A judgment creditor, whose debt had been satisfied but who had not entered satisfaction on the rolls, was made a Defendant to a foreclosure suit. He disclaimed. Held, that he was not entitled to his costs, in consequence of his negligence in not entering up satisfaction of his judgment,
Sir John Romilly MR
[1864] EngR 699 (A), (1864) 34 Beav 107
England and Wales
Updated: 15 May 2022; Ref: scu.282413
The court made an order for costs against the members of the Association on rejection of its request for permission to bring judicial review proceeds, even though he had found that the Association was not a legal person capable of bringing such proceedings. Auld J said: ‘The fact that I have found on the application to set aside that the Associations were not legal persons and that, therefore, the proceedings had to be set aside because they were not properly constituted, does not render all that went before a nullity or deprive them of the character of ‘proceedings’ for the purpose of the RSC. .’
Auld J
[1995] COD 128
England and Wales
See Also – Regina v Darlington Borough Council Ex Parte Association of Darlington Taxi Owners and Darlington Owner Drivers Association QBD 13-Jan-1994
The court should distinguish the concepts of locus standi and capacity when considering applications for judicial review. An unincorporated association is not a legal person and may not seek Judicial Review. . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 May 2022; Ref: scu.276212
The introduction of a Standard Fees Criminal Legal Aid regime did not require prior consultation with the Law Society. The rules had been imposed in accordance with the words of the enabling statute.
Independent 22-Jun-1993, Times 25-Jun-1993
Updated: 15 May 2022; Ref: scu.163155
On a case management hearing, the defendants made admissions on which judgment was entered. The master reserved but later awarded costs. The defendants appealed against the costs order saying that the claimants had proceeded unnecessarily aggressively and had failed to disclose evidence in a timely way. The appeal took effect as a rehearing. Intellectual property cases should be subject to the same overriding objectives as in other cases. In this case the order was correct. An appeal to a High Court judge against an order for costs, was a rehearing, and such a judge was free to exercise his discretion accordingly. Where however the issue related to something specifically within the knowledge of the first instance judge such as the proportionality of the costs to the matter in cause this was to be disturbed only rarely. That the award was made on what was essentially a case management conference should not make a difference of principle.
Gazette 17-Feb-2000, Times 02-Mar-2000
England and Wales
Updated: 15 May 2022; Ref: scu.89399
An Official Receiver acting without a solicitor in court proceedings did not fall within the definition of a litigant in person and was not entitled to costs and expenses on the basis of a litigant in person.
Times 25-Jun-1998
Litigants in Person (Costs and Expenses) Act 1975
England and Wales
Updated: 15 May 2022; Ref: scu.82064
A delay in an application to strike out for no cause having been shown need not sound in the costs awarded.
Times 30-Apr-1996, Gazette 10-Jul-1996
England and Wales
Updated: 15 May 2022; Ref: scu.80746
An agreement between a lawyer and his client not to charge the client if no costs were awarded in the action, meant that the party had no costs to recover.
Times 05-Dec-1994
Updated: 15 May 2022; Ref: scu.79401
There had been an application in 1986 for planning permission for a shopping centre in Trafford. There were two public enquiries, followed, as public policy changed by further representations. The plaintiff complained that the eventual decision letter was defective in failing to deal with issues of urban regeneration, and with reservation of areas for industrial use.
Held: The Secretary of State had to state his reasons ‘in sufficient detail to enable the reader to know what conclusion he had reached on the principal important controversial issues. To require him to refer to every material consideration, however insignificant, and to deal with every argument, however peripheral would be to impose and unjustifiable burden.’ In this case, though the decision letter was open to criticism, it had achieved the necessary standard and stood.
Lord Lloyd said: ‘In all questions to do with costs, the fundamental rule is that there are no rules. Costs are always in the discretion of the court, and a practice, however widespread and longstanding, must never be allowed to harden into a rule.’
Lord Goff of Chievley, Lord Mustill, Lord Slynn of Hadley, Lord Lloyd of Berwick, Lord Steyn
Times 25-May-1995, Ind Summary 10-Jul-1995, (1995) 71 P and CR 309, (1995) 1 WLR 1176
England and Wales
See also – Bolton Metropolitan District Council and Others v Secretary of State for the Environment and Others No 2 HL 17-Jul-1995
The applicants had been successful in their appeal against a refusal of planning permission. The Secretary of State had awarded himself and the applicants their costs against the Council. The Council asked the House to give guidance on the . .
Appeal from – Bolton Metropolitan Borough Council and Others v Secretary of State for Environment and Others CA 4-Aug-1994
A decision maker can take a preliminary view of a matter provided that he continues to keep an open mind. . .
Cited – Hope v Secretary of State for the Environment 1975
. .
See also – Bolton Metropolitan District Council and Others v Secretary of State for the Environment and Others No 2 HL 17-Jul-1995
The applicants had been successful in their appeal against a refusal of planning permission. The Secretary of State had awarded himself and the applicants their costs against the Council. The Council asked the House to give guidance on the . .
Cited – South Buckinghamshire District Council and Another v Porter (No 2) HL 1-Jul-2004
Mrs Porter was a Romany gipsy who bought land in the Green Belt in 1985 and lived there with her husband in breach of planning control. The inspector gave her personal permission to continue use, and it had been appealed and cross appealed on the . .
Cited – Hurst, Regina (on the Application of) v Commissioner of Police of the Metropolis v London Northern District Coroner HL 28-Mar-2007
The claimant’s son had been stabbed to death. She challenged the refusal of the coroner to continue with the inquest with a view to examining the responsibility of any of the police in having failed to protect him.
Held: The question amounted . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 May 2022; Ref: scu.78475
An application for maintenance pending suit could properly be made, to include payment on account of the legal costs of pursuing the action. Such legal expense were of a recurring, and income type nature. Maintenance was not confined to the day to day living expenses of an applicant. In the absence of a statutory definition, there was neither any case law definition which would preclude such expenses. Without such an order, the impecunious wife would be unable to progress in the single issue which dominated her life.
Times 15-Nov-2000, Gazette 16-Nov-2000, [2001] 1 FLR 377
Matrimonial Causes Act 1973 22
Cited – McFarlane v McFarlane; Parlour v Parlour CA 7-Jul-2004
Appeals were made against orders for periodical payments made against high earning husbands. The argument was that if the case of White had decided that capital should be distributed equally, the same should apply also to income.
Held: The . .
Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 May 2022; Ref: scu.77586
An order for costs could be proved where the action was in respect of a provable debt or liability. In such a case they were regarded as an addition to the sum recovered.
[1899] 2 Ch 7
Cited – Haine v Secretary of State for Business Enterprise and Regulatory Reform and Another; Day v Haine CA 11-Jun-2008
Former employees had obtained a protective award against the company for failing to consult on the impending redundancies and submitted proofs of debt to the liquidator who sought guidance from the court. The judge had held that since the Act . .
Cited – In re Nortel Companies and Others SC 24-Jul-2013
The court was asked as to the interrelationship of the statutory schemes relating to the protection of employees’ pensions and to corporate insolvency.
Held: Liabilities which arose from financial support directions or contribution notices . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 May 2022; Ref: scu.268852
The three plaintiff executors, who had unsuccessfully propounded a will, were also residuary legatees under the will, had themselves managed the deceased’s affairs before she made it, and had had ample opportunity of forming an opinion as to her testamentary capacity.
Held: They had not acted improperly, but they had taken a view about the testatrix which turned out to be mistaken. The executors had taken a view and acted upon it, in circumstances where they stood to benefit if the will was upheld. There was accordingly nothing to warrant a departure from the general rule that costs should follow the event.
Sir Gorell Barnes
[1902] P 92
Distinguished – Boughton v Knight 1873
The jury found that the testator had not been of sound mind, memory and understanding when he made the will propounded by the plaintiffs.
Held: The court contrasted a person of ‘sound mind’ with one suffering from ‘delusions’. The amount and . .
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 May 2022; Ref: scu.263525
A plaintiff who goes takes his case to trial has no right to costs until an order is made, but if an order is made the court shall order that they follow the event unless in the circumstances of the case some other order should be made. It is only conduct connected with or leading up to the litigation proved before the judge or observed by him during the progress of the case which can provide a proper basis for the exercise of his discretion. It was not permissible for a court to put upon a statute giving unfettered discretion a gloss which would lead to frustration of its obvious purpose but the discretion must be exercised judicially and therefore must be based on some grounds, for a discretion exercised on no grounds cannot be judicial.
Viscount Cave LC
[1927] AC 732, [1927] All ER 1
England and Wales
Cited – Lamont v Burton CA 9-May-2007
The defendant had settled the claim for damages for personal injury. His payment in had been rejected, but the claimant won a smaller sum at trial. He now argued that the claimant should not receive the full 100% costs uplift provided.
Held: . .
Cited – Perinpanathan, Regina (on The Application of) v City of Westminster Magistrates Court and Another CA 4-Feb-2010
The appellant’s daughter had been stopped entering the country with andpound;150,000 in cash. The police sought an order for its forfeiture, suspecting a link with terrorism. The magistrates found no evidence of such, and declined to make the order, . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 May 2022; Ref: scu.253430
A party wishing to raise a matter concerning the conduct of the opposing party, either before or during litigation, was under a duty to raise it before the judge making the costs order, was too broadly stated.
[2004] EWHC 1162 (QB)
England and Wales
Cited – Business Environment Bow Lane Ltd v Deanwater Estates Ltd ChD 31-Jul-2009
The court was asked ‘Where a claimant has picked up one or more costs orders in its favour on the way to a trial, but fails very badly at the trial (for example due to exaggeration), can the costs judge assess those costs at nil on the footing that . .
See Also – Aaron v Shelton SCCO 24-May-2004
. .
See Also – Aaron v Shelton SCCO 24-May-2004
. .
Cited – Northstar Systems Ltd and others v Fielding and others; Ultraframe (UK) Ltd and Others v Fielding and Others (No 2) CA 6-Dec-2006
The parties had disputed ownership of intellectual property rights. The court had found certain parties dishonest. The judge had found the successful defendants honest and adjusted the costs order in their favour. The claimants appealed.
Held: . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 May 2022; Ref: scu.247886
When making an order for security for costs, the court will normally order a substantial sum, but need not.
[1991] BCC 726
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.
Updated: 13 May 2022; Ref: scu.225885
Munby J
[2005] EWHC 585 (Admin)
England and Wales
Updated: 13 May 2022; Ref: scu.224530
Costs – Contentious Business Agreement- Section Does not limit the costs recoverable by a successful party to the hourly rates agreed in a Contentious Business Agreement – the limit only applies to the global limit payable under the agreement.
Tuckey J
[1997] 2 Costs LR 66
England and Wales
Appeal from – General of Berne Insurance Company v Jardine Reinsurance Management Limited CA 12-Feb-1998
Where only part of action for which costs are awarded, is covered by a contentious business agreement, and the amount recoverable is limited, that part is severable from the balance. A paying party cannot be ordered to pay a receiving party more by . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 May 2022; Ref: scu.220783
[1916] 2 Ch 168
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 May 2022; Ref: scu.216505
In a personal injury action, the infant plaintiff obtained judgment in his favour for damages to be awarded. On appeal that judgment was reversed and judgment was entered in favour of the defendant ‘with the costs including the costs of this appeal’. The costs having been taxed, the defendant’s solicitor proposed to issue a writ of fi. fa. against the infant plaintiff’s next friend, but was told that that was not possible as no order had been made against him. There followed an application for the order to be amended.
Held: When the court had allowed the appeal of the defendant it was asked to order that judgment should be entered for her with costs. That was the order drawn up. ‘In his opinion the addition now asked for was not one that could be made under the slip rule. That rule was intended for the correction of an order which, as drawn up, did not express that which was decided by the Court. It was quite possible that an order in the terms now asked for might have been made if an application had been made at the time, but no such application was made.’
Scrutton LJ
[1931] WN 171
Updated: 13 May 2022; Ref: scu.200473
The court considered the argument that a wife’s maintenance pending suit should be limited to her reasonable needs: ‘I do not accept that argument for the following reasons. The purpose of the 1970 Act was to change statutory provisions that were outdated and inadequate and to make a new start. Although the word ‘maintenance’ was used in both SS1 and 6 of 1970 Act (now SS22 and 27 of the MCA 1973) there are changes between section 6 of the 1970 Act (section 27 of the MCA 1973 and its predecessors and the word ‘maintenance’ is not used in the predecessors to section 1 of the 1970 Act (section 22 of the MCA 1973). The subsequent amendments to section 27 of the MCA 1973 confirm or clarify that ‘maintenance’ was not used by Parliament to refer to the old common law duty of a husband to maintain his wife. The report (read alone and together with the Working Paper) supports the conclusion that ‘maintenance’ was not used by Parliament to refer to the old common law duty of a husband to maintain his wife.
Charles J
(2003) 2 FCR 339
Matrimonial Causes Act 1973 25, Matrimonial Proceedings and Property Act 1970
Cited – McFarlane v McFarlane; Parlour v Parlour CA 7-Jul-2004
Appeals were made against orders for periodical payments made against high earning husbands. The argument was that if the case of White had decided that capital should be distributed equally, the same should apply also to income.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 May 2022; Ref: scu.198587
‘Improper’ within the regulation does not mean morally reprehensible but improper in the sense of an act or omission which would not have occurred if the party concerned had conducted his case properly.
[1991] 3 WLR 235
Criminal Cases (General) Regulations 1986 3
Cited – Oddy, Regina (on the Application of) v Bugbugs Ltd Admn 12-Nov-2003
A private prosecutor appealed dismissal of his complaint that the respondent had operated an unlicensed man-powered rickshaw service. The district judge had held that it was not a taxi service. It was, under the 1869 Act a stage carriage and . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 May 2022; Ref: scu.193392
[1958] 1 QB 323
England and Wales
Overruled – 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.
Updated: 13 May 2022; Ref: scu.193433
Security for costs
[1874] LR 9 QB 118
England and Wales
Considered – Porzelack KG v Porzelack (UK) Ltd 1987
When considering an application for security for costs against a litigant resident in the EU, the courts must allow for the new additional scope for enforcement of any judgment under the 1982 Act. In this case, an order for security for costs . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 May 2022; Ref: scu.192280
The plaintiff could not recover damages for the mental distress of conducting litigation. The court found it difficult to draw the line as to where such damage could be identified. In this case the damage could not reasonably be said to have flowed from the solicitor’s failures about which the complaint was made: ‘In these circumstances I think that, just as in the law of tort, so also in the law of contract, damages can be recovered for nervous shock or anxiety state if it is a reasonably foreseeable consequence. So the question became this: when a client goes to a solicitor, is it a reasonably foreseeable consequence that, if anything goes wrong with the litigation owing to the solicitor’s negligence, there will be a breakdown in health? It can be foreseen that there will be injured feelings; mental distress; anger; and annoyance; but for none of these can damage be recovered. It was so held in Groom v. Crocker [1939] 1 K.B. 194 on the same lines as Addis v. Gramophone Co. [1909] A.C. 488. Is it reasonably foreseeable that there may be an actual breakdown in health? I do not think so. It was suggested in this case that there were special circumstances in that Mrs. Cook was peculiarly liable to nervous shock. I am afraid she was. The history of her life shows one nervous breakdown after another. If this special circumstance was brought home to Mr. Swinfen, it might enlarge the area of foreseeability so as to make him liable. But it was not pleaded. and when Mr. Moloney put questions to Mr. Swinfen, he did not succeed in showing that special circumstances were brought home to him. All Mr. Swinfen knew was that she was a woman obviously highly strung and worried as any woman would be in the circumstances. But that does not mean that he should foresee that, if he was negligent, she would suffer injury to health. In all these cases of nervous shock and breakdown in mental health, it is very difficult to draw the line. In King v. Phillips [1953] 1 Q.B. 429, 442 I asked: ‘Where is the line to be drawn?’ I found the answer given by Lord Wright: ‘Only where’ in the particular case the good sense of the judge decides”.’
Lord Denning MR
[1967] 1 WLR 457
England and Wales
Appeal from – Cook v Swinfen 1966
. .
Applied – 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 . .
Distinguished – Heywood v Wellers CA 1976
The claimant instructed solicitors in injunction proceedings which they conducted negligently. The solicitors had put the case in the hands of an incompetent junior clerk. She sued acting in person, and succeeded but now appealed the only limited . .
Cited – Wiseman v Virgin Atlantic Airways Ltd QBD 29-Jun-2006
The claimant said that he was refused permission to board a flight by the defendants representative without paying a bribe, and was publicly humiliated for not doing so.
Held: Whilst the claimant could recover for his own additional expenses, . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 May 2022; Ref: scu.190230
Scott LJ
[1965] CLY 3177, [1965] 1 WLR 745
England and Wales
Not Followed – 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 – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 May 2022; Ref: scu.190231
Robert Walker LJ
Unreported, 27 October 2000
England and Wales
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 – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 May 2022; Ref: scu.190232
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 defendants’, ‘not to be enforced without leave of the court save by way of set-off as against damages and/or costs’.
Held: The plaintiff’s appeal on the costs order failed. ‘The issue in this appeal is whether, in a case where one party is legally aided, an order for costs in favour of the other party can direct that those costs be set-off against either damages or costs to which the legally aided party has become, or may in future become, entitled in the action.’
The court confirmed the right of a party to set off a costs award against a subsequent damages or costs award in favour of an assisted person. Section 16(8) simply preserved those rights of set-off that the general law would allow and protected them against the charge created by section 16(6). It did not create any new right of set-off. Its effect was to make it clear that whatever rights of set-off were available under the general law were available against legally aided parties notwithstanding the board’s charge.
Scott LJ discussed the principles applying on an application for set-off costs: ‘The broad criterion for the application of set-off is that the plaintiff’s claim and the defendant’s claim are so closely connected that it would be inequitable to allow the plaintiff’s claim without taking into account the defendant’s claim. As it has sometimes been put, the defendant’s claim must, in equity, impeach the plaintiff’s claim.
Set-off of costs or damages to which one party is entitled against costs or damages to which another party is entitled depends upon the application of the equitable criterion I have endeavoured to express. It was treated by May J in Currie and Co v The Law Society [1977] QB 990, 1000, as a ‘question for the court’s discretion’. It is possible to regard all questions regarding costs as being subject to the statutory discretion conferred on the court by section 51 of the Supreme Court Act 1981. But I would not have thought that a set-off of damages against damages could properly be described as a discretionary matter, nor that a set-off of costs against damages could be so described.’ and ‘A set-off of costs against costs, when all are incurred in the prosecution or defence of the same action, seems so natural and equitable as not to need any special justification. I would expect a party objecting to the set-off to give some special reason for the objection. It is, in my opinion, less obvious that a set-off of costs against damages would always be justified.’
Farquharson LJ, Sir John Megaw, Scott L
[1992] 1 WLR 492, [1992] 2 All ER 589
England and Wales
Not Followed – Anderson v Hills Automobiles (Woodford) Ltd 1965
. .
Applied – Cook v Swinfen CA 1967
The plaintiff could not recover damages for the mental distress of conducting litigation. The court found it difficult to draw the line as to where such damage could be identified. In this case the damage could not reasonably be said to have flowed . .
Cited – Carr v Boxall 1960
. .
Cited – Currie and Co v The Law Society 1976
Set-off of costs or damages to which one party is entitled against costs or damages to which another party is entitled depends upon the application of equitable rules. May J said: ‘[T]he set-off takes precedence over the solicitor’s particular lien, . .
Applied – 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 – 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 . .
Cited – Franses v Al Assad and others ChD 26-Oct-2007
The claimant had obtained a freezing order over the proceeds of sale of a property held by solicitors. The claimant was liquidator of a company, and an allegation of wrongful trading had been made against the sole director and defendant. The . .
Cited – Ahmad v London Borough of Brent and Others QBD 25-Feb-2011
. .
Cited – Rybak and Others v Langbar International Ltd ChD 18-Feb-2011
. .
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.
Updated: 13 May 2022; Ref: scu.190229
The powers in the section together with the power to make orders for costs under Order 62 of the Rules of the Supreme Court included the power to make a pre-emptive order for costs.
Lord Donaldson MR said: ‘In these circumstances the judge decided to make a wholly novel order. In its detail it is of some complexity, but for present purposes it is only necessary to summarise its general effect. This was that, as from 8 June 1987, where particular plaintiffs incurred costs either personally or through the legal aid fund in pursuing lead actions, or thereby became liable to pay costs to the defendants, every other plaintiff should contribute rateably on a per capita basis. Those who have practised in the Commercial Court, of which Hirst J. is one of the judges, will recognise the age old respectability of such an order, based as it clearly is upon the Rhodian Law, the Rolls of Oleron and the maritime law of general average. But antiquity, respectability and indeed fundamental fairness is one thing – the power to make such an order is quite another. And here we come to the nub of this appeal. Before coming to that issue I should add that the judge recognised that in the months that lie ahead before a settlement or a final hearing circumstances might change. Thus some of the plaintiffs might decide to abandon their claims, so that instead of each plaintiff having to contribute 66 pence for every andpound;1,000 of the costs of the lead plaintiffs (on the basis of 1,500 plaintiffs), the contribution might rise significantly. And other unforeseeable eventualities might arise making this order unfair or unduly burdensome. He therefore gave all the parties liberty to apply to vary the order if circumstances changed. Finally he rightly stressed that his order in no way fettered the discretion of the trial judge to make special orders as to costs between the plaintiffs or individual plaintiffs and the defendants or individual defendants. In essence what he was doing was providing for contribution as between plaintiffs in respect of costs incurred by them or liability for costs imposed upon them, subject always to retaining a right to vary that order if justice so required. He also recognised that some plaintiffs might not wish to accept even this very small percentage of what in total could be a very considerable liability and he therefore ordered that any plaintiff who wished to abandon his action could do so, each party bearing its own costs of that discontinuance if he did so before 8 June 1987.’
Lord Donaldson MR
[1987] 1 WLR 1136, [1987] 3 All ER 94
England and Wales
Cited – A B and others v Leeds Teaching Hospitals NHS Trust QBD 9-May-2003
The claimants were involved in a group litigation with regard to the removal of organs without consent from deceased children. The defendant sought an order capping the costs which might be claimed.
Held: In GLO cases the desirability of . .
Cited – Afrika and others v Cape Plc and others; X Y Z and Others v Schering health Care Ltd; Sayers and Others v Merck, Smithkline Beecham plc MMR/MR vaccine litigation CA 21-Dec-2001
Claimants sought damages for personal injuries after immunisation with the MMR vaccine. . .
Cited – Tovey and Others v Ministry of Justice QBD 18-Feb-2011
The claimants, serving prisoners, sought damages saying that the refusal to allow them to vote was in infringement of their human rights. The large numbers of claims had been consolidated in London. The claimant sought to withdraw his claim.
Lists of cited by and citing cases may be incomplete.
Updated: 12 May 2022; Ref: scu.190134
Permission to appeal is required against a summary assessment of costs. The correct approach was set out in Lownds. Here, and although the registrar had not followed the recommended two stage approach, the result was reasonable.
Times 17-Dec-2003, Gazette 22-Jan-2004
England and Wales
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 May 2022; Ref: scu.189950
[1991] 1 FLR 179
England and Wales
Updated: 12 May 2022; Ref: scu.189896
The Honourable Mr Justice Gage
[2003] EWHC 2806 (QB)
Updated: 12 May 2022; Ref: scu.188280
Hobhouse J said: ‘I would not lend support to the adoption of an unduly low hourly rate and then seeking to put it right by applying a higher uplift percentage. The right approach is that which I have emphasised, namely to adopt a realistic approach to the hourly rate to reflect the actual cost of the fee earner involved, and then to apply an appropriate but not excessive uplift’.
Hobhouse J
(1989) Costs Law Reports 106
Cited – Jemma Trust Company Ltd v Liptrott, Forrester, Kippax Beaumont Lewis CA 24-Oct-2003
Solicitors sought to challenge an order disallowing a costs item for the administration of an estate which included a percentage of the estate.
Held: Despite advances in time recording, ‘we see no reason to say that it is no longer appropriate . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 May 2022; Ref: scu.187172
Where the parties, having settled their case, agreed for a costs judge to fix the costs, there was no appeal from his judgment.
(1977) CAT 4743
Doubted – BCT Software Solutions Ltd v C Brewer and Sons Ltd CA 11-Jul-2003
A copyright infringement case had been settled, but the court was to quantify and apportion costs. Some andpound;700,000 having been spent when the damages amounted to andpound;10,000.
Held: Denne did not oust the court’s jurisdiction to hear . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 May 2022; Ref: scu.184526
The plaintiff argued that no costs had been incurred by the successful defendant, as he was insured, and the insurance company was bound to pay his costs.
Held: ‘In this case the solicitors, no doubt first instructed by the insurance company, were the solicitors on the record as the solicitors for the respondent. They acted for him and, in the absence of proof of an agreement between him and them or between them and the insurance company that he would not pay their costs, they could look to him for payment for the work done and his liability would not be excluded by the fact that the insurance company had itself agreed to pay their costs. In my opinion the costs incurred were incurred by the respondent in the sense in which those words are used in the Legal Aid Act 1964.’
Viscount Dilhorne
[1974] AC 225
England and Wales
See Also – Davies v Taylor HL 1974
The plaintiff’s husband was killed in a road accident caused by the defendant’s negligence. They were childless. She had deserted him five weeks before his death and thereafter, he learned about her adultery with a fellow employee. He tried to . .
Cited – Miskin, Miskin v St John Vaughan SCCO 18-Sep-2002
The claimants resisted an order to pay the VAT element awarded on the defendant’s legal costs. The revenue had been unable to state clearly whether the defendant would be able to recover VAT, in which case it would not be payable, or the reverse. It . .
See Also – Davies v Taylor HL 1974
The plaintiff’s husband was killed in a road accident caused by the defendant’s negligence. They were childless. She had deserted him five weeks before his death and thereafter, he learned about her adultery with a fellow employee. He tried to . .
Cited – Bee v Jenson ComC 21-Dec-2006
The defendant objected to paying the plaintiff the costs of a replacement hire car after the accident for which he was liable. He said that the plaintiff was in any event insured to recover that cost, and the insurance company were subrogated to the . .
Cited – Radford and Another v Frade and Others QBD 8-Jul-2016
The court was asked as to the terms on which solicitors and Counsel were retained to act for the defendants. The appeals did not raise any issues concerning costs practice, and were by way of review of the Costs Judge’s rulings, and not by way of . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 May 2022; Ref: scu.183450
Counsel’s fees having been omitted from the solicitor’s bill as taxed, they could not later be claimed.
Sir Gorell Barnes, Farwell LJ
[1908] 2 KB 420
Cited – Aaron v Okoye CA 15-Jan-1998
The plaintiff solicitor had acted for the respondent barrister in legal proceedings. The respondent was unhappy with work done on her behalf by counsel instructed by the plaintiff, and declined to pay. The solicitor taxed his bill excluding . .
Cited – Aaron v Okoye CA 19-Mar-1997
. .
Lists of cited by and citing cases may be incomplete.
Updated: 12 May 2022; Ref: scu.183326
A party’s inability to recover more by way of costs than the amount for which he is himself liable by way of costs is known as the indemnity principle.
[1910] 1 KB 645
England and Wales
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 May 2022; Ref: scu.182517
[2009] EWCA Crim 2516, [2010] 2 Costs LR 262
England and Wales
Updated: 12 May 2022; Ref: scu.430815
[2011] EWCA Civ 1119, [2011] 4 Costs LO 547, [2012] CP Rep 2
England and Wales
Updated: 12 May 2022; Ref: scu.445282
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 found available material to justify the allegation in a format in which it could be produced to court in evidence. Where such material was unavailable because the client declined to waive confidence, counsel was at risk of a wasted costs order. Counsel are immune from defamation for such matters, and accordingly must behave responsibly.
Times 02-Jan-2001, Gazette 01-Feb-2001
England and Wales
See Also – 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 . .
See Also – Medcalf v Mardell and others CA 2-Mar-2000
. .
Appeal from – 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 . .
See Also – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 May 2022; Ref: scu.135662
Where a delay in submitting a bill for taxation was substantially caused by delay to allow for negotiations, it was wrong to refuse leave to extend time to file bill depriving that party of all costs when a lesser penalty was both possible and appropriate.
Times 07-Dec-1998
England and Wales
Updated: 11 May 2022; Ref: scu.89914
A wasted costs order was intended to be a summary procedure and it was not appropriate to make one where the order would require detailed and lengthy investigations. Breach of solicitor’s professional duty to client might also take the issue outside the wasted costs procedure.
Times 03-Aug-1998
Supreme Court Act 1981 51(6),(7)
England and Wales
Updated: 11 May 2022; Ref: scu.90027
A judge was wrong to find that a party to an action in the Manchester High Court, where the events occurred and all the witnesses lived, could instruct London solicitors and recover London costs. The case was not complex and could have been handled locally.
Times 19-May-1999
England and Wales
Updated: 11 May 2022; Ref: scu.89602
Where there were in fact two claims, whether consolidated or not and different success for each claim, costs should follow each event, and be apportioned according to the time taken by each matter.
Times 30-Jul-1998
Rules of the Supreme Court Order 62 R 3(3)
England and Wales
Updated: 11 May 2022; Ref: scu.89647
Where there were in fact two claims, whether consolidated or not and different success for each claim, costs should follow each event, and be apportioned according to the time taken by each matter.
Gazette 09-Sep-1998
Rules of the Supreme Court Order 62 R 3(3)
England and Wales
Updated: 11 May 2022; Ref: scu.89648
A company was wound up on public interest grounds. The costs were ordered to be paid out of the company’s assets. The Secretary appealed, and on appeal the costs were ordered to be paid by the company’s sole director and shareholder personally. The company was a swindle, and there was no reason why anyone other than the proprietor should lose out if it was not necessary.
Gazette 31-Aug-2000
England and Wales
Updated: 11 May 2022; Ref: scu.89110
Freedman J
[2019] EWHC 374 (QB)
England and Wales
Updated: 11 May 2022; Ref: scu.634224
The wife had objected to the instruction by her former husband of a solicitor who had been instructed by her some seven years previously. She withdrew her objection, but the court now considered an appeal as regards costs.
Held: The court considered the possible subconscious influence on a lawyer having acted before for a party.
Sir Stephen Brown P, Robert Johnson J
[2000] 1 FLR 39
England and Wales
Approved – Prince Jefri Bolkiah v KPMG (A Firm) HL 16-Dec-1998
Conflicts of Duty with former Client
The House was asked as to the duties of the respondent accountants (KPMG). KPMG had information confidential to a former client, the appellant, which might be relevant to instructions which they then accepted from the Brunei Investment Agency, of . .
Cited – ZS v FS (Application To Prevent Solicitor Acting) FD 24-Oct-2017
Discosure of Confidences must be at risk
H sought to restrain W’s solicitors from acting. The firm was one of six firms approached to consider representing H, and he now said that certain matters had been diviluged to the firm.
Held: The legal principles were clear, and it was for H . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 May 2022; Ref: scu.599588
The third defendant sought an order that the costs of the claim for an injunction against him, once it was discontinued on the second day of trial, should be assessed on an indemnity basis.
Held: The order should be made. The power of the court under Rule 38.6 to ‘order otherwise’ clearly includes power, in an appropriate case, to order that the defendant’s costs should be paid on the indemnity basis.
Rattee J said: ‘I should say that one of the striking features of this case, having regard to the claim for an injunction which has been made throughout by the claimant against the third defendant, is that at no stage was any attempt made to obtain from the Court any interim injunction. The result of that, of course, has been inevitably that by the time the trial of this action started at the beginning of this week the defendant’s business had been up and running for nearly a year, certainly nearly 11 months, and Mr Dowding, on behalf of the claimant, realistically accepted that, as a result, any claim he might otherwise have had for an injunction was seriously undermined, given that there had been no attempt by his client, in the meantime, to seek interim injunctive relief from the Court.
I do not find this an easy question but, on balance, I think the claimant should have to pay the third defendant’s costs on an indemnity basis. I am concerned by the way in which this litigation has been conducted on the part of the claimant against the third defendant, culminating in the notice of discontinuance today.’
Rattee J
[2000] CP Rep 32
Cited – Wates Construction Ltd v HGP Greentree Allchurch Evans Ltd TCC 10-Oct-2005
A unit constructed by the claimant had collapsed under a weight of rainwater. It had been constructed according to a design provided by the defendants. The claimants had discontinued the action on the morning of the trial, and the defendants now . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 May 2022; Ref: scu.524024
The parties had disputed an application for an injunction and claims in harassment, and now asked the court to apportion costs.
Held: The Claimant has succeeded on a part of his case which is important, but is relatively minor in relation to the substance of his complaint. His success is primarily in obtaining protection of the rights of third parties rather than of his own rights. But viewed overall in my judgment the Defendant has come out of this trial better than he has. It is only my assessments that the risk of his making disclosure in the future is insufficient to justify an injunction that he can be regarded as having had greater success than her.
Tugendhat
[2014] EWHC 1663 (QB)
England and Wales
See Also – AVB v TDD QBD 20-Jun-2013
The claimant sought a privacy injunction in respect of information he said had been learned from him by the defendantt . .
See Also – AVB v TDD QBD 12-May-2014
The Claimant sought an injunction to restrain the misuse of private and confidential information and harassment, and for damages. The information was as to the relationship between the parties and in part what the Defendant learnt about AVB’s family . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 May 2022; Ref: scu.525796
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 travelling to Rotterdam in connection with the sale of shares by a client.
Held: In neither case did the expenditure constitute a disbursement made on behalf of the clients. Wien J, adopting the VAT tribunal’s views, said: ‘In our view that supply consisted of what we may comprehensively call the legal services rendered by the appellants in connection with the proposed sale, some of which had to be rendered in Rotterdam and could only be so rendered if a member of the firm travelled there for the purpose. He concluded that the nature of the services provided by the solicitor necessarily involved expenditure on travel tickets, which was a cost component of his services, saying that the expenditure was ‘something which is not strictly a payment that the client has asked for, either expressly or impliedly, but is part of the whole legal services rendered by the solicitor for which there is a consideration’.
Bridge J, concurring, identified a class of cases ‘where the goods or services purchased are supplied to the solicitor, as here in the form of travel tickets, to enable him effectively to perform the service supplied to his client, in this case to travel to the place where the solicitor’s service is required to be performed. In such case, in whatever form the solicitor recovers such expenditure from his client, whether as a separately itemised expense or as part of an inclusive overall fee, value added tax is payable because the payment is part of the consideration which the client pays for the service supplied by the solicitor.’
Bridge J, Wien J, Eveleigh J
[1975] STC 340
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 May 2022; Ref: scu.463690
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 and excessive reviews than the administration warranted. Chief Registrar Baister set out the approach he would adopt to fixing the applicant administrators’ remuneration: ‘I shall examine the main work streams and some of their subcategories and consider the time spent and whether it was justified; I shall have regard, insofar as I can, to the level at which work has been done; I shall consider the benefit of the work done and, to any extent appropriate, whether it was necessary. I shall then look at the larger picture and consider the case in terms of value. In doing so I shall have regard to the factors set out in the rules and to other factors peculiar to this case. I shall bear in mind that time spent is a measure not of the value of the service rendered but of the cost of rendering it. I do not propose, therefore, to allow myself to be influenced to any real extent by the final figures which the administrators claim, since, it seems to me that, prima facie, they reflect the cost of time rather than the value of the service provided. I shall resolve any doubts I have against the administrators.’
Chief Registrar Baister
[2005] BPIR 28
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 – 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 – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 May 2022; Ref: scu.430875
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 grounds that the amount of work undertaken did not justify a rate higher than the rate usually applied. PO Lawrence J also said this of a time-basis: ‘The Court as a general rule only fixes remuneration on a time-basis if there is no other method which would operate to give the liquidator fair remuneration. Experience has shown that the time occupied by a liquidator and his clerks affords a most unreliable test by which to measure the remuneration. Even the best accountant may spend hours over unproductive work, let alone his more or less efficient staff of clerks . . The Court has long since come to the conclusion that the proper method to adopt whenever it is practicable is to assess the remuneration according to the results attained,’
PO Lawrence J
(1923) 39 TLR 194
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 May 2022; Ref: scu.430874
The appellant argued that the Costs Practice Direction, supplementing Parts 43-48 of the CPR, had the same force in law as the Legal Aid in Family Proceedings (Remuneration) Regulations 1991; and that they impliedly amended or repealed them in so far as they were inconsistent.
Held: The argument was rejected. Hale LJ said: ‘Unlike the Lord Chancellor’s orders under his ‘Henry VIII’ powers, the Civil Procedure Rules 1998 themselves and the 1991 Remuneration Regulations, the Practice Directions are not made by Statutory Instrument. They are not laid before Parliament or subject to either the negative or positive resolution procedures in Parliament. They go though no democratic process at all, although if approved by the Lord Chancellor he will bear ministerial responsibility for them to Parliament. But there is a difference in principle between delegated legislation which may be scrutinised by Parliament and ministerial executive action. There is no ministerial responsibility for Practice Directions made for the Supreme Court by the Heads of Division. As Professor Jolowicz says . . ‘It is right that the court should retain its power to regulate its own procedure within the limits set by statutory rules, and to fill in gaps left by those rules; it is wrong that it should have power actually to legislate’.’
Hale LJ
[2001] 1 FLR 602
Legal Aid in Family Proceedings (Remuneration) Regulations 1991, Civil Procedure Rules
England and Wales
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.
Updated: 11 May 2022; Ref: scu.408768
The respondent had recovered his car from the police via a complaint to the magistrates, having lent it to his brother-in-law, who had used it in a burglary. The magistrates found that he had not known of the intended use. The police had taken no steps to ascertain his state of knowledge, and the magistrates ordered the police to pay his costs. The police appealed by case stated against the order for costs.
Held: The appeal was dismissed. The conduct of the police justified the order. In the course of judgment the Court said: ‘In matters of this kind, it was of the utmost assistance to the justices that the police should be present at court, both to indicate whether or not they objected to the order being made, and to test the evidence of a claimant. In such circumstances, the justices would normally make no order for costs. But they did have a discretion, and if they considered that the police had gone beyond the usual rule merely assisting the justices, and actively opposed the order, then there was no reason why the justices should not, in the exercise of their discretion, order the police to pay costs. That was clearly what happened in the present case.’
[1984] Crim LR 232
England and Wales
Updated: 11 May 2022; Ref: scu.401966
[2005] EWHC 90005 (Costs)
England and Wales
Updated: 11 May 2022; Ref: scu.230400
An unincorporated association although not a legal person with the capacity to sue in judicial review, may still suffer an order for costs.
Times 14-Apr-1994
England and Wales
See Also – Regina v Darlington Borough Council Ex Parte Association of Darlington Taxi Owners and Darlington Owner Drivers Association QBD 13-Jan-1994
The court should distinguish the concepts of locus standi and capacity when considering applications for judicial review. An unincorporated association is not a legal person and may not seek Judicial Review. . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 May 2022; Ref: scu.86506
No costs order should normally be made in favour of the relatives of the deceased seamen, following an enquiry by the Wreck Commissioner, save only in cases of hardship. The responsibility for ship safety is a matter of proper concern to ship-builders as well as regulators. The Commissioner having considered all those points which he was obliged to do, his decision was not to be faulted.
Gazette 08-Jan-1992
England and Wales
Updated: 11 May 2022; Ref: scu.86505
A Party delaying the lodging of his bill of costs should best apply for an extension before the expiry of the time limit, but a failure to do so may not be fatal to such an application.
Gazette 03-Jun-1998, [1998] 1 FLR 636
England and Wales
Updated: 11 May 2022; Ref: scu.84642
The power to order costs against a non-party was not dependant upon the court having first made an order for costs in the proceedings against one or other of the parties. The financial interest of a third party in the proceedings had to be carefully considered, but might be wider than champerty.
Gazette 09-Jun-1999
England and Wales
Updated: 11 May 2022; Ref: scu.84323
The power to order costs against a non-party was not dependant upon the court having first made an order for costs in the proceedings against one or other of the parties. The financial interest of a third party in the proceedings had to be carefully considered, but might be wider than champerty.
Times 08-Jun-1999
England and Wales
Updated: 11 May 2022; Ref: scu.84322
An English court does have power to order a non-resident non-party to contribute to the costs of a case, where that party was domiciled in a convention country. Here the third party was alleged to be the alter ego of the actual party. There was no requirement to have sued that third party first under any convention entered into by the UK.
Gazette 27-Oct-1999, Times 15-Oct-1999, Gazette 03-Nov-1999, [2000] 1 WLR 603, [2000] 1 All ER 37, [1999] 2 All ER (Comm) 673, [2000] 1 Lloyd’s Rep 129, [2000] CP Rep 13, [2000] CLC 22, [2000] 1 Costs LR 37, [2000] IL Pr 490, [2000] Lloyd’s Rep IR 230, (1999) 149 NLJ 1561, Independent 20-Oct-1999, Independent 22-Nov-1999
Supreme Court Act 1981 51, Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (1968) (Cmnd 7395)
England and Wales
Appeal from – National Justice Compania Naviera S A v Prudential Assurance Company Ltd ComC 30-Jul-1999
An application to make a non party liable for costs under section 51(1) Supreme Court Act 1981 is not a claim within Title II of the Brussels Convention, for it is an incidental part of the substantive proceedings already before the Court. It makes . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 May 2022; Ref: scu.84185
Examination of indemnity basis of costs orders and procedures to be used.
Gazette 29-Nov-1995
Updated: 10 May 2022; Ref: scu.83568
Where two parties were jointly and severally liable under a costs order but one party was discharged from liability because of a failure to serve a copy of the bill of costs, that discharge operated entirely for the other liable party also.
Times 16-Nov-1998
England and Wales
Updated: 10 May 2022; Ref: scu.83333
Where two parties were jointly and severally liable under a costs order but one party was discharged from liability because of a failure to serve a copy of the bill of costs, that discharge operated entirely for the other liable party also.
Gazette 25-Nov-1998
England and Wales
Updated: 10 May 2022; Ref: scu.83334
A plaintiff in a personal injury action who did not accept a payment in, and continued, took the risk of costs inherent in such a continuance. She was entitled to costs up to the date of payment in only, and not up to a later date when different medical evidence came to be relied upon.
Times 11-Nov-1999
England and Wales
Updated: 10 May 2022; Ref: scu.82608
An official receiver acting in person and without legal representation in director disqualification proceedings was entitled to claim costs as a litigant in person. The claim would be two thirds of what might have been recovered had he been represented.
Times 18-Mar-1999, Gazette 24-Mar-1999
Litigants in Person (Costs and Expenses) Act 1975 1, Litigants in Person (Costs and Expenses) Act 1975 1
England and Wales
Updated: 10 May 2022; Ref: scu.82065
A defendant wishing to dispute causation and preserve appeal, but nevertheless to seek to agree a level of damages, may make an offer to attempt to agree damages which offer could be considered when finally assessing costs. Payment in not appropriate.
Times 29-Dec-1998, Gazette 27-Jan-1999
England and Wales
Updated: 10 May 2022; Ref: scu.81410
In order to establish a plea of tender before, the defendant had, in addition to making the actual payment into court, also to serve on the claimant the formal notice required under the rules to say that the payment had been made. In the absence of such, he achieved no protection form an award of costs. Notification by means of the pleadings in the action was not sufficient.
Times 10-Dec-1999
Rules of the Supreme Court Ord 18 R 16
England and Wales
Updated: 10 May 2022; Ref: scu.81012
When an appeal is lodged in a VAT dispute, the discretion as to whether to require the appellant to lodge security for costs in the appeal, was a decision exclusively to be decided by the tribunal itself. A decision as to such security could not be challenged within enforcement proceedings.
Times 17-Aug-2000
England and Wales
See Also – Commissioners of Customs and Excise v Anchor Foods Ltd (No 2) ChD 24-Mar-1999
The claimant intended to seek recovery of a very substantial sum from the defendant. On learning of the defendant’s intention to sell its assets, it sought an order freezing them.
Held: The court has the discretion to order a freezing of a . .
See Also – Commissioners of Customs and Excise v Anchor Foods Limited Admn 26-Jun-1998
The court heard an appeal by the Commissioners from the VAT Duties Tribunal that ‘Spreadable butter’ and ‘Ammix butter’ from New Zealand made and imported by the respondent are ‘manufactured directly from milk or cream’, and are not ‘recombined . .
See Also – Commissioners of Customs and Excise v Anchor Foods Ltd (No 3) ChD 8-Jul-1999
The Civil Procedure Rules have not changed the common law rules which say that an interlocutory order for costs could not be varied by another judge sitting at first instance, except only in exceptional circumstances where it appeared for example . .
See Also – Customs and Excise v Anchor Foods Ltd (No.4) ChD 18-Oct-1999
. .
Cited – Commissioners of Customs and Excise v Anglo German Breweries Limited ChD 29-Nov-2002
The respondents appealed against imposition of assessments for the diversion of alcohol products from bonded warehouses without payment of duties. Pretence had been made of deliveries abroad, but the goods were later diverted. The company was . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 May 2022; Ref: scu.79375
The plaintiff had failed to beat a payment in, but the judge refused the defendants their costs after the payment in because a medical report filed before the payment in had accused the claimant of malingering and he claimed to have gone on to disprove that allegation. It was held that this was insufficient to justify departure from the general rule. The malingering had not been the central issue, and that could be dealt with by apportioning the costs between the issues.
Gazette 03-Feb-2000, Times 29-Feb-2000
England and Wales
Updated: 10 May 2022; Ref: scu.78744
The claimant and his former employers had compromised the employee’s claim for damages, but the claimant then sought to sue for stigma damages after these were awarded elsewhere. The general language of the release was sufficiently comprehensive to embrace the claims which Mr Naeem sought to pursue.
Held: Since all the claims known to the parties were identified and met in full, the broad language of the release must be taken to refer to other claims, not at that stage known or identified. However, the claimant’s appeal was allowed since it would have been inconscionable to allow the company to rely on the release. The overriding principle now to be applied was for the judge to attempt to do justice between the parties. Though costs might ordinarily be awarded to a successful party, the court could make a different order if justice so required in the particular facts of any case.
Chadwick and Buxton LJJ,
Times 02-Mar-2000, [2000] ICR 1410
England and Wales
Appeal from – Bank of Credit and Commerce International SA v Ali, Khan and others (No 1); BCCI v Ali HL 1-Mar-2001
Cere Needed Releasing Future Claims
A compromise agreement which appeared to claim to settle all outstanding claims between the employee and employer, did not prevent the employee later claiming for stigma losses where, at the time of the agreement, the circumstances which might lead . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 May 2022; Ref: scu.78148
When a court considered the apportionment of costs, where the claimant was successful but only in respect of some of the heads of claim, the court should consider the following: the reasonableness of the successful party in taking the points on which he was unsuccessful, the way in which he took the point and the manner in which he conducted the case, the reasonableness of taking the point in the circumstances, the extra time taken and costs caused, the inter-relationship of the various points, and the justice in all the circumstances, of depriving the successful party of his costs either entirely or in part.
Times 08-Dec-2000
England and Wales
See Also – Antonelli v Allen and Another CA 16-Oct-2001
Application for security for costs of an appeal. . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 May 2022; Ref: scu.77821
When making a summary assessment of costs, the court should look primarily to the facts of the particular case before it. It would be proper to bear in mind its own experience of comparable cases. Having made that assessment, it was also proper to look at the total claimed to judge whether it was reasonable and proportionate.
Nevertheless, it was wrong to seek to turn such experience into an informal scale of costs. The summary costs jurisdiction is not to be used as a vehicle for the introduction of judicial tariffs for different categories of cases.
Times 09-Jul-2001, Gazette 12-Jul-2001, [2002] FSR 191, [2001] EWCA Civ 721, (2001) 24(7) IPD 24042, [2002] Masons CLR 5, [2001] 2 Costs LR 286
England and Wales
Cited – Bonnier Media Limited v Smith and Kestrel Trading Corporation SCS 1-Jul-2002
The defenders registered internet domain names. The claimants alleged an intended infringement of their trade marks, saying the defenders had a history of opening sites intended to deceive. The defenders who were resident in Greece said that the . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 May 2022; Ref: scu.77563
The parties’ dispute had been settled for a period during the claim, Mrs Barry had not been legally aided, and she wanted to claim her costs from him. She failed to file a bill within the three month period, but the court had ordered her to file and serve a bill for assessment.
Held: Mr Barry’s appeal failed. The fact that the bill was out of time was not conclusive to protect him.
Thorpe, Latham LJJ, Toulson J
Times 08-Jun-2005
England and Wales
Updated: 09 May 2022; Ref: scu.226037
The appellant challenged a refusal to order payment of costs by a shareholder of the defendant company but not a director who, it claimed, had caused the company to continue a court action which was primarily for his personal benefit, and not for that of the company, and funded the company for this purpose.
Held: It was not an erosion of principle to allow such an order. If the shareholder usurped the function of director, he did so at his own risk, and that risk was the possibility of an order for costs of the successful party. The appeal was allowed.
Kennedy LJ, Chadwick LJ, Jonathan Parker LJ
Times 08-Jun-2005
England and Wales
Updated: 09 May 2022; Ref: scu.226035
An order was made for the payment of the successful defendants’ costs, but with liberty to the plaintiff to include those costs in the costs of the action recoverable by the plaintiff from the unsuccessful defendant. The plaintiff had been unable before litigation to assess which of the defendants might be liable. In some circumstances it will be just for a successful plaintiff who has sued two (or more) defendants to be indemnified by the unsuccessful defendant for the costs he or she incurred in proceeding against the successful defendant. This may be a just outcome where the allocation responsibility between the potential defendants is uncertain, making it a reasonable course for the plaintiff to proceed through to trial against more than one defendant.
[1907] 1 KB 264, [1904-7] All ER 44
Cited – Davies v Forrett and Others QBD 23-Jun-2015
The claimant had been very severely injured as a passenger in a car (uninsured) which had attempted an overtaking manouvre past three cars. One pulled out, and the car in which he was a passenger swerved off the road and crashed. Damages were now . .
Cited – Irvine v Commissioner of Police for the Metropolis, Carillion Plc, Town and Country Flooring Limited CA 3-Feb-2005
Peter Gibson LJ said: ‘There is no doubt that the jurisdiction to make a Bullock or Sanderson order has survived the introduction of the CPR, though the exercise of discretion to make such an order must be guided by the overriding objective and the . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 May 2022; Ref: scu.223843
An Arbitrator’s Award on costs was altered by the Court for a variety of errors by the Arbitrator in his original Award, which were held matters of law.
Held: The court set out the principles for such applications: i) For the complaint about a costs award to arise in the form of an appeal, it must be one that can be expressed in the form of a clear question of law. ii) If the complaint is that the decision that the Arbitrator arrived at was wrong because of an error in his appreciation or understanding of the material used as the basis of the award, it may amount to a serious irregularity. But it does not give rise to a question of law. iii) The Arbitrator must not take into account matters which the law or the powers given him by the parties or the general law preclude him from acting on and, conversely, he must not fail to take account of, and give effect to matters that the law requires him to take account of. Moreover, since the tribunal must observe and give effect to the law, the overall discretionary exercise must not be perverse nor one that a reasonable arbitration tribunal properly directing itself could not have reached. iv) A question of law can arise, if it is contended that the Arbitrator misdirected himself by taking into account factors which he should not have done or by failing to take into account factors he should have done (Paragraph 40 of the Judgment).
His Honour Judge Thornton QC
(2001) 82 Con LR 41
England and Wales
Cited – Newfield Construction Limited v Tomlinson, Tomlinson TCC 10-Nov-2004
. .
Lists of cited by and citing cases may be incomplete.
Updated: 09 May 2022; Ref: scu.221023
The court considered the award of costs in a licensing case. Roch J said: ‘There can be no doubt that in civil proceedings between litigants, be it in the High Court or county court, the principle is that costs follow the event. The winning party obtains an order for costs against the losing party unless there are exceptional circumstances or reasons why this should not be so.
Mr Barrie has pointed out that the basis of that principle is this: the losing litigant should not have contested the matter before the court. In my judgment it was wrong for the justices to treat this matter as civil proceedings between two private litigants and to ignore the factor urged upon them by the solicitor appearing for the police authority, namely, that the police have a function which they are required to perform. They are required to supervise the proper conduct of the licensed premises and to object in those cases where there are good grounds for objecting to the renewal of the licence. That that is the police’s function is clearly demonstrated by the provisions in the Licensing Act which give the police power to enter licensed premises whether at the invitation of the licensee or not.
In addition, in my view, the police authority must also bring to the attention of the licensing justices matters of which the police know and which can fairly and properly be said to amount to misconduct by the licensee or those for whom he is responsible.
Such factors emphasise the importance of the police being able to discharge their functions with regard to the licensing laws fairly and properly. Of course, if the evidence indicated that an objection by a police authority to the renewal of the justices’ on-licence was misconceived, that it was without [proper] foundation or born of malice or some improper motive, then it would be just and reasonable for the police to be ordered to pay the costs of the successful licensee . . One of the roles the police must fulfil is to enable justices, who have to consider the renewal of licenses, to make informed decisions.’
Roch J
Times 28-May-1990, (1990) 156 JP 587
England and Wales
Cited – Regina v Merthyr Tydfil Crown Court, ex parte Chief Constable Dyfed Powys Police QBD 9-Nov-1998
The Chief Constable, on good grounds, objected to the transfer of a justices’ on-licence to a Mrs W. Mrs W appealed and the Chief Constable, having objected to the transfer, became a respondent. On the appeal Mrs W contended that, since the conduct . .
Cited – Bradford City Metropolitan District Council v Booth QBD 10-May-2000
The local authority had refused to renew a private hire vehicle licence. That refusal was successfully challenged, and the magistrates had awarded costs on the basis that they should follow the event. The authority appealed.
Held: The . .
Cited – Perinpanathan, Regina (on The Application of) v City of Westminster Magistrates Court and Another CA 4-Feb-2010
The appellant’s daughter had been stopped entering the country with andpound;150,000 in cash. The police sought an order for its forfeiture, suspecting a link with terrorism. The magistrates found no evidence of such, and declined to make the order, . .
Cited – Regina v Methyr Tydfil Crown Court ex parte Chief Constable Dyfed Powys Police Admn 9-Nov-1998
Where the police had exercised their statutory duty in opposing a transfer of justices licence without being unreasonable or acting in bad faith, they should not be ordered to pay the applicant’s costs after a successful appeal to the Crown . .
Cited – Chief Constable of West Midlands Police, Regina (On the Application of) v Coventry Crown Court Admn 6-Jun-2000
The Chief Constable sought judicial review of the award against him of costs after a successful appeal against the revocation of a justices’ on-licence for premises in Coventry. The initial revocation had followed the cautioning of members of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 May 2022; Ref: scu.196680
Lord Bingham set out guidance in respect of costs awarded by magistrates pursuant to section 64(1) of the 1980 Act, saying: ‘I would accordingly hold that the proper approach to questions of this kind can for convenience be summarised in three propositions: 1. Section 64(1) confers a discretion upon a magistrates’ court to make such order as to costs as it thinks just and reasonable. That provision applies both to the quantum of the costs (if any) to be paid, but also as to the party (if any) which should pay them. 2. What the court will think just and reasonable will depend on all the relevant facts and circumstances of the case before the court. The court may think it just and reasonable that costs should follow the event, but need not think so in all cases covered by the subsection. 3. Where a complainant has successfully challenged before justices an administrative decision made by a police or regulatory authority acting honestly, reasonably, properly and on grounds that reasonably appeared to be sound, in exercise of its public duty, the court should consider, in addition to any other relevant fact or circumstances, both (i) the financial prejudice to the particular complainant in the particular circumstances if an order for costs is not made in his favour, and (ii) the need to encourage public authorities to make and stand by honest, reasonable and apparently sound administrative decisions made in the public interest without fear of exposure to undue financial prejudice if the decision is successfully challenged.’
Lord Bingham of Cornhill LCJ, Silber J
[2000] EWHC Admin 444, (2000) 164 JP 485, [2001] LLR 151, (2001) 3 LGLR 8, [2000] COD 338
Magistrates Courts Act 1980 64(1)
England and Wales
Cited – Leeds City Council v Leeds District Magistrates and Another Admn 11-Apr-2013
The court had allowed an appeal against a decision of the appellant’s licensing sub-committee refusing a Premises Licence. The Council now appealed against the award of costs, sayin that no reasons had been given.
Held: There were no findings . .
Applied – Waveney District Council v Lowestoft (North East Suffolk) Magistrates’ Court and Another Admn 25-Nov-2008
The council appealed by case stated against rejection of its claim of an asserted noise nuisance at the defendant’s paint factory. The magistrates had found that the notice had been served on the wrong (though related) company, and refused . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 May 2022; Ref: scu.263517
Their Lordships varied an order for costs already made by the House in circumstances where the parties had not had a fair opportunity to address argument on the point. As the ultimate court of appeal, the House has power to correct any injustice caused by an earlier order. There is no relevant statutory limitation on the jurisdiction of the House in this regard and therefore its inherent jurisdiction remains unfettered. There is a constitutional right to freedom of expression in England.
Lord Kilbrandon
[1972] AC 1136
England and Wales
See Also – Cassell and Co Ltd v Broome and Another CA 24-Mar-1971
. .
See Also – Cassell and Co Ltd v Broome and Another HL 23-Feb-1972
Exemplary Damages Award in Defamation
The plaintiff had been awarded damages for defamation. The defendants pleaded justification. Before the trial the plaintiff gave notice that he wanted additional, exemplary, damages. The trial judge said that such a claim had to have been pleaded. . .
Cited – Regina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) HL 15-Jan-1999
A petition was brought to request that a judgment of the House be set aside because the wife of one their lordships, Lord Hoffmann, was as an unpaid director of a subsidiary of Amnesty International which had in turn been involved in a campaign . .
Cited – Reynolds v Times Newspapers Ltd and others HL 28-Oct-1999
Fair Coment on Political Activities
The defendant newspaper had published articles wrongly accusing the claimant, the former Prime Minister of Ireland of duplicity. The paper now appealed, saying that it should have had available to it a defence of qualified privilege because of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.183298
cw Costs – recovery of costs from a non-party
Phillips J
Unreported, 21 March 1995
England and Wales
Updated: 08 May 2022; Ref: scu.182570
The question was whether or not the litigants had incurred liability for costs in cases in which they had been supported by their employer.
Held: Where the solicitor is on the record for the client in the litigation, there is a rebuttable presumption that the client is liable to pay his solicitors.
Lloyd J
[1983] 1 WLR 1056, [1983] 1 All ER 978
Cited – Miskin, Miskin v St John Vaughan SCCO 18-Sep-2002
The claimants resisted an order to pay the VAT element awarded on the defendant’s legal costs. The revenue had been unable to state clearly whether the defendant would be able to recover VAT, in which case it would not be payable, or the reverse. It . .
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 – Commissioner of the Police of the Metropolis v Logan EAT 31-Oct-2002
The applicant police officer sought an order for his costs. The Commissioner objected, saying that since his costs were being met by the Police Federation, he himself had no costs to claim.
Held: ‘I cannot see that this case differs in any way . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.182889
The landlord sought an injunction against the defendant. The defendant countered, relying upon sec 2(1).
Held: The remedy provided by the section was limited to the award of damages. It could not, therefore, be used to defend an action for an injunction. Whilst he might be entitled in equity to repudiate the lease, he could not repudiate only part of the lease. The landlord might e criticised for its earlier conduct of the case, but rule 44 was concerned with the behaviour of the parties in conducting the litigation itself, and the rule could not be used to overturn the costs consequences because of misbehaviour outside the litigation.
Mr Justice Park
Times 26-Jun-2002, Gazette 27-Jun-2002
Misrepresentation Act 1967 2(1), Civil Procedure Rules 44.3(4)(a)
England and Wales
Updated: 08 May 2022; Ref: scu.174083
Where a party sought disclosure of documents in support an application in a costs taxation, the payee could choose not to disclose, but if he did so the payer was bound by implied undertakings to use them only for the purposes of that application and no other.
Times 26-Nov-1998, [1999] FSR 641, [1999] 3 All ER 154
Cited – Instance and Others v Denny Bros Printing Ltd and Others ChD 3-Feb-2000
The dispute arose between parties to without prejudice communications or who had obtained documents from such persons and were commercially connected with them.
Held: An implied agreement would bind them as parties or by reason of the source . .
Appeal from – Bourns Inc v Raychem Corporation CA 17-Dec-1998
. .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.135877
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 binding. In calculating the ‘A’ element of costs for an in-house solicitor, the appropriate approach was to follow the same method as would be applied in the case of an independent solicitor.
Mr Justice Elias
6 of 200
Cited – Lloyds Bank Ltd v Eastwood ChD 1965
. .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.135975
The applicant had sought and been granted leave to appeal from the Immigration Appeal Tribunal. At a late stage, the Secretary of State agreed that the matter should be reheard. The applicant sought the costs wasted in preparing for the appeal.
Held: It was incumbent upon the Secretary to keep in mind the need to avoid unnecessary incurring of costs, but the normal result of such an application would be that no order for costs would be made. Parties should not be discouraged from seeking settlements. Until the grounds of appeal had been gully considered, the Secretary could not have made a decision, and in this case no costs order should be made.
Potter LJ, Hale LJ
Times 13-Aug-2001
England and Wales
Updated: 08 May 2022; Ref: scu.159481
A client was granted legal aid in a children case, but with a costs limitation of andpound;5,000. The solicitor did not apply to extend that limit, but exceeded it. When the excess was disallowed, he challenged the right of the Board to impose limitations in public law cases.
Held: The word ‘limitation’ must bear its ordinary and natural meaning. The section allowed the Board to impose such limitations, and there was nothing inherently unjust about them, since an amendment could be sought, and further appeal was allowed.
Gazette 08-Mar-2001, Times 16-Mar-2001
England and Wales
Updated: 08 May 2022; Ref: scu.88531
Tom Leech QC (sitting as a Judge of the Chancery Division)
[2020] EWHC 3130 (Ch)
England and Wales
Updated: 08 May 2022; Ref: scu.656298
[2020] EW Misc 9 (CC)
England and Wales
Updated: 08 May 2022; Ref: scu.655644
[2020] EW Misc 13 (CC)
England and Wales
Updated: 08 May 2022; Ref: scu.655651
The solicitors had undertaken six cases for the applicant, Costs had been awarded on the standard basis and a bill prepared on a legal aid basis.
Brooke J
[1993] 1 WLR 1328
England and Wales
Updated: 08 May 2022; Ref: scu.556671
EAT The appellant Council had withdrawn its appeal at the last moment. The successful individual respondent in the Employment Appeal Tribunal, had been given assistance by the CRE, and had herself incurred no costs, whereas the CRE, on her behalf, had. As the jurisdiction under the Rule was only that a payor could be obliged to pay costs and expenses ‘incurred by that other party’, it followed upon the respondent having incurred nothing, that she could be paid nothing.
An order for costs by an Industrial Tribunal can only be made in favour of a party, and not for a non-party, such as a solicitor representing one of the parties.
Slynn J said as to the rules: ‘As a matter of construction, the power to order costs or expenses to be paid to ‘any other party’ must be a party to the proceedings. That seems to us clear as a matter of construction of the rule; but in any event is put beyond doubt if one turns to paragraph 19 of Schedule 11 to the Employment Protection (Consolidation) Act 1978 which is repeating earlier legislation and which refers to the power of this Tribunal to order that costs may be paid to any other ‘party to the proceedings’.
It seems to us here that before we can make an order the local authority shall pay any monies to the Applicant we must be satisfied that she has incurred costs or expenses. The important word is ‘incurred’. Apparently, the position in this particular case is that the Applicant has not incurred any costs or expenses.’
Slynn J
[1980] ICR 519
Employment Appeal Tribunal Rules 1976 2191), Employment Protection (Consolidation) Act 1978
England and Wales
Cited – Taiwo v Olaigbe and Another EAT 5-Mar-2013
EAT Race Discrimination Direct
Indirect
PRACTICE AND PROCEDURE
A Tribunal dismissed claims by a Nigerian it found to have been mistreated when she worked for the Respondents as a domestic worker (a . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.471567
On granting relief from forfeiture, the tenant was ordered to pay the landlord’s costs on an indemnity basis given the very particular circumstances.
Morritt J
[1990] 2 EGLR 39
England and Wales
Updated: 08 May 2022; Ref: scu.425604
A party who discontinues, having allied himself to a claim brought by another, may, nonetheless, be called on to pay the entirety of the costs together with that other where that other is unsuccessful
[2010] EWCA Civ 43
England and Wales
Cited – Tovey and Others v Ministry of Justice QBD 18-Feb-2011
The claimants, serving prisoners, sought damages saying that the refusal to allow them to vote was in infringement of their human rights. The large numbers of claims had been consolidated in London. The claimant sought to withdraw his claim.
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.430521
‘In the event the [disposal] hearing fixed to take place on 2 October 2007, no longer needed for the purpose for which it had been fixed, was, surprisingly, used for another purpose, namely for the district judge to conduct a summary assessment of costs.
Paragraph 13.2 of the Practice Direction appended to Part 44 of the Rules makes clear that the general rule is that the court should make a summary assessment of costs only at the conclusion of a hearing relating to all or part of a substantive claim. Indeed the editors of the White Book 2008 explain, at 44.7.1, that ‘only the judge who hears the case is in a position to make a summary assessment of the costs, otherwise the issue of costs should be sent to a costs judge for consideration’; and a decision of this court, namely Mahmood v. Penrose [2002] EWCA Civ 457, is correctly cited in support of that proposition. The district judge had not heard part or all of the substantive claim. So how could he have conducted a summary assessment? The answer, such as it is, lies in a practice which has developed (so Dr Friston wrote when he drafted the skeleton argument in support of this proposed appeal and so Mr Ralph, who has appeared on behalf of the claimant before me this afternoon, also tells me) in the county courts of Bury, Wigan, Blackburn and surrounding areas. The practice is to allow parties to attend for a summary hearing at a discrete hearing before district judges (perhaps also even sometimes circuit judges) notwithstanding that they have not heard any part of the substantive claim. On the face of it, therefore, the practice is irregular; on the other hand, if the litigating public in the north west is happy with it, there may be something to be said for my turning a blind eye to it. I am clear that it would not be appropriate for me, at this without notice hearing, to slide from the point raised for my consideration into some pronouncement that the practice is unlawful and should stop.’
[2009] EWCA Civ 151
England and Wales
Updated: 08 May 2022; Ref: scu.422374
Commonlii The costs of an application to stay the execution of a decree pending an appeal to the House of Lords were to be paid by the applicant.
[1863] EngR 721, (1863) 1 De G J and S 603, (1863) 46 ER 239
England and Wales
See also – Lady Mary Topham v The Duke Of Portland 30-Jun-1862
The donee of a trust power cannot execute it for an object foreign to purposes for which it was intended, and therefore an ordinary power in a marriage settlement of appointment amongst the children cannot be made subservient to the accomplishment . .
See Also – Duke of Portland v Topham CA 1864
Commonlii The donee of a power of appointing portions among his younger children appointed a double share to a younger child without previous communication with him. But it appeared from the instructions for the . .
See Also – The Duke Of Portland And Others v Lady Mary E Topham And Others HL 6-Apr-1864
A power, to be validly executed, must be executed without any indirect object. The donee of the power must give the property which is the subject of it, as property, to the person to whom he affects to give it.
A created a power to appoint a . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.283376
The Court having held that the plaintiff had not been competent to bring the action, regarded itself as having jurisdiction to make an award of costs against the plaintiff’s solicitors.
[1965] Ch 596
England and Wales
Appeal from – Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) HL 1966
An agency had to be proved in a search to identify an entity which the law recognised (a) existed and (b) was legally responsible for the acts in issue in the proceedings. The House was asked whether the fact that an issue had already been . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.276213
The fact that the claimants were legally aided was immaterial when deciding what, if any, costs order to make between the parties in a case where they were successful and he declined to order that each side should bear its own costs. The court considered what should happen to cases where leave to apply for judicial review had been granted, but the decision had become academic before the hearing came on. Scott Baker J said: ‘The court has power to make a costs order when the substantive proceedings have been resolved without a trial but the parties have not agreed about costs.
It would ordinarily be irrelevant that the claimant is legally aided.
The overriding objective is to do justice between the parties without incurring unnecessary court time and consequently additional costs.
At each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion. In between, the position will, in differing degrees, be less clear. How far the court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of the particular case, not least the amount of costs and the conduct of the parties.
In the absence of a good reason to make any other order the fall back position is to make no order as to costs.
The court should take care to ensure that it does not discourage parties from settling judicial review proceedings for example by a local authority making a concession at an early stage.’
Scott Baker J
(2001) 4 CCLR 258
England and Wales
Cited – Dumbuya, Regina (on the Application of) v London Borough of Lewisham Admn 16-Jul-2008
. .
Cited – E, Regina (On the Application of) v Governing Body of JFS and Another SC 14-Oct-2009
The claimant had successfully challenged the policy of the school as racially discriminatory. He now sought an ancillary order that the respondents should not be allowed to request their costs from the defendant’s appeal whatever the outcome, the . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.272878
Rules of court provided that a person suing as a poor person should not be ordered to pay costs.
Held: The Order did not prevent the mortgagee adding to her security her costs in an action brought by the mortgagor suing as a poor person. Lord Wright MR said: ‘ Now what the learned judge has done is to deny the ordinary right of a mortgagee to add to his security all costs, charges and expenses reasonably and properly incurred in ascertaining or defending his rights, or in recovering the mortgage debt. It is not really a matter which arises in connection with the awarding of costs. If it had been a question of the awarding of costs as between parties to the action the learned judge could not have ordered Mrs. Priestman to pay any costs, because she was proceeding as a poor person, and under the terms of Order XVI r. 28 ‘no poor person shall be liable to pay costs to any other party’; but that is not the question at all. What the learned judge has done here has been to do something entirely different from ordering ordinary costs in the action : he has made an order which has the effect, if it stands, of depriving the mortgagee in this case . . . of the ordinary rights of a mortgagee. The mortgagee here was compelled to defend her rights, or at least cannot be said to have acted unreasonably in seeking to defend her rights.’
Romer LJ said: ‘Where a mortgagee’s title is attacked by somebody who is a stranger to the mortgagee, the circumstances in which the mortgagee is entitled to add his proper costs in defending his title to the mortgagee’s security are stated by Sir W. Page-Wood, V.C., in Parker v. Watkins (John 133, 137) where he said this: ‘ I quite agree that, where a mortgagee has been put to expense in defending the title to the estate, the defence being for the benefit of all parties, he is entitled to charge those expenses against the estate; but if some litigious person chooses to contest his (the mortgagee’s) title to the mortgage, that should not affect the parties interested in the equity of redemption, unless they can be shown to have concurred in or assisted the litigation.”
Lord Wright MR, Romer LJ
[1937] 1 Ch 149
England and Wales
Cited – Saunders (Executrix of the Will of Rose Maude Gallie, Deceased) v Anglia Building Society HL 9-Nov-1970
The Appellant had signed an assignment of her lease in favour of her nephew. She said she thought the effect of it would protect her right to continue to live in the house. She now appealed rejection of her plea of non est factum.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.266401
After a contested application, the court pronounced in favour of the will.
Held: Sir James Hannen did not agree that the first rule or exception applied only in cases where the state in which the deceased left his papers had given rise to the litigation, and said the reason why costs were payable out of the estate was: ‘because the conduct of [the] testator himself caused the litigation.’ and
‘That principle having once been extracted from the decisions, we should no longer slavishly confine ourselves to precisely the same state of facts in applying it, but should apply it to all cases to which it is fairly applicable. The principle being as I have stated, the question to be determined in each case is this: Is the testator, by reason of his conduct, to be considered the cause of the reasonable litigation which has occurred after his death as to the validity of his will?’
. . and ‘Where the facts show that neither the testator nor the persons interested in the residue have been to blame, but where the opponents of the will have been led reasonably to the bona fide belief that there was good ground for impeaching the will, there will be no order as to costs. Of course the opponents must have taken all proper steps to inform themselves as to the facts of the case, but if, having done so, they bona fide believe in the existence of a state of things which, if it did exist, would justify litigation, then, although no blame should attach to the testator or to the executors and persons interested in the residue, each party must bear his own costs.’
The costs of an unsuccessful opposition to a will must be paid out of the estate in cases where the testator, by his own conduct, and habits, and mode of life, has given the opponents of the will reasonable ground for questioning his testamentary capacity.
Sir James Hannen
(1873) LR 3 PandD 28
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: 07 May 2022; Ref: scu.263524
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 the estate, without making a very strong case on [the] facts. The lure of ‘costs out of the estate’ is responsible for much unnecessary litigation.’
Scrutton LJ, Lord Hanworth MR
[1926] P 139
England and Wales
Endorsed – Twist v Tye 1902
The three plaintiff executors, who had unsuccessfully propounded a will, were also residuary legatees under the will, had themselves managed the deceased’s affairs before she made it, and had had ample opportunity of forming an opinion as to her . .
Endorsed – 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 – 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: 07 May 2022; Ref: scu.263526