Category: Costs

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 Council Code of Practice.
Held: A barrister must not draft a pleading containing an allegation of fraud unless he has clear instructions to make such allegation and has before him reasonably credible material which, as it stands, establishes a prima facie case of fraud. There was no bar to a party asking for a wasted costs order against opposing counsel. There was no bar to an action in respect of acts outside the strict scope of courtroom advocacy. Nevertheless, fairness must be allowed. There was a risk here of the barristers being unable to defend themselves without being able to produce material protected by their clients’ legal professional privilege. The clients did not release that privilege, and so a court order could not safely be made.
Lord Bingham said: ‘ Paragraph 606(c) (of the Bar Code of Conduct) lays down an important and salutary principle. The parties to contested actions are often at daggers drawn, and the litigious process serves to exacerbate the hostility between them. Such clients are only too ready to make allegations of the most damaging kind against each other. While counsel should never lend his name to such allegations unless instructed to do so, the receipt of instructions is not of itself enough. Counsel is bound to exercise an objective professional judgment whether it is in all the circumstances proper to lend his name to the allegation. As the rule recognises, counsel could not properly judge it proper to make such an allegation unless he had material before him which the judged to be reasonably credible and which appeared to justify the allegation. At the hearing stage, counsel cannot properly make or persist in an allegation which is unsupported by admissible evidence, since if there is not admissible evidence to support the allegation the court cannot be invited to find that it has been proved, and if the court cannot be invited to find that the allegation has been proved the allegation should not be made or should be withdrawn. I would however agree with Wilson J that at the preparatory stage the requirement is not that counsel should necessarily have before him evidence in admissible form but that he should have material of such a character as to lead responsible counsel to conclude that serious allegations could properly be based upon it.’
Lord Steyn said: ‘ This particular professional duty sometimes poses difficult problems for practitioners. Making allegations of dishonesty without adequate grounds for doing so may be improper conduct. Not making allegation of dishonesty where it is proper to make such allegations may amount to dereliction of duty. The barrister must promote and protect fearlessly and by all proper and lawful means his lay clients interests: paragraph 203 of the Code of Conduct. Often the decision will depend on circumstantial evidence. It may sometimes be finely balanced. What the decision should be may be a difficult matter of judgment on which reasonable minds may differ.’

Judges:

Lord Bingham of Cornhill, Lord Steyn, Lord Hoffmann, Lord Hobhouse of Woodborough and Lord Rodger of Earlsferry

Citations:

Times 28-Jun-2002, Gazette 08-Aug-2002, [2002] UKHL 27, [2002] 3 All ER 731, [2003] 1 AC 120, [2002] NPC 89, [2002] PNLR 43, [2002] 3 WLR 172, [2002] CP Rep 70, [2002] CPLR 647, [2002] 3 Costs LR 428

Links:

House of Lords, Bailii

Statutes:

Supreme Court 1981 51(6)(7) 51(6)(13), Courts and Legal Services Act 1990 4, Bar Code of Conduct 606

Jurisdiction:

England and Wales

Citing:

Approved – 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 . .
Appeal from – Medcalf v Mardell and Others CA 24-Nov-2000
Counsel who wished to insert an allegation of fraudulent activity, or similar, into an application to amend a notice of appeal, must be sure not only that they have the clear and direct instructions of the clients to do this, but also that they . .
Cited – 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 . .
See Also – Medcalf v Mardell and others CA 2-Mar-2000
. .

Cited by:

Cited – Fitzhugh Gates (A Firm) v Claudia Louise Elaine Borden Sherman CA 1-Jul-2003
The firm of solicitors challenged a wasted costs order. The order had been made on the basis that they had persisted with a case which the court had told them was misconceived, and had acted despite a conflict of interest. The order had been made . .
Cited – Gleaner Company Ltd and Another v Abrahams PC 14-Jul-2003
Punitive Defamation Damages Order Sustained
(Jamaica) The appellants challenged a substantial award of damages for defamation. They had wrongfully accused a government minister of corruption. There was evidence of substantial financial loss. ‘For nearly sixteen years the defendants, with all . .
Cited – Hussain and Another v Sarkar and Another CA 29-Jan-2010
The claimant sought damages saying that in a traffic accident, the first defendant driver had driven into the rear of their car. The second defendant asked for permission to amend its peading to allege fraud, that the accident had been staged, but . .
Cited – Abbar and Another v Saudi Economic and Development Company (Sedco) Real Estate Ltd and Others ChD 5-Aug-2010
The defendant sought a strike out of the claim in fraud, saying it was an abuse of process, saying that the facts as pleaded were consistent with honest dealing. The claimants said they had been induced to purchase shares.
Held: The request . .
Cited – Jones v Kaney SC 30-Mar-2011
An expert witness admitted signing a joint report but without agreeing to it. The claimant who had lost his case now pursued her in negligence. The claimant appealed against a finding that the expert witness was immune from action.
Held: The . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs, Litigation Practice

Updated: 27 June 2022; Ref: scu.174122

Harris v Wallis: ChD 10 Mar 2006

The claimant sought his profit share from a partnership. The defendant complained that the claimant had for some time put his assets beyond reach, and obtained an order for security for costs. The claimant now appealed.
Held: The appeal failed. It was not necessary for a defendant in such an action to show that the claimant had taken this action with the intention of avoiding any enforcement.

Judges:

Sir Francis Ferris

Citations:

Times 12-May-2006

Statutes:

Civil Procedure Rules 25.13

Jurisdiction:

England and Wales

Citing:

Cited – Aoun v Bahri and Another ComC 6-Feb-2002
Application for security for costs against the claimant. . .
Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules, Costs

Updated: 27 June 2022; Ref: scu.242643

Molloy v Shell UK Ltd: CA 6 Jul 2001

Liability had been conceded by the defendant in the personal injury claim, but the defendant now appealed against the order that it should recover only 75% of its costs incurred after the date of a Part 36 payment made by it. The claimant claimed some andpound;68,000 for past losses and some andpound;232,000 for future loss of earnings from his employment working on the oil rigs. But a few days before the trial the defendant discovered that the claimant had indeed returned to work as scaffolder on the oil platforms some 3 years previously.
Held: Laws LJ said that it was ‘entirely plain that the claim had been grossly and deliberately exaggerated by him’, and ‘his particulars of claim were spectacularly dishonest.’ The claimant did not better the payment into court but even if that was wrong there was only one way in which the judge’s discretion as to costs could properly have been exercised and that was to award the defendant its costs. He added obiter: ‘The judge was obliged by Part 44.3(5) as I have said, to consider the whole of the party’s conduct. It does appear that he may have considered the respondent’s conduct only after the date of the Part 36 payment. If that is so he fell into error. At least since the particulars of claim filed on 20th September 1999 and until he was found out the respondent’s approach to this action has been nothing short of a cynical and dishonest abuse of the court’s process. For my part I entertain considerable qualms as to whether, faced with the manipulation of the civil justice system on so grand a scale, the court should once it knows the facts, entertain the case at all save to make the dishonest claimant pay the defendant’s costs.’

Judges:

Mummery LJ, Laws LJ

Citations:

[2001] EWCA Civ 1272, [2002] PIQR P7

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Widlake v BAA Ltd CA 23-Nov-2009
The claimant had succeeded in her action for personal injuries, but now appealed against the awarding of costs to the defendant. The dispute had been substantialy as to the nature and effect of her injuries. She had not disclosed earlier injury to . .
Lists of cited by and citing cases may be incomplete.

Costs, Personal Injury

Updated: 27 June 2022; Ref: scu.218330

Glencore International Ag v Metro Trading International Inc and others: CA 31 Jul 2002

Claimant’s application for security for costs of defendant’s cross cross appeal.

Judges:

Tuckey LJ

Citations:

[2002] EWCA Civ 1252

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Glencore International AG v Metro Trading International Inc and others ComC 1-Aug-2001
Under English conflicts of laws rules the transfer of title to movable property is governed by the law of the place where the property is situated.
Moore-Bick J commented obiter on a dictum of Millett J in Macmillan: ‘However, if the lex situs . .
Lists of cited by and citing cases may be incomplete.

Company, Costs

Updated: 23 June 2022; Ref: scu.217404

Wulfsohn, Regina (on the Application of) v Legal Service Commission: CA 8 Feb 2002

The claimant appealed against a costs award made to him when acting as a litigant in person.
Held: The appeal was allowed. A litigant in person may be able to claim for the costs of his research, subject to the cap in the rules.
Schiemann LJ said: ‘If one reads together 48.6(2) and (4) one sees that, in principle, a litigant in person is entitled to compensation for his time, and the rate is fixed by Statutory Instrument and at all relevant times was andpound;9.25 per hour. But there is a cap which is that however long a litigant spends in person doing things he cannot recover more than, broadly speaking, two-thirds of what his legal representatives would have done if he had had a lawyer.’

Judges:

Schiemann LJ, Rix LJ

Citations:

[2002] EWHC 9025 (Costs), [2002] EWCA Civ 250, [2002] CP Rep 34, [2002] 3 Costs LR 341

Links:

Bailii, Bailii

Statutes:

Civil Procedure Rules 48.6

Jurisdiction:

England and Wales

Citing:

Application for leave – Wulfsohn, Regina (on the Application of) v Legal Services Commission CA 31-Aug-2001
Mr Wulfsohn sought (and was granted) leave to appeal against an assessment of the costs payable to him as a successful litigant in person. . .
Lists of cited by and citing cases may be incomplete.

Costs, Civil Procedure Rules

Updated: 23 June 2022; Ref: scu.216873

Pine v Law Society: CA 20 Feb 2002

The solicitor had succeeded in his challenge to the respondent’s disciplinary procedures, and the Society now accepted its liability to pay his costs, but asserted that there must be a set-off for that sum against sums it said were otherwise due to it from the solicitor.

Citations:

[2002] EWCA Civ 371

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See also – Pine v Law Society (1) Admn 13-Dec-2000
The court considered the independence of the Law Society’s disciplinary tribunal: ‘Standing back, and bearing in mind the statutory scheme for the Disciplinary Tribunal, I see no reason to doubt its independence or impartiality. It is independent of . .
See also – Pine v Law Society CA 25-Oct-2001
The applicant said the procedure under which he was struck from the roll of solicitors was unfair. There was no provision for legal advice or representation, and given the nature and severity of the allegations and consequences, the trial was . .

Cited by:

See Also – Pine v Law Society CA 20-Feb-2002
The applicant was a solicitor. The Respondent intervened in his practice, and a solicitor agent took it over. The agent submitted its accounts for payment by the Society and the applicant, who then sought to challenge the accounts under the Act. The . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 23 June 2022; Ref: scu.216832

Glencore International Ag v Metro Trading International Inc Credit Lyonnais (France) Sa and others: CA 6 Feb 2002

Application for leave to appeal against costs order.

Judges:

Potter, Kay LJJ

Citations:

[2002] EWCA Civ 138

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal – Glencore International AG v Metro Trading International Inc and others ComC 1-Aug-2001
Under English conflicts of laws rules the transfer of title to movable property is governed by the law of the place where the property is situated.
Moore-Bick J commented obiter on a dictum of Millett J in Macmillan: ‘However, if the lex situs . .
Lists of cited by and citing cases may be incomplete.

International, Costs

Updated: 23 June 2022; Ref: scu.216786

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 etc: ChD 20 Oct 2004

Judges:

Mr Justice Smith

Citations:

[2004] EWHC 2329 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Phillips and Another v Robin James Symes and Robin Symes Ltd ChD 9-Jul-2001
English proceedings were issued to claim against a partnership. Simultaneously proceedings were issued in Greece, but the Greek proceedings were served on the London parties first. The plaintiffs in Greece asked the English court to issue a stay of . .
See Also – Phillips v Symes CA 2003
Courts should be reluctant to exclude altogether evidence merely because it is written. If the purpose of the order sought was to trace assets it would be wrong to permit cross-examination which was designed to show that there had been a contempt of . .
See Also – Phillips, Harland (Administrators of the Estate of Michailidis), Papadimitriou; Symes (A Bankrupt), Robin Symes Limited (In Administrative Receivership), Domercq etc ChD 30-Jul-2004
Under the Ciivil Procedure Rules, experts have acquired greater responsibilities to the court. Those responsibilities transcend their perceived obligations to the parties whom they give evidence. . .
See Also – 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 Z 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 in costs.
Peter Smith J had held that: ‘It seems to me that in the administration . .

Cited by:

See Also – Symes v Phillips and others CA 6-May-2005
. .
See Also – Symes v Phillips and others CA 19-May-2005
The applicant was in contempt of court. He successfully appealed a sentence of two years imprisonment, with the sentence being reduced to one year. Legally aided, he sought his costs from the claimant. The claimant replied that their part was only . .
See Also – Phillips, Harland (Suing As Administrators of the Estate of Christo Michailidis) v Symes (A Bankrupt), Nussberger, Galerie Nefer Ag, Geoff Rowley ChD 19-Aug-2005
The court allowed the appellant’s application to dispense with service of a claim form under the rule. The High Court became seised of the matter as at 19 January 2005. Further directions were given. . .
See Also – Phillips and others v Symes and others ChD 12-Jul-2006
. .
See Also – Phillips and Another v Symes and Others (No 6) CA 19-May-2006
Proceedings were issued in England for service on the defendant in Switzerland, but because of an error by the Swiss Court were not properly served. Proceedings were then issued in Sitzerland, and seisin was claimed for the Swiss Court. The claimant . .
See Also – Phillips and others v Symes and others ChD 16-Oct-2006
. .
See Also – Phillips and Another v Symes and others HL 23-Jan-2008
Various parties had sought relief in the English courts and in Switzerland after an alleged fraud. There had been a mistake in service of the proceedings in England. The high court had dispensed with service an backdated the effect of the order to . .
Lists of cited by and citing cases may be incomplete.

Costs

Updated: 23 June 2022; Ref: scu.216630

Abu v MGN Ltd: SCCO 19 Jul 2004

Citations:

[2004] EWHC 90017 (Costs)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Abu v MGN Ltd QBD 2003
There should be nothing in any sense ‘rough and ready’ about the assessment of the claimant’s reputation under the offer of amends procedure in the 1996 Act. If compensation is not agreed it should be determined by the court on the same principles . .
Lists of cited by and citing cases may be incomplete.

Costs

Updated: 23 June 2022; Ref: scu.216453

BAE Systems Pension Funds Trustees Ltd v Bowmer and Kirkland Ltd: TCC 23 Feb 2018

Application pursuant to CPR Part 38.6, which provides that, unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant, against whom the claimant discontinues, incurred on or before the date on which the notice of discontinuance was served on the defendant.

Citations:

[2018] EWHC 1222 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Costs

Updated: 23 June 2022; Ref: scu.630542

IPC Media Ltd v Highbury Leisure Publishing Ltd: ChD 2005

Judges:

Laddie J

Citations:

[2005] EWHC 283 (Ch)

Jurisdiction:

England and Wales

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Costs

Updated: 23 June 2022; Ref: scu.240385

Sayers v Clarke Walker (A Firm): CA 10 Jul 2002

Citations:

[2002] EWCA Civ 1110, [2002] 1 WLR 3095

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Sayers v Clarke Walker (A firm) CA 14-May-2002
In a case of any complexity, when an appeal court considered an application for leave to appeal which was filed out of time, it should have in mind the matters listed in the rules. It was not appropriate to use judge made checklists where one was . .
See Also – Sayers v Clarke Walker (A Firm) CA 26-Jun-2002
. .

Cited by:

See Also – Sayers v Clarke Walker (A Firm) CA 26-Jun-2002
. .
See Also – Sayers v Clarke Walker (A firm) CA 14-May-2002
In a case of any complexity, when an appeal court considered an application for leave to appeal which was filed out of time, it should have in mind the matters listed in the rules. It was not appropriate to use judge made checklists where one was . .
Cited – Floyd and Another v Legal Services Commission QBD 28-Apr-2010
The claimant had succeeded in an action against her legally aided opponent, but then delayed in making her claim for costs against the respondent. The costs judge said that the CPR did not apply, and that he had no discretion to extend the time . .
Lists of cited by and citing cases may be incomplete.

Costs, Legal Aid

Updated: 21 June 2022; Ref: scu.217479

Sonia Burkett, Regina (on the Application of) v London Borough of Hammersmith and Fulham: CA 15 Oct 2004

The appellant challenged an order for costs after dismissal of her application for judicial review of the respondent’s planning decision. The claimant had been granted legal aid at about the time of the bringing in of the new legal aid scheme. The two regimes differed as to the limits applied to sums recoverable from the Legal Service Commission. The judge made an order for assessment of the council’s costs of the substantive hearing and directed that they should be set off against the claimant’s costs of the permission application.
Held: The appeal was not to be allowed, and the authority could set off its claim. Though an order had been made in favour of the claimant at one stage, the defendants could set off the later order. The result was noted by the court as disturbing because of the adverse effect it might have on an already unprofitable area of practice.

Judges:

Lord Justice Brooke Lord Justice Buxton Lord Justice Carnwath The Vice President Of The Court Of Appeal (Civil Division)

Citations:

[2004] EWCA Civ 1342, Times 20-Oct-2004

Links:

Bailii

Statutes:

Community Legal Services (Costs) Regulations 2000

Jurisdiction:

England and Wales

Citing:

Cited – Lockley v National Blood Transfusion Service CA 1992
There was an interlocutory dispute over the granting of an extension of time for service of the defence. The legally aided plaintiff challenged the costs orders made by the district registrar and the judge. Each ordered that the costs be the . .
Cited – Re A Debtor CA 9-Feb-1981
The husband opposed assisted proceedings brought by his wife, in which he was ordered to pay a sum of costs. He did not pay, and the Law Society brought proceedings against him for their recovery. He sought to set-off against that claim a debt . .
Cited – Barker v Hemming 1880
. .
Cited – Edwards v Hope CA 1885
Set off of costs against damages award. . .
Cited – Blakey v Latham 1889
The court considered its power to award of set-off as between the costs in an action and the award of damages to the other party. ‘How can any solicitor possibly have an equity against B to make B pay costs which B is ordered to pay to A when B . .
Cited – Anderson v Hills Automobiles (Woodford) Ltd 1965
. .
Cited – Goodfellow v Gray 1899
A right of set-off could be allowed against damages due on a judgment in another action. . .
Cited – Reid v Cupper 1915
A judge was entitled to make an order setting off one party’s costs in an action against the other party’s costs in a different action by reliance not on the language of Order LXV r 14, but on the old discretionary practice of the courts. The court . .
Cited – David v Rees 1904
. .
Cited – Izzo v Philip Ross and Co (a Firm) ChD 31-Jul-2001
Whilst litigants in person should be allowed the assistance of a McKenzie friend, the duties of the friend should not normally include representation and advocacy. Nevertheless, each case should be viewed separately, and applications for permission . .
Cited – Hanak v Green CA 1958
A builder was sued for his failure to complete the works he had contracted for. The buider sought a set-off against that claim of three of his one claims. One, under the contract, was for losses from the defendant’s refusal to allow his workmen . .
Cited – In re A Debtor 1951
. .
Cited – In re a Bankruptcy Notice CA 1934
. .
Cited – Knight v Knight 1925
. .
Cited – Puddephatt v Leith (No 2) 1916
. .
Cited – Federal Commerce Ltd v Molena Alpha Inc; (The ‘Nanfri’) CA 1978
The court considered whether claim as against a shipowner could be set off against sums due under a time charter hire.
Held: Save for any contractual provision to the contrary a tenant is entitled to deduct from the rent payable, so as to . .
Cited – Hill v Bailey ChD 25-Nov-2003
Costs orders had been made against each party in favour of the other. One was legally aided.
Held: Though the legally aided party was entitled to some protection against enforcement of an order for costs, he was not protected against the other . .
Cited – National Westminster Bank plc v Skelton (Note) 1993
The court distinguished a claim by the mortgagee for possession from a claim on the mortgagor’s personal covenant to pay what was due. A claim for a set-off is merely a sub-species of counterclaim. The court will not readily imply a term into a . .
Cited – Smith v Muscat CA 10-Jul-2003
The tenant was sued by his landlord for arrears of rent, but sought an equitable set-off for damages for disrepair accruing under the previous landlord.
Held: If the entitlement to recover arrears of rent passes from assignor to assignee, and . .
Cited – Hicks v Russell Jones and Walker 27-Oct-2000
. .
Per Incuriam – Carr v Boxall 1960
. .

Cited by:

Cited – Waltham Forest v Maloba, The Law Society CA 4-Dec-2007
The applicant had been refused accomodation as homeless after disclosing the ownership of a family home in Uganda. He had lived and worked in the UK for 15 years. The authority did not accept that it had later been repossessed. The council now . .
Lists of cited by and citing cases may be incomplete.

Costs, Legal Aid

Updated: 21 June 2022; Ref: scu.216442

Thomas v The Financial Services Authority: FSMT 22 Sep 2004

FSMT REASONS FOR DIRECTIONS – application for a costs order in respect of the previous hearing – allowed in part application for a direction that certain questions be detennined at a preliminary hearing – allowed in part application for directions requiring the Respondent to provide further infonnation and to file further documents and for associated directions – dismissed – Financial Services and Markets Act 2000 Sch 13 para 13 – Financial Services and Markets Tribunal Rules 2001 SI2001 No. 2476 Rules 10(1)(/) and (g); 13(1); and 21

Citations:

[2004] UKFSM FSM010

Links:

Bailii

Financial Services, Costs

Updated: 21 June 2022; Ref: scu.214780

Acciaierie San Michele Spa (In Liquidation) v High Authority Of The ECSC: ECJ 22 Feb 1968

Citations:

[1968] EUECJ C-58/65

Links:

Bailii

Citing:

Cited – Acciaierie San Michele SpA (in liquidation) v High Authority of the ECSC (Judgment) ECJ 2-Mar-1967
ECJ 1. Liability of the ECSC – financial arrangements – equalization – normal disadvantages – absence of harm 2. Common financial arrangements – equalization of ferrous scrap – calculation of contributions – . .
Lists of cited by and citing cases may be incomplete.

European, Costs

Updated: 21 June 2022; Ref: scu.214048

Cantor Fitzgerald International (formerly Cantor Fitzgerald (UK) Ltd) and Another v Tradition (UK) Ltd and Others (No 2): ChD 31 Jul 2003

The costs order required payment of the claimants’ costs. The court ordered costs to be payable only for certain stages of the case, and in particular that the appellants should pay the respondents costs of the trial commencing on a specified date. The respondents now sought recovery of brief fees for the trial.
Held: The court had to interpret ‘costs of the trial’. That might normally include the brief fee, but it had to be seen in the particular circumstances. Where brief fees were paid prior to trial they became costs incurred as and when they were paid and would be assessed on that basis.

Judges:

Patten J

Citations:

Times 11-Sep-2003, Gazette 16-Oct-2003

Jurisdiction:

England and Wales

Citing:

Cited – Loveday v Renton (No 2) 1992
A brief fee might include work done during the course of a trial. The appropriateness of the approach and the need for elements to be calculated according to the value at stake and the hourly expense rate are to be calculated realistically. . .
Lists of cited by and citing cases may be incomplete.

Costs, Legal Professions

Updated: 21 June 2022; Ref: scu.186114

GlaxoSmithKline Export Ltd v UK (Aid) Ltd: ChD 15 May 2003

The ordinary principle that costs followed the event in contested winding up proceedings where the petition was unsuccessful was subject to exceptions. Here, the company had launched the winding up proceedings in full knowledge of the facts which would be asserted by the company in its defence. It had adopted a high risk strategy. Applying Fernforest, no exceptional circumstances existed in this case.

Judges:

Blackburne

Citations:

Times 05-Jun-2003, Gazette 10-Jul-2003

Jurisdiction:

England and Wales

Citing:

Cited – In re Fernforest Ltd 1990
. .
Lists of cited by and citing cases may be incomplete.

Costs, Insolvency

Updated: 21 June 2022; Ref: scu.183356

Individual Homes Ltd v Macbream Investments Ltd: ChD 23 Oct 2002

The claimant had in the course of proceedings obtained an order requiring an employee of the third party to attend as a witness. That third party now sought to be joined so as to claim its costs.
Held: The Act and the rules allowed the court to make an order for costs against a party in favour of a third party. The claimant should pay their reasonable costs.

Judges:

Alan Steinfeld QC

Citations:

Times 14-Nov-2002, Gazette 28-Nov-2002

Statutes:

Supreme Court Act 1981 51, Civil Procedure Rules 48.2

Jurisdiction:

England and Wales

Citing:

Cited – Aiden Shipping Co Ltd v Interbulk Ltd (The ‘Vimeira’) HL 1986
Wide Application of Costs Against Third Party
A claim had been made against charterers by the ship owners, and in turn by the charterers against their sub-charterers. Notice of motion were issued after arbitration awards were not accepted. When heard, costs awards were made, which were now . .
Lists of cited by and citing cases may be incomplete.

Costs, Civil Procedure Rules

Updated: 21 June 2022; Ref: scu.178143

Lloyds Bank Ltd v Eastwood: ChD 1965

Citations:

[1965] 1 Ch 112

Jurisdiction:

England and Wales

Cited by:

Cited – Maes Finance Ltd and Another v W G Edwards and Partners and Another (2) SCCO 11-Feb-2000
. .
Cited – Maes Finance Ltd and Another v W G Edwards and Partners and Another (1) SCCO 11-Feb-2000
The judge was asked to consider whether the principles in Eastwood were now out of date with regards to the relative costs of employing in house solicitors, as against an outside firm.
Held: The principles in Eastwood still held, and were . .
Lists of cited by and citing cases may be incomplete.

Costs

Updated: 21 June 2022; Ref: scu.180046

Willers v Joyce and Others: ChD 12 Apr 2019

Application to determine the admissibility of evidence on which the applicant executors wish to rely in an application for costs against the respondents under s.51 of the Senior Courts Act 1981. The Contested Material comprises references made in the course of inter-solicitor correspondence marked ‘Without Prejudice Save As to Costs’ to what was said and done in the course of settlement discussions at and shortly after a mediation which were agreed at the time to be ‘Without Prejudice’.

Judges:

Andrews DBE J

Citations:

[2019] EWHC 937 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Willers v Joyce and Another (Re: Gubay (Deceased) No 1) SC 20-Jul-2016
Parties had been involved in an action for wrongful trading. This was not persisted with but the claimant sought damages saying that the action was only part of a campaign to do him harm. This appeal raised the question whether the tort of malicious . .
Lists of cited by and citing cases may be incomplete.

Costs, Litigation Practice

Updated: 21 June 2022; Ref: scu.636140

Parke v Butler: QBD 26 May 2016

The court was asked: ‘In a case where a claimant has the benefit of Qualified One Way Costs Shifting (QOCS) at trial, is he subject to the ordinary rules as to costs on a first appeal to an appeal court at least where no other order is made under CPR 52.9A?’

Judges:

Edis J

Citations:

[2016] EWHC 1251 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Costs

Updated: 19 June 2022; Ref: scu.564926

Milanese v Leyton Orient Football Club Ltd (Costs): QBD 26 May 2016

Costs following dismissal of claim.

Judges:

Whipple L

Citations:

[2016] EWHC 1263 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Milanese v Leyton Orient Football Club Ltd QBD 26-May-2016
The claimant sought damages alleging his wrongful dismissal as director of the defendant football club. . .
Lists of cited by and citing cases may be incomplete.

Employment, Costs

Updated: 19 June 2022; Ref: scu.564925

Byrne v Sefton Health Authority: CA 22 Nov 2001

There was no power to make an order for wasted costs against a solicitor who had not been acting in a matter when proceedings were issued. Delays eventually led to the dismissal of a medical negligence case for limitation. The defendant authority sought their lost costs against the firm. The true test was whether the behaviour complained of was a cause of the unnecessary incurring of costs. A ‘but for’ test was insufficient.

Judges:

Lord Justice Peter Gibson, Lord Justice Chadwick and Lord Justice Longmore

Citations:

Times 28-Nov-2001, Gazette 04-Jan-2002

Statutes:

Supreme Court Act 1981 51(6)

Jurisdiction:

England and Wales

Citing:

Distinguished – Brown and Another v Bennett and Others (No 2) ChD 16-Nov-2001
The power to make a wasted costs order did not apply only against advocates in court, and not only against the applicant’s own representatives. The test was as to the causing of additional costs. In this case several barristers had been involved at . .
Lists of cited by and citing cases may be incomplete.

Costs, Legal Professions

Updated: 18 June 2022; Ref: scu.166876

Jobson v Record and Another: CA 17 Aug 2005

The appellant sought permission to appeal out of time against a costs order. The claimant said he had submitted a notice of appeal, but the court had no trace of it, and the cheque had not been encashed.
Held: Looking at the merits of the appeal, the argument now sought to be used had been available at the trial. The appeal had no prospect of success and leave was refused.

Citations:

[2005] EWCA Civ 1099

Links:

Bailii

Statutes:

Civil Procedure Rules 44.3(1)

Jurisdiction:

England and Wales

Costs

Updated: 18 June 2022; Ref: scu.229864

Barrie v Caledonian Railway Co: HL 20 Mar 1903

Appeal to House of Lords – Competency – Appeal on Question of Expenses only.
An appeal to the House of Lords on the question of expenses only is not competent.

Judges:

Lord Macnaghten, Lord Shand, Lord Davey, Lord Robertson, and Lord Lindley

Citations:

[1903] UKHL 600, 40 SLR 600

Links:

Bailii

Jurisdiction:

Scotland

Costs

Updated: 17 June 2022; Ref: scu.630575

Herbert v H H Law Ltd: CA 3 Apr 2019

‘This appeal raises two principal issues of general importance in relation to a detailed assessment of solicitor and client costs pursuant to the Solicitors Act 1984 s.70 and CPR 46.9. The first issue concerns the proper meaning and application of CPR 46.9(3) as regards a success fee of 100% under a Conditional Fee Agreement (‘the CFA’), which has been fixed at that level without any regard to the risk of failure of the claim. The second issue is whether the cost of the premium for an After The Event (‘ATE’) insurance policy was properly to be treated as a solicitor’s disbursement or merely an entry in the client account.’

Judges:

Sir Terence Etherton MR

Citations:

[2019] EWCA Civ 527

Links:

Bailii

Jurisdiction:

England and Wales

Legal Professions, Costs

Updated: 14 June 2022; Ref: scu.635249

Khaira and Others v Shergill and Others: CA 27 Oct 2017

‘This appeal raises technical but important issues on the entitlement of a party who is awarded the costs of an interlocutory appeal to an immediate assessment of those costs. Two issues of general application arise. First, is the party entitled to an immediate assessment without the need for an express order to that effect? Secondly, if not and if the appellate court has not made an order for an immediate assessment, does a costs judge have jurisdiction to make such an order? A third issue is whether an order of the Supreme Court made in this case entitled the respondents to this appeal to an immediate assessment of their costs in the Court of Appeal.’

Judges:

Lloyd-Jones L, David Richards, Moylan LJJ

Citations:

[2017] EWCA Civ 1687

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Khaira and Others v Shergill and Others CA 17-Jul-2012
The parties disputed the trusteeship and governance of two Gurdwaras (Sikh temples). The defendants now applied for the claim to be struck out on the basis that the differences were as to Sikh doctrines and practice and as such were unjusticiable. . .
See Also – Shergill v Khaira and Others CA 2-Oct-2012
. .
At SC – Shergill and Others v Khaira and Others SC 11-Jun-2014
The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .
See Also – Khaira and Others v Shergill and Others ChD 23-Mar-2016
. .
See Also – Shergill and Others v Khaira and Others ChD 3-Mar-2017
The court considered the identification of one of the ancient Sikh gurus in order to ascertain the rights of current gurdwaras . .
Lists of cited by and citing cases may be incomplete.

Costs

Updated: 14 June 2022; Ref: scu.598466

Shergill v Khaira and Others: CA 2 Oct 2012

Judges:

Mummery, Pitchford, Hooper LJJ

Citations:

[2012] EWCA Civ 1582

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Main Judgment – Khaira and Others v Shergill and Others CA 17-Jul-2012
The parties disputed the trusteeship and governance of two Gurdwaras (Sikh temples). The defendants now applied for the claim to be struck out on the basis that the differences were as to Sikh doctrines and practice and as such were unjusticiable. . .

Cited by:

See Also – Khaira and Others v Shergill and Others ChD 23-Mar-2016
. .
See Also – Shergill and Others v Khaira and Others ChD 3-Mar-2017
The court considered the identification of one of the ancient Sikh gurus in order to ascertain the rights of current gurdwaras . .
See Also – Khaira and Others v Shergill and Others CA 27-Oct-2017
‘This appeal raises technical but important issues on the entitlement of a party who is awarded the costs of an interlocutory appeal to an immediate assessment of those costs. Two issues of general application arise. First, is the party entitled to . .
Lists of cited by and citing cases may be incomplete.

Costs

Updated: 14 June 2022; Ref: scu.470106

HM Customs and Excise v City of London Magistrates’ Court and Others: Admn 17 May 2000

HMCE appealed by case stated from an order for costs made against it. It had applied for orders for access to three banks and a public limited company. On the orders being made, the court allowed costs against HMCE for the third parties involved, under the 1985 Act and 1986 Regulations. HMCE said that the applications were not criminal in nature, and that therefore the Magistrate had not had the power to make the order for costs.
Held: The application was not a criminal proceeding: ‘ Even if it be accepted that it was a proceeding, it is in my judgment quite plain that it was not a criminal proceeding for the reasons given by the Customs. Although the respondents were suspected of criminal offences, no formal accusation had been made against any of them on behalf of the state or any private prosecutor and there were no proceedings in being which could have led to the conviction of the respondents of any breach of the criminal law or to their condemnation. In my judgment the only answer which can be given to the question posed is ‘No’.’

Judges:

Lord Bingham of Cornhill LCJ, Morison J

Citations:

[2000] EWHC 653 (Admin), [2000] Crim LR 841, [2000] 1 WLR 2020, [2000] 4 All ER 763, [2000] 2 Cr App Rep 348, [2000] STC 447, [2000] 2 Cr App R 348, [2000] BTC 5194, [2000] STI 782, [2000] BVC 224

Links:

Bailii

Statutes:

Prosecution of Offences Act 1985 19, Costs in Criminal Cases (General) Regulations 1986 3

Jurisdiction:

England and Wales

Costs

Updated: 14 June 2022; Ref: scu.426521

Oko-Jaja v Lewisham Borough of Lewisham: EAT 8 May 2001

The applicant had complained of disability discrimination, and failed. He had been ordered to pay a sum towards the costs of the respondent. He appealed that order. He had previously issued a complaint, and lost that complaint, being warned then of the possibility of such an order. This second complaint was of victimisation, but the decision makers knew nothing of his first complaint. His complaint was dismissed. The tribunal recognised the unreasonableness of his complaint, and the substantial cost to the respondent, and awarded pounds 250 costs. The respondent cross appealed, saying that the award should not have been so limited.
Held: In making that decision the tribunal had taken into account a suggestion that the appellant had had all relevant evidence available to him from an early stage. The nature of victimisation complaints is that they are difficult to prove, and it may often be proper for a complainant to rely upon the hope of cross examination.
EAT Procedural Issues – Employment Tribunal.

Judges:

Mrs Recorder Cox QC

Citations:

EAT/417/00, [2001] UKEAT 417 – 00 – 0805

Links:

Bailii, EAT

Statutes:

Employment Tribunals Constitution and Procedure Regulations 1993 Sch 1 r 12

Jurisdiction:

England and Wales

Citing:

Cited – M J Benyon and others v David Scadden and others EAT 14-Jun-1999
The tribunal had found that the claimants and their union had pursued their case, even though they recognised the weakness of the case, with the additional intention of persuading their employer to recognise their union, UNISON. Such behaviour was . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment, Costs

Updated: 14 June 2022; Ref: scu.203899

North British Railway Co v Magistrates of Edinburgh: HL 24 Feb 1921

In an action against the magistrates of a burgh for relief from certain burdens and for recovery of sums paid, the First Division on 12th March 1920 granted the decree of declarator craved and remitted the cause to the Lord Ordinary to dispose of the petitory conclusions of the summons. Leave to appeal was granted. No appeal having been presented, the pursuers (after notice to the defenders, who did not appear) obtained decree from the Lord Ordinary for the sum sued for with expenses. Both the principal sum and the pursuers’ expenses as taxed were thereafter paid by the defenders. On 24th February 1921 the defenders presented a petition and appeal against the interlocutor of 12th March 1920.
The Committee dismissed the appeal as incompetent.

Judges:

Viscount Cave, Lords Dunedin, Atkinson, Shaw, and Moulton

Citations:

[1921] UKHL 434, 58 SLR 434

Links:

Bailii

Jurisdiction:

Scotland

Costs

Updated: 13 June 2022; Ref: scu.632628

Papera Traders Co Ltd and others v Hyundai Merchant Marine Co Ltd. and Another: SCCO 17 Sep 2003

Citations:

[2003] EWHC 9018 (Costs)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Papera Traders Co Ltd and others v Hyundai Merchant Marine Co Ltd and Another ComC 7-Feb-2002
. .
See Also – Papera Traders Co Limited and others v Hyundai Merchant Marine Co Limited, The Keihin Co Limited QBD 7-Feb-2002
A fire destroyed the ‘Eurasian Dream’ while in port. It was carrying cars, a fire in which got out of control. It was claimed that the ship managers had been negligent. The bill of lading contracts in the present case incorporated either the Hague . .
Lists of cited by and citing cases may be incomplete.

Costs

Updated: 13 June 2022; Ref: scu.201850