effect. It is ‘unthinkable that a CFA/ATE regime should be introduced into the taxation of costs incurred in appeals before it without any prior attempt to ascertain ‘the wishes of the [parts] of the [Commonwealth] primarily affected.’ ‘

Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Mance, Lord Neuberger of Abbotsbury and Sir Henry Brooke
[2009] UKPC 26, Times 10-Jul-2009, [2009] 4 Costs LR 607, [2010] 1 WLR 312
Bailii
Judicial Committee (General Appellate Jurisdiction) Rules Order 1982 (SI 1982/1876) 75, Judicial Committee (General Appellate Jurisdiction) Rules (Amendment) Order 2005 (SI 2005/1139) 3, Judicial Committee Act 1833 15
England and Wales
Citing:
Cited – British Coal Corporation v The King PC 1935
The Board was asked as to the competency of a petition for special leave to appeal to the King in Council from a judgment of a court in Quebec in a criminal matter. The petitioners argued that notwithstanding the provisions of a Canadian statute . .
Cited – Alexander E Hall and Co v Mackenna PC 1923
Viscount Haldane discussed the status of the Privy Council: ‘The Judicial Committee of the Privy Council is not an English body in any exclusive sense. It is no more an English body than it is an Indian body, or a Canadian body, or a South African . .
See Also – Seaga v Harper PC 30-Jan-2008
Public meeting gave no qualified privilege
(Jamaica) The appellant politician pleaded that his words about a senior policemen when spoken at a public meeting were protected from an action in slander by qualified privilege.
Held: The appeal failed. . .

Lists of cited by and citing cases may be incomplete.

Costs, Constitutional

Updated: 31 October 2021; Ref: scu.349076

Hemming (T/A Simply Pleasure Ltd) and Others, Regina (on The Application of) v The Lord Mayor and Citizens of Westminster: CA 24 May 2013

The claimant had submitted an application for a licence to operate a sex shop. On its failure it sought repayment of that part of the fee which related to the costs of supervising the system, rather than the costs of dealing with the application. It also said that the council had failed, as it was required to do, to set the fee each year. The Council now appealed against a finding against it.
Held: The LA’s appeal succeeded, except as to the basis on which restitution was to be made. The council was not entitled to levy the (considerably larger) parts of the actual charges which related to the costs of enforcing the scheme against non-licence holders.

Lord Dyson MR, Black, Beatson LJJ
[2013] EWCA Civ 591, [2013] WLR(D) 203, [2013] PTSR 1377, [2013] PTSR 1377
Bailii, WLRD
Provision of Services Regulations 2009, Directive 2006/123/EC on Services in the Internal Market
England and Wales
Citing:
Cited – Regina v Birmingham City Council ex parte Quietlynn Ltd 1985
The court held that on the failure of an application for a licence for a sex establishment, that part of the licence fee paid which related to the management of the supervisory regime rather than the cost of administering the application alone . .
Cited – Regina v Westminster City Council, ex parte Hutton 1985
H challenged the fee set for applying for a livence to operate a sex shop. The administrative costs on which the fee was based in the year in question included a sum representing the supposed shortfall in fee income against administrative costs in . .
Cited – Regina v Manchester City Council ex parte King QBD 1991
When setting licence fees for local traders, the authority had set them at a commercial rate. ‘the judgment of what was a reasonable fee ‘for the purpose of recouping in whole or in part the cots of operating the street trading scheme’ was for . .
Cited – Waikato Regional Airport Ltd and others v Attorney General PC 30-Jun-2003
PC New Zealand . .
Appeal from – Hemming (T/A Simply Pleasure Ltd) and Others v Westminster City Council Admn 16-May-2012
The applicant had sought a license for a sex establishment. He paid the (substantial) fee, but complained that the Council had not as required, resolved to set the fee, and that in any event, the sum did not reflect the cost of administering the . .

Cited by:
Appeal from – Hemming (T/A Simply Pleasure Ltd) and Others, Regina (on The Application of) v Westminster City Council SC 29-Apr-2015
The parties disputed the returnability of the fees paid on application for a sex establishment licence where the licence was refused. The fee was in part one for the application, and a second and greater element related to the costs of monitoring . .
At CA – Hemming (T/A Simply Pleasure) and Others, Regina (on The Application of) v Westminster City Council SC 19-Jul-2017
The claimant challenged fees which were charged to the respondents on applying to Westminster City Council for sex shop licences for the three years ended 31 January 2011, 2012 and 2013 and which included the council’s costs of enforcing the . .
At CA – Hemming and Others v Westminster City Council and Others ECJ 16-Nov-2016
Charges for processing application for licence
ECJ Judgment – Reference for a preliminary ruling – Freedom to provide services – Directive 2006/123/EC – Article 13(2) – Authorisation procedures – Concept of charges which may be incurred . .

Lists of cited by and citing cases may be incomplete.

Licensing, Costs

Updated: 31 October 2021; Ref: scu.510074

Black Horse Ltd v Dickinson: Misc 16 Dec 2011

Luton County Court

[2011] EW Misc 22 (CC)
Bailii

Costs

Updated: 31 October 2021; Ref: scu.510068

Plevin v Paragon Personal Finance Ltd and Another: Misc 4 Oct 2012

Manchester County Court – The claimant sought repayment of insurance premiums paid as payment protection insurance when aking out a loan with the defendants as advised by the second defendant. The second defendant was in liquidation by the time her claim was issued. In pursuing a claim for at the most andpound;5,000, her lawyers had accumulated costs to date of andpound;320,000.

Recorder Yip QC
[2012] EW Misc 24 (CC)
Bailii
Consumer Credit Act 1974 140A 140B 140C 140D
Citing:
Binding – Harrison and Another v Black Horse Ltd CA 12-Oct-2011
The appellant sought under section 104A to recover a Payment Protection Insurance premium paid in support of a loan. The borrower dealt directly with the lender, who acted as an intermediary with the insurer. The commission taken by the lender was . .

Cited by:
Appeal from – Plevin v Paragon Personal Finance Ltd and Another CA 16-Dec-2013
The claimant sought repayment of a personal protection insurance premium paid to her broker. The broker was now in insolvent liquidation, and she sought to recover the premium from the next intermediary.
Held: Any limitation of section . .
At County Court – Plevin v Paragon Personal Finance Ltd SC 12-Nov-2014
PPI Sale – No Recovery from Remote Parties
The claimant sought repayment of payment protection insurance premiums paid by her under a policy with Norwich Union. The immediate broker arranging the loan was now insolvent, and she sought repayment from the second and other level intermediaties. . .

Lists of cited by and citing cases may be incomplete.

Insurance, Costs, Consumer

Updated: 31 October 2021; Ref: scu.510059

Ali v Ali and Others: QBD 23 May 2013

Swift DBE J
[2013] EWHC 1233 (QB)
Bailii

Personal Injury, Costs

Updated: 31 October 2021; Ref: scu.510034

Good Law Project Ltd v Minister for The Cabinet Office: TCC 16 Apr 2021

Claimant’s opposed application for a cost-capping order in the context of a challenge by way of judicial review.

[2012] EWHC 1083 (TCC)
Bailii
England and Wales

Updated: 31 October 2021; Ref: scu.663157

Thames Chambers Solicitors v Miah: QBD 16 May 2013

The solicitors appealed against a wasted costs order. They had accepted instructions to act for a bankrupt in pursuing a debt before his discharge and without the debt having been assigned to him by the trustee in bankruptcy.
Held: The order had been made properly: ‘there was a strong prima facie case as from 16 March 2012 that the Solicitors had acted improperly, unreasonably and negligently. ‘ The appeal failed.
Tugendhat J
[2013] EWHC 1245 (QB)
Bailii
Citing:
Cited – Nelson v Nelson CA 6-Dec-1996
A solicitor appealed against an order requiring him to contribute to the costs of Mareva injunction applied for on behalf of his bankrupt client.
Held: Solicitors were not liable in costs personally for starting proceedings on behalf of a . .
Cited – Heath v Tang, Stevens v Peacock CA 11-Aug-1993
The bankrupt applicants each applied to the Court of Appeal for leave to appeal against the judgment for a liquidated sum on which the bankruptcy petition had been based. In the first case, the trustee in bankruptcy indicated his unwillingness to . .
Cited – Regent Leisuretime Ltd and others v Skerrett and Another CA 4-Jul-2006
The court set aside a first stage wasted costs order made by the judge below against the solicitors Reynolds Porter Chamberlain. The judge had been given no indication of the costs claimed and did not have material on which he could form a view as . .
Cited – Pickthall and Another v Hill Dickinson Llp CA 11-Jun-2009
The court was asked as to the extent to which it is an abuse of the process for a claimant to commence proceedings without having the relevant cause of action vested in him, and whether it would be right to allow him to amend his pleadings to plead . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 October 2021; Ref: scu.509280

FM Capital Partners Ltd v Marino and Others: ComC 1 Nov 2018

consequentials hearing
Cockerill J
[2018] EWHC 2905 (Comm)
Bailii
England and Wales
Citing:
See Also – Marino v FM Capital Partners Ltd CA 2016
The test for proprietary injunctions the courts impose a stricter test on defendants wishing to use assets falling within the scope of the injunction to pay legal fees. . .
See Also – FM Capital Partners Ltd v Marino and Others ComC 11-Jul-2018
Claims for conspiracy to injure . .
See Also – FM Capital Partners Ltd v Marino and Others ComC 9-Oct-2018
Proceedings to enforce court judgment . .
See Also – FM Capital Partners Ltd v Marino and Others ComC 31-Oct-2018
. .

Cited by:
Cited – FM Capital Partners Ltd v Marino and Others ComC 28-Mar-2019
Post judgment assessment of damages. . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 October 2021; Ref: scu.631323

XX and Others v YY and Others: ChD 2 Jul 2021

The first defendant applies for an order that the claimants are not entitled to pursue legal action against his lawyers in respect of funds over which the claimants claim a proprietary interest and paid to the first defendant’s lawyers as legal fees in defence of the claim.
Held: Where a claimant brings a proprietary claim against a defendant and the defendant uses the claimed assets to pay a solicitor to defend the claim, the solicitor will be a purchaser for value. (When referring below to solicitors I should also be taken to include counsel also instructed in the defence of the claims.) It is possible that the claimant will nonetheless seek to maintain a claim against the solicitors in respect of the fees as a knowing recipient of the claimed assets.
Held: The order was refused. A similar application for an increase in allowed living expenses was also refused.
‘When deciding whether to allow the payment of legal expenses the court has to balance the risks of irremediable injustice in conditions of uncertainty about the outcome of the proprietary claim. The court does not know whether the claimant or defendant will end up owning the assets. It seeks to weigh the risk of the claimant’s property being (wrongly) spent by the defendant against that of the defendant being (wrongly) enjoined from using its property to defend itself. The court does the best it can to balance the risks of irremediable harm. But the order now sought is of an entirely different character: it would have the practical effect of extinguishing the claimants’ claims. The claimants would be prevented from asserting a cause of action, whatever the circumstances. The court would not be deciding how to hold the ring pending the determination of the parties’ rights; it would be making a proleptic determination of the claimants’ substantive rights.’
Mr Justice Miles
[2021] EWHC 1833 (Ch)
Bailii
Senior Courts Act 1981 37(1)
England and Wales
Citing:
Cited – La Roche v Armstrong KBD 1922
Lush J said: ‘Here the solicitor has received a sum of money from his client for the purpose of his resisting on her behalf a claim by A, who says it is trust money and that the client is under a duty to return it. Under such circumstances I should . .
Still Good Law – Carl Zeiss Stiftung v Herbert Smith No.2 CA 1969
There had been long running disputes between the plaintiffs and a defendant in which the plaintiffs claimed that all of the defendant’s assets were held for the plaintiffs on trust. Before those claims had been resolved the plaintiff brought a . .
Cited – The Serious Fraud Office and Another v Litigation Capital Ltd and Others ComC 18-May-2021
. .
Cited – Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd and Others ChD 30-Jun-2010
Lord Neuberger MR said that Carl Zeiss ‘supports the proposition that notice of a claim is not the same as notice of a right’. . .
Cited – Bank of Credit and Commerce International (Overseas) Ltd and Another v Akindele CA 22-Jun-2000
The test of whether a person who received funds held them on constructive trust, was not whether he himself was dishonest, but rather whether he had knowledge of circumstances which made it unconscionable to hold on to the money received. In respect . .
Cited – Sundt Wrigley Co Ltd v Wrigley CA 23-Jun-1993
In an asset freezing order, where the defendant seeks leave to discharge liabilities, the nature of the plaintiff’s interest makes a difference. The court distinguished between cases where the plaintiff has a proprietary claim in the frozen assets . .
Cited – Ostrich Farming Corportation Limited v Ketchell CA 10-Dec-1997
The court considered the principles to be applied on injunction applications within proprietary claims.
Held: Millett LJ explained the difference between a proprietary injunction and a Mareva freezing injunction: ‘The courts have always . .
Cited – Marino v FM Capital Partners Ltd CA 2016
The test for proprietary injunctions the courts impose a stricter test on defendants wishing to use assets falling within the scope of the injunction to pay legal fees. . .
Cited – Tidewater Marine International Inc v Phoenixtide Offshore Nigeria Ltd and Others ComC 6-Oct-2015
Interpretation of world wide asset freezing order – access to funds paid as costs to solicitor – requirement to advise of source of funds. . .
Cited – A J Bekhor and Co Ltd v Bilton CA 6-Feb-1981
The plaintiff had applied for disclosure of assets under the Rules of the Supreme Court in support of a Mareva freezing order. The rules were held not to provide any such power: disclosure of assets could not be obtained as part of discovery as the . .
Cited – Maclaine Watson and Co Ltd v International Tin Council (No. 2) CA 1988
When the ITC did not satisfy an arbitral award made against it, the judgment creditor sought to discover where its assets could be found. Application to the Court was made under RSC 0.48 of the Supreme Court Act 1981 and under the Court’s inherent . .
Cited – United Mizrahi Bank Ltd v Doherty and Others ChD 15-Dec-1997
The defendant had obtained leave to use disputed funds to meet its legal costs. It sought an order (in the nature of a declaration) that such use of the funds would not make them constructive trustees. Mr Burton QC held that where leave is given to . .
Cited – Smith v Peters ChD 24-Jun-1875
Where an agreement has been entered into for the sale of a house at a fixed price, and of the fixtures and furniture therein at a valuation by a person named by both parties, and he undertakes the valuation, but if refused permission by the vendor . .
Cited – Bayer v Winter CA 1986
Fox LJ said: ‘Bearing in mind we are exercising a jurisdiction which is statutory, and which is expressed in terms of considerable width, it seems to me that the court should not shrink if it is of the opinion that an injunction is necessary for the . .
Cited – House of Spring Gardens v Waite CA 1991
The principle of abuse of process is capable of applying where the relevant earlier proceedings have taken place before a foreign court (Ireland). In this case the defendants argued that the judgment obtained in Ireland had been obtained . .
Cited – Independent Trustee Services Ltd v GP Noble Trustees Ltd and Others ChD 26-Jan-2009
Application to vary a freezing order made on a without notice application.
Held: Lewison J set out the proper approach at para. 6 by setting out the four questions which should be addressed: ‘(1) does the claimant have an arguable proprietary . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 October 2021; Ref: scu.668750

Prasannan v Royal Borough of Kensington and Chelsea: Admn 25 Feb 2010

The appellant challenged an order to pay costs summarily assessed at andpound;20,000.
Held: The order was not a penalty and was within the discretion of the district judge. The appeal failed.
[2010] EWHC 319 (Admin)
Bailii
England and Wales
Citing:
Cited – Regina v Highgate Justices ex parte Petrou QBD 1954
The Appellant was the owner of premises which she let to another party for use as a club. The other party was charged with 10 offences relating to the supply of liquor at the premises and the Appellant was joined to show cause why the club should . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 October 2021; Ref: scu.401867

Regina (Bullmore) v West Hertfordshire NHS Trust: 2007

Lloyd Jones J
[2007] EWHC 1350 (Admin)
England and Wales
Cited by:
Cited – Eweida v British Airways plc CA 16-Oct-2009
Appeal against refusal of protective costs order. The claimant said that she had been discriminated against when she was refused permission to wear her christian cross with her uniform. . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2021; Ref: scu.377527

Hall v Hall: CA 14 Jul 1999

[1999] EWCA Civ 1829
Bailii
England and Wales

Updated: 27 October 2021; Ref: scu.146744

AB v CD and Others: ChD 7 Mar 2011

The claim related to the alleged infringement of a patent. There had been a split trial, with liability being tried first. The court considered the costs implications.
Held: Henderson J said: ‘Where there is a split trial (which I understand to be the usual practice in intellectual property cases where infringement is alleged) the question arises whether disclosure of (a) the existence, and (b) the terms, of any Part 36 offer should be made to the court after it has ruled on liability in favour of the claimant, with the consequence that a further trial on quantum will take place (unless, of course, the parties are able to settle the issue of quantum in the meantime, which I believe to be in practice the most usual outcome).
A literal reading of CPR Rule 36.13(2) would suggest that even the existence of a Part 36 offer must not be communicated to the trial judge until the second stage of the case has been decided, subject only to the three exceptions contained in paragraph (3), of which the only material one for present purposes is ‘where the offeror and the offeree agree in writing that it should not apply’. That this is indeed the correct construction of the rule appears to be confirmed by contrasting it with the previous version of the rule, which dealt expressly with the case of a split trial and permitted disclosure of the fact (but not the terms) of a Part 36 offer where the issue of liability had been determined on a split trial and where the existence of the offer might be relevant to the costs of that issue.’
Henderson J
[2011] EWHC 602 (Ch)
Bailii
Civil Procedure Rules 36
England and Wales

Updated: 26 October 2021; Ref: scu.430654

Federal Bank of the Middle East Limited v Charles Hadkinson and Others: ChD 20 Oct 1999

Security for costs had been properly been required from a defendant who wished to appeal against an order, where that defendant was funded by a party outside the jurisdiction. The right of a party to appeal given by the new Civil Procedure Rules only after leave and therefore only when some merit in the appeal could be seen was not enough to set aside such an order. The requirement did not stifle the exercise of the right of appeal.
The Hon Mrs Justice Arden DBE
Times 07-Dec-1999, Gazette 25-Nov-1999, [1999] EWHC Ch 201
Bailii
England and Wales
Citing:
Appealed to – Federal Bank of the Middle East v Hadkinson and Others CA 16-Mar-2000
The Court had to decide whether an order in the standard form of freezing order was effective to cover assets which were held in the defendant’s name but which belonged beneficially to third parties.
Held: It did not. A Mareva injunction in . .

Cited by:
Appeal from – Federal Bank of the Middle East v Hadkinson and Others CA 16-Mar-2000
The Court had to decide whether an order in the standard form of freezing order was effective to cover assets which were held in the defendant’s name but which belonged beneficially to third parties.
Held: It did not. A Mareva injunction in . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.162976

Crowther v Crowther and Others: FD 22 Dec 2020

Mr C’s application that Mrs C pay his costs of the preliminary issue on an indemnity basis.
Mrs Justice Lieven DBE
[2020] EWHC 3555 (Fam), [2021] 1 WLR 2705, [2021] WLR(D) 48, [2020] Costs LR 1859
Bailii, WLRD
England and Wales

Updated: 25 October 2021; Ref: scu.657637

Attorney General v The Haberdashers’ Company And Tonna: 21 Jan 1793

Where an heir at law is brought, by order, before the court, though there is no resulting trust in his favour, he shall have his costs.
[1793] EngR 1356, (1793) 4 Bro CC 178, (1793) 29 ER 840
Commonlii
England and Wales

Updated: 23 October 2021; Ref: scu.357943

Lifely and Pomeroy-Lifely v Lifely (Costs): LRA 23 Jul 2009

Each party is to bear their own costs of these proceedings.
[2009] EWLandRA 2008 – 0961
Bailii
England and Wales

Updated: 22 October 2021; Ref: scu.429618

Gomba Holdings (UK) Ltd v Minories Finance Ltd (No 2): CA 1993

A clause entitling a mortgagee to recover legal costs from the mortgagor did not extend to costs that were unreasonably incurred or which were unreasonable in amount. Whether costs were unreasonably incurred or were unreasonable in amount was to be determined in accordance with the rules governing the taxation of costs on the indemnity basis under the Rules of the Supreme Court. The burden of showing that the costs were unreasonable in either respect was on the mortgagor and so that any doubts on those matters were to be resolved in favour of the mortgagee.
There is no jurisdictional reason why a costs judge should not assess the costs to which a party has become contractually entitled.
Scott LJ
[1993] Ch 171
England and Wales
Citing:
See Also – Gomba Holdings UK Ltd v Minories Finance Ltd CA 1988
The court was asked as to ownership of documents coming into existence in the course of a receivership. The plaintiff companies had argued that all documents belonged to them because the receivers were their agents and the documents were created in . .

Cited by:
Cited – Tim Martin Interiors Ltd v Akin Gump Llp ChD 17-Nov-2010
The company borrowed money from a bank, who instructed the defendants to act in the loan. On recovering the loan, the borrowers challenged the amounts charged by the solicitors. The court was asked what were the powers for a third party paying a . .
Applied – The Co-Operative Bank Plc v Phillips ChD 21-Aug-2014
coop_phillipsChD1408
The bank had brought possession proceedings against the defendant under two legal charges securing personal guarantees. The proceedings had been abandoned, but the court now was asked whether costs for the defendant should be on the standard or . .
Cited – Callery v Gray (1) and (2) HL 27-Jun-2002
Success fees and ATE premiums were recoverable
Objection was made to a claimed uplift of 20% sought by the plaintiff’s solicitors. The defendant’s insurers said that there had been little at risk for them.
Held: The system of conditional fees insurance had been introduced to remedy defects . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 October 2021; Ref: scu.426441

Thai Trading (a Firm) v Taylor and Taylor (of Taylors Solicitors, Caversham): CA 27 Feb 1998

A solicitor had agreed with his wife to act for her in litigation on the understanding that he would only recover his profit costs if she succeeded.
Held: This agreement did not offend public policy. This type of agreement was distinguished from a contingency fee agreement which entitled a solicitor to a reward over and above his ordinary profit costs if he won. The latter was an arrangement which had always been condemned by English courts as tending to corrupt the administration of justice. The provided that a solicitor engaged in any contentious business might not agree to receive a contingency fee (a fee payable only in the event of success in the proceedings). The fact that a professional rule prohibited a particular practice did not of itself make the practice contrary to the general law.
Millett LJ said that fears that lawyers might be tempted by conditional fee arrangements to act improperly were exaggerated, and that there was a countervailing public policy in making justice readily accessible to persons of modest means.
Millett LJ, Kennedy and Hutchison LJJ
Times 06-Mar-1998, Gazette 25-Mar-1998, Gazette 16-Apr-1998, [1998] QB 781, [1998] EWCA Civ 370, [1998] 1 Costs LR 122, [1998] 2 FLR 430, [1998] Fam Law 586, [1998] 3 All ER 65, [1998] 2 WLR 893, [1998] PNLR 698, [1998] 3 FCR 606
Bailii
Courts and Legal Services Act 1990, Solicitors Practice Rules 1987
England and Wales
Citing:
(Overlooked?) – Swain v The Law Society HL 1983
The Solicitors’ Practice Rules had the force of a statute, being rules made by the Council of the Law Society with parliamentary sanction for the protection of that section of the public who might be in need of legal advice, assistance or oversight. . .

Cited by:
Distinguished – Hughes v Kingston Upon Hull City Council QBD 9-Nov-1998
The Solicitors Practice Rules have the effect of law, and it is still improper to agree to pursue contentious proceedings on a contingency fee arrangement without specific statutory sanction, especially in criminal proceedings. An agreement for . .
Not followed – Geraghty and Co v Awwad and Another CA 25-Nov-1999
The court considered an assertion that a contract for fee sharing with a solicitors firm was unenforceable being in breach of the Solicitors Practice Rules.
Held: The court refused to follow Thai Trading. There should no longer be any common . .
Cited – Hollins v Russell etc CA 22-May-2003
Six appeals concerned a number of aspects of the new Conditional Fee Agreement.
Held: It should be normal for a CFA, redacted as necessary, to be disclosed for costs proceedings where a success fee is claimed. If a party seeks to rely on the . .
Cited – Kenneth L Kellar Carib West Limited v Stanley A Williams PC 24-Jun-2004
(Turks and Caicos Islands) The appellant had failed in his action but argued that he should not be called upon to pay the costs of the respondent because there had been an unlawful conditional fee agreement. The bill had referred to one factor as . .
Incorrect – Westlaw Services Ltd and Another v Boddy CA 30-Jul-2010
The claimant said that it was due sums from the estate of the deceased solicitor. The executors said that the agreement was unlawful in that it had amounted to an agreement to share fees with an unauthorised body.
Held: The agreement was . .
Cited – Sibthorpe and Morris v London Borough of Southwark CA 25-Jan-2011
The court was asked as to the extent to which the ancient rule against champerty prevents a solicitor agreeing to indemnify his claimant client against any liability for costs which she may incur against the defendant in the litigation in which the . .
Cited – Callery v Gray (1) and (2) HL 27-Jun-2002
Success fees and ATE premiums were recoverable
Objection was made to a claimed uplift of 20% sought by the plaintiff’s solicitors. The defendant’s insurers said that there had been little at risk for them.
Held: The system of conditional fees insurance had been introduced to remedy defects . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 October 2021; Ref: scu.143848

Callery v Gray (No 2): CA 31 Jul 2001

A plaintiff could recover the costs of insuring himself against the risk of having to pay the other sides costs, and finding his own costs irrecoverable (after the event or ATE insurance). The earlier case had decided that such premiums may be recoverable, but the court did not have sufficient information to decide what was a reasonable premium. Several elements were clearly required to be covered by a premium, such as would make the insurer’s business properly viable, but the premium was challenged as to the benefit payable by way of re-imbursement of disbursements paid by the insured in the event of a failure of the claim. S29 should be read to include the insurance for costs which were not recoverable from the other party, including such disbursements.
The court defined insurance: ‘Insurance is the purchase of an indemnity against the risk of loss caused by a fortuity’.
Lord Phillips of Worth Matravers, Master of the Rolls, and Lord Justice Brooke
Times 24-Oct-2001, [2001] EWCA Civ 1246, [2001] 1 WLR 2142, [2001] 2 Costs LR 205, [2002] RTR 11, [2001] 4 All ER 1, [2001] CPLR 501, [2001] Lloyd’s Rep IR 765
Bailii
Access to Justice Act 1999 29
England and Wales
Citing:
See Also – Callery v Gray, Russell v Pal Pak Corrugated Ltd (No 1) CA 18-Jul-2001
Claimants in modest, straightforward personal injury claims cases should have re-imbursed to them by the defendant, the cost of after the event insurance, if necessary by costs only proceedings. The solicitor’s success fee should also be recovered. . .

Cited by:
Cited – Sarwar v Alam CA 19-Sep-2001
Litigation had followed an accident. The claimant, a passenger, sought and won damages for personal injuries. He had taken out legal expenses insurance, and at dispute was the recovery of the cost of that insurance. He had been unaware of having the . .
Cited – Halloran v Delaney CA 6-Sep-2002
The claimant had succeeded in his claim for personal injuries, and had issued costs only proceedings. The defendant challenged the ‘success fee’ claimed as part of the conditional fee arrangement.
Held: The costs recoverable were to be . .
Cited – In re Claims Direct Test Cases CA 12-Feb-2003
The parties sought repayment as part of their costs of insurance premiums paid by claimants undertaking litigation.
Held: The underwriters charged andpound;140.00 for each case. Claims Direct charged a premium of andpound;1,250.00 for each . .
See Also – Callery v Gray, Russell v Pal Pak Corrugated Ltd (No 1) CA 18-Jul-2001
Claimants in modest, straightforward personal injury claims cases should have re-imbursed to them by the defendant, the cost of after the event insurance, if necessary by costs only proceedings. The solicitor’s success fee should also be recovered. . .
Appeal from – Callery v Gray (1) and (2) HL 27-Jun-2002
Success fees and ATE premiums were recoverable
Objection was made to a claimed uplift of 20% sought by the plaintiff’s solicitors. The defendant’s insurers said that there had been little at risk for them.
Held: The system of conditional fees insurance had been introduced to remedy defects . .
Cited – Sibthorpe and Morris v London Borough of Southwark CA 25-Jan-2011
The court was asked as to the extent to which the ancient rule against champerty prevents a solicitor agreeing to indemnify his claimant client against any liability for costs which she may incur against the defendant in the litigation in which the . .
Cited – McGraddie v McGraddie and Another (Scotland : Costs) SC 28-Jan-2015
The parties, father and son had fallen out. The father said that a property purhased by the son with money provided by the father, was held in trust for the father. The Court had rejected the argument of the son that this had been a gift. The . .
Cited – Times Newspapers Ltd and Others v Flood and Others SC 11-Apr-2017
Three newspaper publishers, having lost defamation cases, challenged the levels of costs awarded against them, saying that the levels infringed their own rights of free speech.
Held: Each of the three appeals was dismissed. . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 October 2021; Ref: scu.166715

The Commission for Equality and Human Rights v Griffin and Others: Admn 21 Mar 2011

The Commission had sought an order for the defendants to be committed to prison for failing toi comply with court orders requiring amendment to the Constitution of the British National Party. The action failed and the defendants applied for their costs.
Held: Two defendants had not been involved in creating the difficulties and their costs were payable. Mr Griffin had to some extent contributed to the expense but not to such an extent that he should be deprived of his costs, though he was not awarded them on an indemnity basis.
[2011] EWHC 675 (Admin)
Bailii
England and Wales

Updated: 22 October 2021; Ref: scu.430744

Weeks v Neophitou: LRA 15 Jun 2010

LRA Costs : Parties Without Representation – Litigants in person – entitlement to costs and expenses; Litigants in Person (Costs and Expenses) Act 1975, s 1(1), (2); Civil Procedure Rules: CPR 2.3(3), 48.6(1) – (5); Tribunals, Courts and Enforcement Act 2007, sch. 8, para. 6; Value Added Tax Act 1983; Value Added Tax Tribunals Rules 1986, r. 29; RSC Ord. 62, rr. 2, 18(1), 35; Arbitration Act 1950, s.18(2); Solicitors Act 1974, ss. 20, 25(1); Civil Procedure Act 1997; Adjudicator to HM Land Registry (Practice and Procedure) Rules 2003: rr. 3, 35, 42, 43, 50, 60; Land Registration Act 2002, s. 109(3)(d); Courts and Legal Services Act 1990. ss. 27, 119(1).
[2010] EWLandRA 2009 – 0783
Bailii
England and Wales

Updated: 20 October 2021; Ref: scu.517418

Clarke v Fennoscandia Ltd and others: SCS 10 Mar 2000

Outer House – application to recover costs on award by court in Delaware
Lord Johnston
[2000] ScotCS 62
Bailii
Scotland
Cited by:
See Also – Clarke v Fennoscandia Limited and others OHCS 23-Jul-2003
. .
See Also – Clarke v Fennoscandia Limited Freakley, Phillips OHCS 2-Dec-2004
The claimant had said that the defendants conspired to deny him the presidency of a company. He lost his case in the US, and the defendants chased him for costs. He asserted that the US judgment had been obtained by fraud. The defendants undertook . .
See Also – Clarke v Fennoscandia Ltd and others (Scotland) HL 12-Dec-2007
After being awarded costs in proceedings in the US, the defendants chased the claimant for their costs in Scotland. He sought an interdict saying that the judgment had been obtained by fraud. The defendant had give an undertaking not to pursue the . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 October 2021; Ref: scu.169392

Roger Preston Group Ltd v Revenue and Customs (Costs – Complex Category Case): FTTTx 4 May 2021

COSTS – Complex category case – Applications under Rule 10(1)(b) for unreasonable costs and Rule 10(1)(c) for costs following the event – Whether costs to be assessed on the standard or indemnity basis – ‘Costs of and incidental’ – Catana and Distinctive Care considered – Interest on costs – Date from which to run, and rat
[2021] UKFTT 132 (TC)
Bailii
England and Wales

Updated: 20 October 2021; Ref: scu.663733

Finsbury Food Group Plc v Dover: QBD 7 Aug 2020

Pre-action protocol for low value personal injury claims against employer – out of protocol
Lambert J
[2020] EWHC 2176 (QB), [2020] WLR(D) 461
Bailii, WLRD
England and Wales

Updated: 19 October 2021; Ref: scu.653077

Glover v Barker and Others: CA 21 Aug 2020

Important issues as to the circumstances in which litigation friends should be ordered to pay other parties’ costs.
Lord Justice Newey
[2020] EWCA Civ 1112
Bailii
England and Wales

Updated: 19 October 2021; Ref: scu.653177

Elgamal v Westminster City Council: QBD 15 Sep 2021

The defendant appealed an order for damages and indemnity costs after it failed to accept the claimant’s Part 36 Offer. They said that the judge should have found a deliberate attempt to exaggerate the damages.
Mr Justice Jacobs
[2021] EWHC 2510 (QB)
Bailii
Criminal Justice and Courts Act 2015 57
England and Wales

Updated: 18 October 2021; Ref: scu.668312

Acorn Services (Edinburgh) Ltd v Policek: ScSf 16 Dec 2014

[2014] ScotSC 105
Bailii
Scotland

Updated: 18 October 2021; Ref: scu.542863

Jovicic and Others v The Serbian Orthodox Church-Serbian Patriarchy: QBD 13 Aug 2020

Cook M
[2020] EWHC 2229 (QB)
Bailii
England and Wales

Updated: 17 October 2021; Ref: scu.653124

Wright v Bennett: 1948

[1948] 1 KB 601
England and Wales
Cited by:
Cited – Plevin v Paragon Personal Finance Ltd SC 29-Mar-2017
The court had ordered the respondent to pay the claimant’s costs. These were high because the solicitors had acted under a conditional fee agreement, and disproportionate to the funds at issue. The respondents challenged assignments of the original . .

Lists of cited by and citing cases may be incomplete.
Updated: 17 October 2021; Ref: scu.668241

Orchard (Developments) Holdings Plc v Reuters Ltd: CA 2 Sep 2008

Longmore LJ
[2008] EWCA Civ 1017
Bailii
England and Wales

Updated: 16 October 2021; Ref: scu.276767

Outwing Construction Ltd v H Randell and Son Ltd: TCC 15 Mar 1999

Abridgement of time in Court proceedings to enforce decision of Adjudicator.
An adjudicator was appointed to decide a dispute pursuant to section 108 of the Housing Grants, Construction and Regeneration Act 1996. Before doing so he decided that the scheme in Part I of the Schedule to the Scheme for Construction Contracts (England and Wales) Regulations, 1998 applied. On 12 February 1999 he made a decision that the defendant should pay the plaintiff approximately pounds 16,000 and that the decision should be complied with peremptorily. Although requested to do so the defendant did not pay so on 8 March the plaintiff issued and served a writ for the amount due plus fixed costs and on 10 March issued and served a summons to abridge the time for acknowledging service of the writ and for taking other steps, including in relation to any application for summary judgment. The summons was returnable at 2 pm on 12 March. At 11 am on 12 March the defendant paid the amount claimed and the fixed costs stated on the writ. The plaintiff sought an assessment of costs that it had incurred. Held, any automatic stay of the action applicable under RSC Order 6, rule 2(1)(b) should be lifted, that the plaintiff was justified in issuing the summons to abridge time and was entitled to the costs in connection with it but not to any costs relating to the writ. The costs were assessed summarily.
[1999] EWHC Technology 248
Bailii
England and Wales

Updated: 16 October 2021; Ref: scu.201774

Pineport Ltd v Grangeglen Ltd: ChD 31 Aug 2016

Issues as to costs consequent on grant of relief from forfeiture
Chief Master Marsh
[2016] EWHC 2170 (Ch)
Bailii
England and Wales
Citing:
Main Judgment – Pineport Ltd v Grangeglen Ltd ChD 13-Jun-2016
Application for relief from forfeiture by underlessee. . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.568896

Butcher v Wolfe and Another: CA 30 Oct 1998

The parties had been partners in a family farm. On dissolution there was a dispute as to apportionment of costs. An offer had been ‘without prejudice save as to costs’.
Held: Costs may be denied to a plaintiff who had received a Calderbank offer before proceedings but had refused to negotiate, even though she got more at trial. In matrimonial matters such an offer must be accompanied by full disclosure. An offer to settle made before an action and which was exceeded in the judgement for the plaintiff could still operate to deny the plaintiff costs where the court felt a reasonable plaintiff should have settled on that basis, or tried to negotiate.
Gazette 18-Nov-1998, Gazette 11-Nov-1998, Times 09-Nov-1998, [1999] 2FCR 165, [1998] EWCA Civ 1648
England and Wales
Citing:
Cited – Gojkovic v Gojkovic (No 2) CA 1-Apr-1991
In ancillary relief proceedings, the husband had not made frank disclosure of his assets. The final Calderbank offer of andpound;600,000 was made only the day before the substantive hearing. The offer was rejected. The judge awarded the wife a lump . .
Cited – Sugar v Venables and Michael Joseph Limited (2) CA 17-Oct-1997
The appellant challenged an order for costs against him. He had begun defamation proceedings which were settled upon the terms of an offer without prejudice as to costs. The plaintiff was ordered to pay the defendant’s substantial costs incurred . .
Cited – Calderbank v Calderbank CA 5-Jun-1975
Letter Without Prejudice Save as to Costs
Husband and wife disputed provision under 1973 Act, and a summons under section 17 of the 1882 Act. The wife had offered to transfer a house to H occupied by his mother, worth about pounds 12,000, in return for him leaving the matrimonial home. He . .
Cited – McDonnell v McDonnell CA 1977
In family proceedings, a costs letter had been written in the form suggested in Calderbank.
Held: The court accepted and endorsed the practice suggested by Cairns LJ. Ormrod LJ said: ‘The important factor which distinguishes this case is the . .
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Cited – C and H Engineering v F Klucznic and Sons Limited 1992
It is for a defendant to make a clear and unambiguous offer and nothing short of this will provide the protection against costs which is sought. . .
Cited – Roache v News Group Newspapers Ltd CA 23-Nov-1992
In his libel action the plaintiff was awarded andpound;50,000 damages. The same sum had been paid into court, but he obtained additionally an injunction against further publication of the libel and on that account was awarded his costs by the judge . .
Cited – Singh v Parkfield Group Plc QBD 27-Jun-1994
An offer to settle must be backed by a payment into court in debt actions. The defendant here could have protected his position by a payment into court, and therefore a Calderbank offer was ineffective. . .

Cited by:
Cited – Norris v Norris, Haskins v Haskins CA 28-Jul-2003
The court considered how orders for costs were to be made in ‘big money’ cases.
Held: There were two sets of rules. Cases should be considered by first applying the Civil Procedure Rules. This would allow the court to consider the full range . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.145127

Brake and Others v Lowes and Others: CA 13 Nov 2020

Application for order for costs against a funding third party.
Tomlinson, Gloster, David Richards LJJ
[2020] WLR(D) 614, [2020] EWCA Civ 1491, [2021] Bus LR 577
Bailii, WLRD
Senior Courts Act 1981 51
England and Wales

Updated: 16 October 2021; Ref: scu.655659

Norris v Norris, Haskins v Haskins: CA 28 Jul 2003

The court considered how orders for costs were to be made in ‘big money’ cases.
Held: There were two sets of rules. Cases should be considered by first applying the Civil Procedure Rules. This would allow the court to consider the full range of circumstances of each case. The court required a full discretion, and that should be retained. When looking at Calderbank offers, the court could make fuller use of the provisions of the 1999 Rules, GW -v- RW needs rethinking, and the rules should be amended.
Dame Butler Sloss, Thorpe and Mantell LJJ
[2003] EWCA Civ 1084, Times 26-Aug-2003
Bailii
Family Proceedings (Amendment No 2) Rules 1999 (1999 No 3491) 2.69B, Civil Procedure Rules 44.3
England and Wales
Citing:
Doubted – GW v RW (Financial Provision: Departure from Equality) FD 18-Mar-2003
An entitlement to an equal division must reflect not only the parties’ respective contributions ‘but also an accrual over time’, and it would be ‘fundamentally unfair’ that a party who has made domestic contributions during a marriage of 12 years . .
Cited – Gojkovic v Gojkovic (No 2) CA 1-Apr-1991
In ancillary relief proceedings, the husband had not made frank disclosure of his assets. The final Calderbank offer of andpound;600,000 was made only the day before the substantive hearing. The offer was rejected. The judge awarded the wife a lump . .
Cited – Calderbank v Calderbank CA 5-Jun-1975
Letter Without Prejudice Save as to Costs
Husband and wife disputed provision under 1973 Act, and a summons under section 17 of the 1882 Act. The wife had offered to transfer a house to H occupied by his mother, worth about pounds 12,000, in return for him leaving the matrimonial home. He . .
Cited – McDonnell v McDonnell CA 1977
In family proceedings, a costs letter had been written in the form suggested in Calderbank.
Held: The court accepted and endorsed the practice suggested by Cairns LJ. Ormrod LJ said: ‘The important factor which distinguishes this case is the . .
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Cited – Butcher v Wolfe and Another CA 30-Oct-1998
The parties had been partners in a family farm. On dissolution there was a dispute as to apportionment of costs. An offer had been ‘without prejudice save as to costs’.
Held: Costs may be denied to a plaintiff who had received a Calderbank . .
Cited – Singer (formerly Sharegin) v Sharegin 1984
In family proceedings, the starting point for the award of costs is that they prima facie follow the event but that presumption may be displaced much more easily than, and in circumstances which would not apply, in other divisions of the High Court. . .

Cited by:
Cited – Vaughan v Vaughan CA 2-Nov-2007
H appealed an ancillary relief order giving certain extra rights in the family property on its sale.
Held: ‘the case demonstrates that, in an ancillary relief appeal, even the most conscientious appellate judge can fall into error if, having . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.184906

Potter v Potter: FD 1982

The court considered the admissibility of without prejudice correspondence on costs decisions.
[1982] 3 All ER 321
England and Wales
Citing:
Applied – Calderbank v Calderbank CA 5-Jun-1975
Letter Without Prejudice Save as to Costs
Husband and wife disputed provision under 1973 Act, and a summons under section 17 of the 1882 Act. The wife had offered to transfer a house to H occupied by his mother, worth about pounds 12,000, in return for him leaving the matrimonial home. He . .

Cited by:
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.254329

Crouch v King’s Healthcare NHS Trust: CA 15 Oct 2004

The defendants sought approval of their practice of making a written offer to the claimants rather than making a payment into court. The offer had been accepted but only after the defendant had purported to withdraw it.
Held: ‘it certainly is not open to any defendant to decree unilaterally that where a money claim is being made against it, it will not make a payment into court but will make a written offer on the basis that Part 36 will apply as though he had made a payment into court. ‘ in making the decision, the judge had been exercising a discretion, and that exercise should not be disturbed.
Lord Justice Waller Lord Justice Mance And Sir Christopher Staughton
[2004] EWCA Civ 1332
Bailii
Civil Procedure Rules 836 44
England and Wales
Citing:
Cited – Amber v Stacey CA 15-Nov-2000
The defendant challenged an order that he should pay the plaintiff’s costs, having made an offer in correspondence which was not accepted.
Held: The claimant had exaggerated his claim, but the defendant’s offer had been inadequate. The judge’s . .
Cited – Southampton Container Terminals Ltd v Hansa Schiffahrts GmbH (The Maersk Colombo) CA 3-May-2001
The claimants operated the container terminal in Southampton. A crane was struck and damaged beyond repair by the defendants’ vessel. The crane was not replaced because before the casualty the claimants had ordered two new cranes. Loss of use of the . .
Cited – Calderbank v Calderbank CA 5-Jun-1975
Letter Without Prejudice Save as to Costs
Husband and wife disputed provision under 1973 Act, and a summons under section 17 of the 1882 Act. The wife had offered to transfer a house to H occupied by his mother, worth about pounds 12,000, in return for him leaving the matrimonial home. He . .
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Cited – Cumper v Pothecary 1941
The court considered the nature of a payment into court: ‘there is nothing contractual about payment into court. It is wholly a procedural matter and has no true analogy to a settlement arranged between the parties out of court, which, of course, . .
Cited – Flynn v Scougall CA 13-Jul-2004
The defendant had made a payment into court. She then applied to reduce the amount paid in, but the claimant accepted the original sum before that application was heard. The defendant appealed saying that their application operated as a stay.
Cited – MRW Technologies v Cecil Holdings 22-Jun-2001
The court heard an appeal against a Master’s order which had given the defendant permission under rule 36.6(5) to withdraw a Part 36 payment.
Held: The same considerations apply to giving permission to withdraw money in court as to refusing . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.216445

McDonnell v McDonnell: CA 1977

In family proceedings, a costs letter had been written in the form suggested in Calderbank.
Held: The court accepted and endorsed the practice suggested by Cairns LJ. Ormrod LJ said: ‘The important factor which distinguishes this case is the fact that the appellant husband’s solicitors took advantage of a recent decision of this court in Calderbank v. Calderbank. On December 16, 1975, shortly after serving the notice of appeal, they wrote a letter to the wife’s solicitors offering to withdraw the appeal altogether if the wife would agree to a modification of Mrs. Justice Lane’s order in respect of the house. In accordance with the procedure suggested in Calderbank, they headed the letter ‘Without Prejudice’ but reserved the right to bring it to the attention of the court after judgment on the question of costs.’
and ‘Clearly this is a very important consideration in exercising the court’s discretion with regard to costs.It would be wrong, in my judgment, to equate an offer of compromise in proceedings such as these [ancillary proceedings following a divorce] precisely to a payment into court. I see no advantage in the court surrendering its discretion in these matters as it has to all intents and purposes done where a payment into court has been made. A Calderbank offer should influence but not govern the exercise of the discretion. The question to my mind is whether, on the basis of the facts known to the wife and her advisers and without the advantage of hindsight, she ought reasonably to have accepted the proposals in the letter of December 16, bearing always in mind the difficulty of making accurate forecasts in cases such as this. On the other hand, parties who are exposed to the full impact of costs need some protection against those who can continue to litigate with impunity under a civil aid certificate.’
Ormrod LJ
[1977] 1 WLR 34
England and Wales
Citing:
Approved – Calderbank v Calderbank CA 5-Jun-1975
Letter Without Prejudice Save as to Costs
Husband and wife disputed provision under 1973 Act, and a summons under section 17 of the 1882 Act. The wife had offered to transfer a house to H occupied by his mother, worth about pounds 12,000, in return for him leaving the matrimonial home. He . .

Cited by:
Cited – Butcher v Wolfe and Another CA 30-Oct-1998
The parties had been partners in a family farm. On dissolution there was a dispute as to apportionment of costs. An offer had been ‘without prejudice save as to costs’.
Held: Costs may be denied to a plaintiff who had received a Calderbank . .
Cited – Norris v Norris, Haskins v Haskins CA 28-Jul-2003
The court considered how orders for costs were to be made in ‘big money’ cases.
Held: There were two sets of rules. Cases should be considered by first applying the Civil Procedure Rules. This would allow the court to consider the full range . .
Cited – Gojkovic v Gojkovic (No 2) CA 1-Apr-1991
In ancillary relief proceedings, the husband had not made frank disclosure of his assets. The final Calderbank offer of andpound;600,000 was made only the day before the substantive hearing. The offer was rejected. The judge awarded the wife a lump . .
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.186057

Howard v Fanshawe: 29 Jun 1895

In equity a proviso for re-entry in a lease is to be treated as a security for the payment of the rent.
A tenant applying for relief from forfeiture will normally be required to pay the lessor’s costs of the forfeiture proceedings, save in so far as those costs have been increased by the lessor’s opposition to the grant of relief, upon appropriate terms.
The forfeiture by peaceable re-entry took place on 21 February 1894 and the application for relief was made on 6 July 1894: within six months. Stirling J said: ‘The statute fixes a period of six months only from recovery in ejectment within which an application for relief may be made, and it is said that the whole evil which the Act was passed to remove would be re-introduced if it were to be held that the jurisdiction to give relief were to be applied in a case where peaceable possession had been taken. Upon that two observations may be made: first, that if the landlord desires to limit the time within which the tenant can apply for relief, he can avail himself of legal process to recover possession and so get the benefit of the statute; and, secondly, that it does not follow that a Court of Equity would now grant relief at any distance of time from the happening of the event which gave rise to it. It appears to me that, inasmuch as the inconvenience of so doing has been recognised by the legislature, and a time has been fixed after which, in a case of ejectment, no proceedings for relief can be taken, a similar period might well be fixed, by analogy, within which an application for general relief in Equity must be made. A Court of Equity might possibly say that the action for relief must be brought within six months from the resumption of possession by the lessor.’
McMullen J
[1895] 2 Ch 581, [1895] UKLawRpCh 111
Commomlii
Common Law Procedure Act 1852
England and Wales
Cited by:
Cited – Daejan Investments Ltd v Benson and Others SC 6-Mar-2013
Daejan owned the freehold of a block of apartments, managing it through an agency. The tenants were members of a resident’s association. The landlord wished to carry out works, but failed to complete the consultation requirements. The court was . .

Lists of cited by and citing cases may be incomplete.
Updated: 15 October 2021; Ref: scu.471751

Whitecap Leisure Ltd v John H Rundle Ltd: CA 16 Jul 2008

The court set out which of the two parties had indeed been successful on the appeal and might be entitled to an award of costs.
Ward LJ, Wall LJ, Moore-Bick LJ
[2008] EWCA Civ 1026
Bailii
England and Wales

Updated: 15 October 2021; Ref: scu.276471

Clutterbuck and Another v HSBC Plc and Others: ChD 2 Oct 2015

Application for an order that the claimants pay the costs of the 11th defendant to these proceedings on an indemnity basis.
David Richards J
[2015] EWHC 3233 (Ch), [2016] 1 Costs LR 13
Bailii
England and Wales

Updated: 15 October 2021; Ref: scu.566763

TM Eye Limited, Regina (on The Application of) v Crown Court at Southampton: Admn 30 Sep 2021

The claimant had pursued a private prosecution for trade mark infringement, but had been refused its costs on succeeding because of the defendant’s impecuniosity’s. It now appealed that refusal.
Held: Judicial review was granted, but the request for costs refused.
Lord Justice Holroyde and Mrs Justice Cutts
[2021] EWHC 2624 (Admin)
Bailii
England and Wales

Updated: 15 October 2021; Ref: scu.668453

The Haberdashers Company v Attorney-General, And Others: PC 21 Jan 1702

The trustees of a charity mismanage the fund, and neglect the objects of it.
Held: That they should make good their deficiency out of their own estate, and pay the costs of the suit.
[1702] EngR 110, (1702) 2 Bro PC 370, (1702) 1 ER 1003
Commonlii
England and Wales

Updated: 14 October 2021; Ref: scu.392327

Schwartz v Highbury Corner Magistrates’ Court: Admn 3 Jun 2009

[2009] EWHC 1397 (Admin)
Bailii
England and Wales

Updated: 14 October 2021; Ref: scu.347259

Grender and others v Dresden and others: ChD 18 Mar 2009

Norris J
[2009] EWHC 500 (Ch)
Bailii
England and Wales

Updated: 14 October 2021; Ref: scu.322745

Mubarak v Mubarik and others: FD 12 Jan 2007

Holman J
[2007] EWHC 220 (Fam)
Bailii
England and Wales
Citing:
See Also – Mubarak v Mubarak FD 30-Nov-2000
In ancillary relief proceedings, where a respondent company director conceded that the assets and income of a company could be treated as his own, it could be proper to draw aside the veil of incorporation. Nevertheless the court should be careful . .
See Also – Mubarak v Mubarak CA 2001
A judgment summons, issued was issued by the wife to enforce a lump sum order made against her husband in their divorce proceedings. The judge had performed his statutory duty which included having to satisfy himself under s. 25 of the 1973 Act of . .
See Also – Mubarak v Mubarik 2003
The court was asked as to whether the expression ‘in the possession of’ in RSC Ord.48 extended to documents not physically held by the judgment debtor but to sight of which he has a clear and enforceable right.
Held: The expression did so . .
See Also – Mubarak v Mubarik FD 9-May-2006
. .

Cited by:
See Also – Mubarak v Mubarak and others CA 17-Jul-2007
Application for leave to appeal against ancillary relief order – protracted proceedings. . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 October 2021; Ref: scu.250614

Petrotrade Inc v Texaco Ltd: CA 23 May 2000

Where a defendant failed to beat a claimant’s part 36 offer to settle, but judgment was given summarily the rule did not mean that the defendant was necessarily to be ordered to pay costs on an indemnity basis, and to pay interest. Summary judgment did not involve a trial as required by the rule, and the early and relatively cheap settlement indicated the absence of need for such a rule. Nevertheless a court retained a discretion to make such an award.
Lord Woolf MR
Times 14-Jun-2000, [2001] 4 All ER 853, [2002] 1 WLR 947, [2000] EWCA Civ 512, [2002] 1 Costs LR
Bailii
England and Wales
Cited by:
Cited – Kiam II v MGN Ltd (2) CA 6-Feb-2002
An appeal against a damages award in a defamation case had been unsuccessful. The claimant now appealed for the award of indemnity costs. The claimant had made an offer of compromise, which had been ignored by the defendant.
Held: If a party . .
Cited – Three Rivers District Council and others v The Governor and Company of the Bank of England ComC 12-Apr-2006
The claimants had pursued compensation over many years from the defendants alleging various kinds of misfeasance in regulating the bank BCCI. The action had collapsed.
Held: ‘this was extraordinary litigation which came to an abrupt albeit . .
Appeal from – Inland Revenue Commissioners v Commerzbank AG ChD 1990
Mummery J set out the correct approach to interpretation of double taxation agreements as laid down in Fothergill. He said ‘(1) It is necessary to look first for a clear meaning of the words used in the relevant article of the convention, bearing in . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 October 2021; Ref: scu.135750

SC v London Borough of Hackney: CoP 5 Aug 2010

[2010] EWCOP B29
Bailii
England and Wales

Updated: 14 October 2021; Ref: scu.524776

Baker v H and Another: FD 15 Oct 2009

Challenge to order to pay security costs of 750000 on appointment as property and affairs deputy.
HH Judge Hazel Marshall QC
[2009] EWHC B31 (Fam), [2009] EWHC B31 (COP), [2009] EWCOP B31, [2009] EWCOP B31, [2010] 1 WLR 1103, [2009] WTLR 1719, (2009) 12 CCL Rep 695
Bailii, Bailii, Bailii, Bailii, Bailii
England and Wales

Updated: 14 October 2021; Ref: scu.381750

In Re F (A Child): CA 10 Jul 2008

Renewed application for leave to appeal against costs order in children proceedings.
[2008] EWCA Civ 938
Bailii
England and Wales

Updated: 13 October 2021; Ref: scu.272552

Aercap Ireland Ltd and Others v Hainan Airlines Holding Co Ltd (Costs): ComC 10 Jul 2020

Mrs Justice Cockerill
[2020] EWHC 2026 (Comm)
Bailii
England and Wales

Updated: 13 October 2021; Ref: scu.652959

Barking, Havering and Redbridge University Hospitals NHS Trust v AKC: QBD 29 Sep 2021

Application for permission to appeal, against the order dismissing the appellant’s application to strike out the respondent’s bill of costs for non-compliance with the Civil Procedure Rules and to require the respondent to serve a CPR-compliant bill of costs.
Mrs Justice Steyn, Costs Judge/Master Brown
[2021] EWHC 2607 (QB)
Bailii
England and Wales

Updated: 13 October 2021; Ref: scu.668311

Davy v Brown: 24 Jan 1835

[1835] EngR 430, (1835) 1 Bing NC 460, (1835) 131 ER 1194
Commonlii
England and Wales

Updated: 13 October 2021; Ref: scu.315938

GREP London Portfolio II Trustee 3 Ltd and Another v BLFB Ltd and Another: TCC 16 Apr 2021

Costs on withdrawal of claim
The Honourable Mr Justice Waksman
[2021] EWHC 1850 (TCC)
Bailii
England and Wales

Updated: 13 October 2021; Ref: scu.668317

Cockerel And Brabant: 1744

T. How far it is necessary to apply to a Judge for his certificate, in order to have full costs, when the damages are under 40s.
[1744] EngR 418, (1744) 1 Barn KB 223, (1744) 94 ER 152 (A)
Commonlii
England and Wales

Updated: 10 October 2021; Ref: scu.382274

Hughes and Another v Commissioners of Customs and Excise etc: CA 20 May 2002

N was charged with VAT fraud. He was the joint owner of a company with his brother T each holding 50% of the shares. T was never charged. A restraint and receivership order was made against N, preventing the company from dealing in any way with its assets. N was acquitted but the assets of the company were used to meet the receiver’s costs and expenses. In each case the Commissioners had been appointed receivers of the applicant’s assets pending a decision in parallel criminal proceedings on a confiscation order. The final orders were not made, and the Commissioners appealed orders denying them their costs from the assets they had realised.
Held: Save as provided otherwise, statutory receivers were to be treated precisely as their common-law counterparts. The regime of restraint and receivership orders was not contrary to the applicants’ human rights. Acquitted defendants are not, save exceptionally, entitled to compensation for being deprived of their liberty while on remand, and it was no more unfair that they should be uncompensated for any adverse effects that restraint and receivership orders might have had upon their assets.
The introduction of CPR 69.7 had made a significant change in law and practice for receivers as regards remuneration.
Simon Brown LJ said: ‘I entirely accept that an acquitted (or indeed unconvicted) defendant must for these purposes be treated as an innocent person . . I cannot accept, however, that for this reason it must be regarded as disproportionate, still less arbitrary (another contention advanced by the respondents), to leave the defendant, against whom restraint and receivership orders have been made, uncompensated for such loss as they may have caused him – unless, of course, by establishing ‘some serious fault’ on the prosecutor’s part he can bring himself within the strict requirements of section 89.
It is common ground that acquitted defendants are not, save in the most exceptional circumstances, entitled to compensation for being deprived of their liberty whilst on remand or indeed for any other heads of loss suffered through being prosecuted. In my judgment it is no more unfair, disproportionate or arbitrary that they should be uncompensated too for any adverse effects that restraint and receivership orders may have had upon their assets.’
Lord Justice Simon Brown, Lord Justice Laws and Lady Justice Arden
[2003] 1 WLR 177, Times 31-May-2002, Gazette 27-Jun-2002, [2002] EWCA Civ 670, [2002] 4 All ER 633
Bailii
Supreme Court Act 1981 31, Criminal Justice Act 1988 Part VI, European Convention on Human Rights First Protocol, Civil Procedure Rules 69.7
England and Wales
Cited by:
Cited – In re X (Restraint Order: Payment out) QBD 22-Apr-2004
A restraint order had been made in respect of the defendant’s assets pending trial. Application was made to release a sum to pay the defendant’s company debts.
Held: A payment could be made only where the the realisable value of the property . .
Cited – Capewell v Commissioners for HM Customs and Excise and Sinclair CA 2-Dec-2004
The court approved guidelines for the appointment and remuneration of a receiver appointed under the 1988 Act. . .
Cited – Capewell v Customs and Excise and Another (No 2) CA 29-Jul-2005
The Commissioners had been appointed as receiver of the claimant’s assets. The receivership was later discharged, but should have been discharged earlier, the court had the power not only to calculate the level of remuneration but also who should be . .
Cited – Capewell v Revenue and Customs and Another HL 31-Jan-2007
The defendant appealed against an order regarding the remuneration of a receiver appointed to administer a restraint order placed on the assets of the defendant under the 1988 Act on the basis of an allegation that the defendant had been involved in . .
Cited – Barnes (As Former Court Appointed Receiver) v The Eastenders Group and Another SC 8-May-2014
Costs of Wrongly Appointed Receiver
‘The contest in this case is about who should bear the costs and expenses of a receiver appointed under an order which ought not to have been made. The appellant, who is a former partner in a well known firm of accountants, was appointed to act as . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.172232

Wales (T/A Selective Investment Services) v CBRE Managed Services Ltd and Another: ComC 30 Apr 2020

Costs order after dismissal of claim
His Honour Judge Halliwell sitting as a Judge of the High Court
[2020] EWHC 1050 (Comm)
Bailii
England and Wales

Updated: 10 October 2021; Ref: scu.651162

Francis Hoff and others v Mary Atherton: ChD 2004

A challenge to testamentary capacity falls within the second exception in Spiers v English and not the first.
Nicholas Warren QC
[2004] EWHC 2007 (Ch)
England and Wales
Citing:
Cited – Re Cutliffe’s Estate CA 1958
In attacking the will, the unsuccessful defendants had pleaded undue influence as well as lack of due execution and want of knowledge and approval, but their evidence had been disbelieved. They complained that in awarding costs against them the . .

Cited by:
Appeal from – Hoff and others v Atherton CA 19-Nov-2004
Appeals were made against pronouncements for the validity of a will and against the validity of an earlier will. The solicitor drawing the will was to receive a benefit, and had requested an independent solicitor to see the testatrix and ensure that . .

Lists of cited by and citing cases may be incomplete.
Updated: 08 October 2021; Ref: scu.263528

Re Cutliffe’s Estate: CA 1958

In attacking the will, the unsuccessful defendants had pleaded undue influence as well as lack of due execution and want of knowledge and approval, but their evidence had been disbelieved. They complained that in awarding costs against them the court had not applied Spiers v English.
Held: The testator himself had not been responsible for the litigation. Morris LJ said: ‘Costs are always in the discretion of the court; but, without restricting or in any way making rigid the exercise of that discretion, the courts have given general guidance which will enable those embarking on litigation to know how, in particular cases, the discretion is likely to be exercised.’
Morris LJ, Hodson LJ
[1959] P 6, [1958] 3 All ER 642
England and Wales
Citing:
Cited – Spiers v English 1907
The two main principles which should guide the court in determining that costs in an appropriate suit are not to follow the event are firstly where the testator or those interested in the residue had been the cause of the litigation and secondly, if . .
Cited – Mitchell v Gard 1-Dec-1963
The next of kin of the deceased, who had unsuccessfully opposed the will in a testamentary suit tried before Byles J and a jury, applied for their costs to be paid out of the estate.
Held: Sir James Wilde said: ‘The basis of all rule on this . .

Cited by:
Cited – Francis Hoff and others v Mary Atherton ChD 2004
A challenge to testamentary capacity falls within the second exception in Spiers v English and not the first. . .
Cited – Kostic v Chaplin and others ChD 7-Dec-2007
The claimant had brought contentious probate proceedings, and succeeded in establishing that the deceased had not had capacity to make the will. The defendant beneficiaries appealed an order for costs.
Held: The costs of the trial itself . .

Lists of cited by and citing cases may be incomplete.
Updated: 08 October 2021; Ref: scu.263527

Mitchell v Gard: 1 Dec 1963

The next of kin of the deceased, who had unsuccessfully opposed the will in a testamentary suit tried before Byles J and a jury, applied for their costs to be paid out of the estate.
Held: Sir James Wilde said: ‘The basis of all rule on this subject should rest upon the degree of blame to be imputed to the respective parties; and the question who shall bear the costs? will be answered with this other question, whose fault was it that they were incurred? If the fault lies at the door of the testator, his testamentary papers being surrounded with confusion or uncertainty in law or fact, it is just that the costs of ascertaining his will should be defrayed by his estate.
But if the testator be not in fault, and those benefited by the will not to blame, to whom is the litigation to be attributed? In the litigation entertained by other Courts, this question is in general easily solved by the presumption that the losing party must needs be in the wrong, and, if in the wrong, the cause of a needless contest. But other considerations arise in this Court. It is the function of this Court to investigate the execution of a will and the capacity of the maker, and having done so, to ascertain and declare what is the will of the testator. If fair circumstances of doubt or suspicion arise to obscure this question, a judicial enquiry is in a manner forced upon it. Those who are instrumental in bringing about and subserving this enquiry are not wholly in the wrong, even if they do not succeed. And so it comes that this Court has been in the practice on such occasions of deviating from the common rule in other Courts, and of relieving the losing party from costs, if chargeable with no other blame than that of having failed in a suit which was justified by good and sufficient grounds for doubt.
From these considerations, the court deduces the two following rules for its future guidance: first, if the cause of litigation takes its origin in the fault of the testator or those interested in the residue, the costs may properly be paid out of the estate; secondly, if there be sufficient and reasonable ground, looking to the knowledge and means of knowledge of the opposing party, to question whether the execution of the will or the capacity of the testator, or to put forward a charge of undue influence or fraud, the losing party may properly be relieved from the costs of his successful opponent.’
Sir James Wilde
(1863) 3 Sw and Tr 275, [1863] EngR 1027, (1863) 164 ER 1280
Commonlii
England and Wales
Citing:
Appeal from – Mitchell And Mitchell v Gard And Kingwell 27-May-1862
. .

Cited by:
Cited – Kostic v Chaplin and others ChD 7-Dec-2007
The claimant had brought contentious probate proceedings, and succeeded in establishing that the deceased had not had capacity to make the will. The defendant beneficiaries appealed an order for costs.
Held: The costs of the trial itself . .
Cited – Re Cutliffe’s Estate CA 1958
In attacking the will, the unsuccessful defendants had pleaded undue influence as well as lack of due execution and want of knowledge and approval, but their evidence had been disbelieved. They complained that in awarding costs against them the . .

Lists of cited by and citing cases may be incomplete.
Updated: 08 October 2021; Ref: scu.263523

Giles v Thompson: CA 1992

The interest that the rule of champerty exists to protect (the individual interest) is that of the opposite party. Steyn LJ described contingency fee agreements as ‘nowadays perhaps the most important species of champerty’ and were ‘still unlawful’. He added that, while champerty had not ‘wither[ed] away’, its ‘scope . . has been shrunk greatly’. The correct question was whether ‘in accordance with contemporary public policy, the agreement has in fact caused the corruption of public justice. The court must consider the tendency of the agreement.’
Steyn LJ
[1993] 3 All ER 321
England and Wales
Cited by:
Appeal from – Giles v Thompson, Devlin v Baslington (Conjoined Appeals) HL 1-Jun-1993
Car hire companies who pursued actions in motorists’ names to recover the costs of hiring a replacement vehicle after an accident, from negligent drivers, were not acting in a champertous and unlawful manner. Lord Mustill said: ‘there exists in . .
Cited – De Crittenden v Bayliss CA 17-Jan-2002
The defendant appealed a judgment saying the arrangement under which the plaintiff had conducted the litigation was champertous.
Held: The appeal failed. ‘[A]lthough some of what Mr De Crittenden did could be described as ‘solicitors work’, . .
Cited – Sibthorpe and Morris v London Borough of Southwark CA 25-Jan-2011
The court was asked as to the extent to which the ancient rule against champerty prevents a solicitor agreeing to indemnify his claimant client against any liability for costs which she may incur against the defendant in the litigation in which the . .

Lists of cited by and citing cases may be incomplete.
Updated: 08 October 2021; Ref: scu.223622

Spiers v English: 1907

The two main principles which should guide the court in determining that costs in an appropriate suit are not to follow the event are firstly where the testator or those interested in the residue had been the cause of the litigation and secondly, if the circumstances lead reasonably to the investigation in regard to a propounded document. In the latter case the costs may be left to be borne by those who incurred them. In the former the costs of unsuccessfully opposing probate may be ordered to be paid out of the estate.
Sir Gorell Barnes P said: ‘In deciding questions of costs one has to go back to the principles which govern cases of this kind. One of those principles is that if a person who makes a will or persons who are interested in the residue have been really the cause of the litigation a case is made out for costs to come out of the estate. Another principle is that, if the circumstances lead reasonably to an investigation of the matter, then the costs may be left to be borne by those who have incurred them. If it were not for the application of those principles, which, if not exhaustive, are the two great principles upon which the Court acts, costs would now, according to the rule, follow the event as a matter of course. Those principles allow good cause to be shewn why costs should not follow the event. Therefore, in each case where an application is made, the Court has to consider whether the facts warrant either of those principles being brought into operation.’
Sir Gorrell Barnes P
[1907] P 122
England and Wales
Cited by:
Cited – In re Good, deceased; Carapeto v Good and Others ChD 19-Apr-2002
The normal rules as to costs contained in the CPR should also be followed in probate actions save only that the judge should also take account of the guidance in the Spiers case, where an alternative costs order might be made if the testator or . .
Cited – Kostic v Chaplin and others ChD 7-Dec-2007
The claimant had brought contentious probate proceedings, and succeeded in establishing that the deceased had not had capacity to make the will. The defendant beneficiaries appealed an order for costs.
Held: The costs of the trial itself . .
Endorsed – Re Plant deceased 1926
The court considered whether the executor should have his costs out of the estate unless he had acted unreasonably. Scrutton LJ warned: ‘I should be reluctant to do anything to create the idea that unsuccessful litigants might get their costs out of . .
Cited – Re Cutliffe’s Estate CA 1958
In attacking the will, the unsuccessful defendants had pleaded undue influence as well as lack of due execution and want of knowledge and approval, but their evidence had been disbelieved. They complained that in awarding costs against them the . .

Lists of cited by and citing cases may be incomplete.
Updated: 08 October 2021; Ref: scu.182792

Raggett v The Governors of Preston Catholic College: QBD 21 Dec 2012

Swift J
[2012] EWHC 3641 (QB)
Bailii
England and Wales

Updated: 08 October 2021; Ref: scu.470159

Ho v Adelekun: CA 19 Nov 2019

[2019] EWCA Civ 1988
Bailii
England and Wales
Cited by:
See Also – Ho v Adelekun CA 9-Apr-2020
. .
At CA – Ho v Adelekun SC 6-Oct-2021
The Court was asked whether there is jurisdiction in a personal injury claim that attracts the application of Part 44 Section II of the Civil Procedure Rules (‘CPR’), which relates to Qualified One-way Costs Shifting (‘QOCS’), to allow the set-off . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 October 2021; Ref: scu.644124

Ho v Adelekun: CA 9 Apr 2020

Lord Justice Newey
[2020] EWCA Civ 517
Bailii
England and Wales
Citing:
See Also – Ho v Adelekun CA 19-Nov-2019
. .

Cited by:
Appeal from – Ho v Adelekun SC 6-Oct-2021
The Court was asked whether there is jurisdiction in a personal injury claim that attracts the application of Part 44 Section II of the Civil Procedure Rules (‘CPR’), which relates to Qualified One-way Costs Shifting (‘QOCS’), to allow the set-off . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 October 2021; Ref: scu.650009

Ho v Adelekun: SC 6 Oct 2021

The Court was asked whether there is jurisdiction in a personal injury claim that attracts the application of Part 44 Section II of the Civil Procedure Rules (‘CPR’), which relates to Qualified One-way Costs Shifting (‘QOCS’), to allow the set-off of an order for costs made against the Claimant against an order for costs made in the Claimant’s favour.
Lord Briggs, Lady Arden, Lord Kitchin, Lord Burrows, Lady Rose
[2021] UKSC 43
Bailii, Bailii Press Summary, Bailii Issues and Facts
England and Wales
Citing:
At CA – Ho v Adelekun CA 19-Nov-2019
. .
Appeal from – Ho v Adelekun CA 9-Apr-2020
. .

Lists of cited by and citing cases may be incomplete.
Updated: 07 October 2021; Ref: scu.668365

Pavledes and Another v Hadjisavva and Another: ChD 31 Jan 2013

Costs after settlement of right of light action.
David Richards J
[2013] EWHC 124 (Ch)
Bailii
England and Wales

Updated: 01 October 2021; Ref: scu.470704