Category: Costs

Anthony R Timson and Cellxion Limited v MMI Research Limited (Patent): IPO 3 Apr 2013

IPO This decision relates to the issue of costs, the original claim having been withdrawn. The defendants having refused to accept an initial offer requested an off-the-scale payment on the basis that not only was the original claim unlikely to succeed but that it should have been withdrawn following filing of the counterstatement. A subsequent request for disclosure by the claimant was considered by the defendants to be misconceived, and an attempt on their behalf to ‘fish’ for material that had no bearing upon the claims made in their statement of grounds. The Hearing Officer concluded that whilst the request for disclosure was somewhat speculative and could have been avoided this did not warrant an award of costs off the standard scale. An order in line with the scale was therefore made.

[2013] UKIntelP o14413
Bailii

Intellectual Property, Costs

Updated: 14 November 2021; Ref: scu.511187

Elvanite Full Circle Ltd v AMEC Earth and Environmental (UK) Ltd: TCC 14 Jun 2013

Following the proncipal judgment there were disputes as to the basis of assessment of costs and the interaction between the existing costs management order (which approved the defendant’s budget costs of andpound;264,708) and the total costs now sought by the defendant, in the sum of andpound;497,593.66.
Held: The court allowed the claimants to revise/rectify the approved costs management order to make plain that the approved budget excluded the success fees and the ATE insurance premiums.

Coulson J
[2013] EWHC 1643 (TCC), [2013] 4 All ER 765, [2013] TCLR 7, [2013] 4 Costs LR 612, [2013] BLR 473
Bailii
Citing:
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 . .
Cited – Excelsior Commercial and Industrial Holdings Ltd v Salisbury Hammer Aspden and Johnson (A Firm) CA 12-Jun-2002
The court was asked as to when it is appropriate to order costs on an indemnity basis. Waller LJ said: ‘The question will always be: is there something in the conduct of the action or the circumstances of the case which takes the case out of the . .
Cited – Digicel (St Lucia) Ltd and Others v Cable and Wireless Plc and Others ChD 23-Apr-2010
. .
Cited – Euroption Strategic Fund Ltd v Skandinaviska Enskilda Banken Ab ComC 30-Mar-2012
. .
Cited – Henry v News Group Newspapers Ltd CA 28-Jan-2013
. .

Lists of cited by and citing cases may be incomplete.

Costs

Updated: 14 November 2021; Ref: scu.510882

Ireland v David Lloyd Leisure Ltd: CA 14 Jun 2013

The claimant sought damages after being injured working out in the defendant’s gym. A weights machine had chopped off the top of her finger when it came to rest. The defendant appealed against a finding that the warnings had been inadequate.
Held: The appeal failed. The case had been inadequately pleaded, with certain factual elements only becoming clear at trial, but further evidence or an adjournment would not have assisted the defendant.

Arden, Beatson, Ryder LJJ
[2013] EWCA Civ 665
Bailii
Occupiers Liability Act 1957
England and Wales
Citing:
Applied – Beoco Ltd v Alfa Laval Co Ltd and Another CA 21-Dec-1993
The tort loss of profit principles can apply in contract cases for damages. No economic loss damages were to be claimed after a supervening incident prevented a return to work.
As to costs incurred after a late amendment, Stuart-Smith LJ said: . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Costs

Updated: 14 November 2021; Ref: scu.510863

Chartwell Estate Agents Ltd v Fergies Properties Sa and Another: QBD 18 Feb 2014

Claimant’s applications, opposed, were for an extension of time for the exchange of witness statements; the claimant’s application for relief from sanctions for failing to serve witness statements in time, and the claimant’s application for permission to amend its cost budget.

Globe J
[2014] EWHC 438 (QB), [2014] 2 Costs LR 353
Bailii
England and Wales

Costs, Litigation Practice

Updated: 12 November 2021; Ref: scu.533763

Chartwell Estate Agents Ltd v Fergies Properties Sa and Another: CA 16 Apr 2014

Appeal from a decision relating to relief from sanction under CPR 3.9. The context is failure to serve witness statements within the time specified by a prior court order.

Laws, Sullivan, Davis LJJ
[2014] EWCA Civ 506, [2014] 3 Costs LR 588, [2014] CILL 3513
Bailii
Civil Procedure Rules 3.9
England and Wales

Costs

Updated: 12 November 2021; Ref: scu.525103

Peat and Others v Birmingham City Council: EAT 10 Apr 2012

peat_birmEAT2012

EAT Practice and Procedure : Costs
Applications for costs followed the dismissal of complaints of unfair dismissal by ten test Claimants who were employees of R. R sought to implement a Single Status Agreement and invited its employees to accept new terms and conditions of employment. As refused to do so, and were then dismissed but re-engaged on new terms. They were represented throughout by their trade union and there had been extensive collective consultation. The issue at the liability hearing was as to the need for individual consultation. As continued with their claims after receipt of a costs warning letter.
The ET awarded costs against As on two bases: first, that they acted unreasonably in the conduct of the case by pursuing it after receipt of a costs warning letter until the end of the trial; and second, their claims so far as they asserted that events subsequent to the termination of their employment were relevant were misconceived. They were ordered to pay R’s costs occasioned by that assertion, so far as such costs were not included in those awarded on the first basis.
Held, dismissing the appeal:
(1) As acted unreasonably by failing to engage with R’s costs warning letter, which would have led them to an earlier assessment of the merits of their claims. It was not necessary for R to establish that the claims were misconceived.
(2) The ET did not err in law in concluding that all matters post-dismissal were irrelevant to the issue of fairness. There was no basis on which the ET could depart from the principle established by the House of Lords in Devis v Atkins [1977] AC 91 and West Midlands Co-Operative Society v Tipton [1986] ICR 192.

Supperstone J
[2012] UKEAT 0503 – 11 – 1004
Bailii
England and Wales

Employment, Costs

Updated: 11 November 2021; Ref: scu.452509

Oni v NHS Leicester City: EAT 12 Sep 2012

Oni_LeicesterEAT2012

EAT PRACTICE AND PROCEDURE – Costs
The Employment Tribunal should have recused itself from hearing an application for costs, given opinions which it expressed when giving reasons for deciding the case against the Claimant. A Tribunal dealing with the question of liability can and should express itself fully and properly on that issue, making if called for trenchant findings about credibility, and explaining if necessary a case management decision during the hearing even if this involves expressing views about the reasonableness of the conduct of a party which led to the case management decision in question. A Tribunal should not however reach or express concluded views which really anticipate arguments on the question of costs which have not yet been put before it. Porter v Magill [2002] 2 AC 357, Locabail v Bayfield Properties [2000] QB 451 and R v Oshungbure [2005] EWCA Crim 709 considered.
The Employment Tribunal’s finding that the Claimant had means to pay an order for costs (anticipated to be very substantial in amount) could not stand in the absence of proper consideration of her means when the Claimant had asserted she was of limited means. (Suggestion that Tribunals may consider the use of County Court form EX 140 where directions are given in respect of applications for costs orders.)

David Richardson J
[2012] UKEAT 0144 – 12 – 1209
Bailii
England and Wales
Citing:
Cited – Oshungbure and Another, Regina v CACD 10-Mar-2005
The defendant appealed against a confiscation order, saying that the judge having previously expressed strong contrary views of the defendant, should have recused himself from the application, because of the appearance of bias. The judge had . .
Cited – Locabail (UK) Ltd, Regina v Bayfield Properties Ltd CA 17-Nov-1999
Adverse Comments by Judge Need not be Show of Bias
In five cases, leave to appeal was sought on the basis that a party had been refused disqualification of judges on grounds of bias. The court considered the circumstances under which a fear of bias in a court may prove to be well founded: ‘The mere . .
Cited – Porter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .

Lists of cited by and citing cases may be incomplete.

Employment, Costs

Updated: 11 November 2021; Ref: scu.464254

Valentines Homes and Construction Ltd, Regina (on The Application of) v HM Revenue and Customs: CA 31 Mar 2010

The claimant had applied for judicial review of a decision by the defendant to seek to recover a debt from them. The issue had however been settled in the County Court. Costs were ordered against them, and they now appealed. In a small company the chief manager and owner suffered a severe head injury, and his wife had failed to make PAYE payments. They said that HMRC had failed to respond to the details supplied and had pursued a sum which they ought to have known was incorrect.
Held: The appeal succeeded, and the HMRC was ordered to pay the claimants costs, though in a reducded amount.
The court considered that the defendant’s equitable liability policy, if it ever applied, applied in this case: ‘I do not consider that it was an abuse of the process of the court or unreasonable for the appellants to resort to a public law claim in the prevailing circumstances. Despite the good sense and relevance of the equitable liability practice, HMRC had initiated, and despite all reasonable efforts by the appellants to settle for the sum actually due, persisted in their statutory claim for the amount deemed to be due. HMRC failed to respond to the appellants’ proposals for over four months, notwithstanding reminders. They were then supplied with detailed and, it appears, scrupulous, calculations of the sum actually due but persisted in a claim for the sum deemed to be due under Regulation 78.’

Pill, Moore-Bick LJJ, Sir David Keene
[2010] EWCA Civ 345
Bailii
England and Wales
Citing:
Cited – Regina v Huntingdon District Council, Ex parte Cowan QBD 1984
The plaintiff sought judicial review of a refusal of a local authority to grant a liquor licence and a music and dancing licence. Review was sought despite a right of appeal to the Magistrates Court.
Held: If other means of redress are . .
Cited – Wandsworth London Borough Council v Winder HL 1985
Rent demands were made by a local authority landlord on one of its tenants. The local authority, using its powers under the Act, resolved to increase rents generally. The tenant refused to pay the increased element of the rent. He argued that the . .
Cited – Mercury Communications Ltd v Director General of Telecommunications and Another HL 10-Feb-1995
The Secretary of State’s decision on the grant of a Telecommunications licence was challengeable by Summons and not by Judicial Review. A dispute between Mercury and BT as to charges as set by the Director General is a private not a public dispute. . .
Mentioned – Kay and Another v London Borough of Lambeth and others; Leeds City Council v Price and others and others HL 8-Mar-2006
In each case the local authority sought to recover possession of its own land. In the Lambeth case, they asserted this right as against an overstaying former tenant, and in the Leeds case as against gypsies. In each case the occupiers said that the . .
Cited – Boddington v British Transport Police HL 2-Apr-1998
The defendant had been convicted, under regulations made under the Act, of smoking in a railway carriage. He sought to challenge the validity of the regulations themselves. He wanted to argue that the power to ban smoking on carriages did not . .
Cited – Pyx Granite Co Ltd v Minister of Housing and Local Government CA 1958
Pyx Granite had the right to quarry in two areas of the Malvern Hills. The company required permission to break fresh surface on one of the sites.
Held: Conditions attached to the planning permission relating to such matters as the times when . .
Cited – Al Fayed v Advocate General for Scotland (Representing the Inland Revenue Commissioners) SCS 29-Jun-2004
The petitioners reclaimed against an interlocutor refusing their petition for judicial review of the refusal of the Commissioners to abide by an agreement reached with them.
Held: The Revenue were permitted, in exercise of a managerial . .
Cited – Pyx Granite Ltd v Ministry of Housing and Local Government HL 1959
There is a strong presumption that Parliament will not legislate to prevent individuals affected by legal measures promulgated by executive public bodies having a fair opportunity to challenge these measures and to vindicate their rights in court . .

Lists of cited by and citing cases may be incomplete.

Costs, Taxes Management

Updated: 11 November 2021; Ref: scu.406624

Shields Automotive Ltd v Greig: EAT 15 Jul 2011

EAT PRACTICE AND PROCEDURE – Costs
Expenses/costs. Claimant found liable in expenses – on grounds of misconduct- restricted to andpound;4,000 on account of his limited means. Fresh evidence heard on appeal which showed that Claimant had made misrepresentations to the Employment Tribunal regarding the nature and extent of his regular outgoings and regarding disposal of a capital sum shortly prior to hearing. Employment Appeal Tribunal satisfied that, in all the circumstances, no regard could be had to the Claimant’s means and remitted the case to the Employment Tribunal with a direction to remit the assessment of the Claimant’s liability for expenses to the Auditor of the Sheriff Court. Employment Appeal Tribunal also satisfied that Employment Tribunal had erred in taking account of only the Claimant’s income and outgoings when assessing his liability for expenses; they had failed to have regard to his capital but, having decided to have regard to his means, they required to look at his whole means and that included his capital resources.

Smith J
[2011] UKEAT 0024 – 10 – 1507
Bailii
England and Wales

Employment, Costs

Updated: 11 November 2021; Ref: scu.444040

Howe v Motor Insurers’ Bureau: CA 6 Jul 2017

Qualified Costs Shift applied to claim against MIB

The parties had disputed first a claim for compensation against the respondent, and now a costs order and in particular whether the claimant was entitled to the benefit of Qualified One-Way Costs Shifting.
Held: The claimant’s appeal against a ruling that the claim was one for the recovery of a debt succeeded. The 2003 Regulations must be considered against the background of the Directive. Though member states had a discretion as to whether costs should be paid, respect also had to be paid to the principles of equivalence and effectiveness.

Sir James Munby P FD, McFarlane, Lewison LJJ
[2017] EWCA Civ 932, [2017] WLR(D) 456
Bailii, WLRD
Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003, Council Directive84/5/EEC
England and Wales

Costs, Personal Injury, European

Updated: 11 November 2021; Ref: scu.588991

Edwards and Another, Regina (on The Application of) v Environment Agency and Others: SC 15 Dec 2010

Clarification was sought of the costs principles applicable on an application to the House of Lords. The paying party said that it was a requirement of the 1998 Convention under which the application fell, that a remedy should not be available only at prohibitive expense. The costs officers asked how the principle should be applied.
Held: Any limitation to be applied to a party’s costs was to be at the direction of the court only. The task and jurisdiction of the costs officers was limited to those set out in the Supreme Court Rules 2009.
Lord Hope said: ‘The Supreme Court is a creature of statute. But it has inherited all the powers that were vested in the House of Lords as the ultimate court of appeal. So it has the same powers as the House had to correct any injustice caused by an earlier order of the House or this court. It would however be more consistent with the principle which Lord Browne-Wilkinson described to say that the power is available to correct any injustice, however it may have arisen . . ‘

Lord Hope, Deputy President, Lord Walker, Lord Brown, Lord Mance, Lord Dyson
[2010] UKSC 57, [2011] 1 WLR 79, [2010] NPC 125, [2011] 1 All ER 785, [2011] 1 EG 64, [2011] Env LR 13
Bailii, Bailii Summary
Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters of 25 June 1998, Supreme Court Rules 2009
England and Wales
Citing:
Cited – Corner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry CA 1-Mar-2005
The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the . .
Cited – Edwards, Regina (on the Application Of) v Environment Agency and others Admn 19-Apr-2005
. .
Cited – Edwards and Another v The Environment Agency Others CA 27-Jun-2006
. .
At HL – Edwards, Regina (on the application of) v Environment Agency HL 16-Apr-2008
The applicants sought to challenge the grant of a permit by the defendant to a company to operate a cement works, saying that the environmental impact assessment was inadequate.
Held: The Agency had been justified in allowing the application . .
Cited – Edwards and Another, Regina (on The Application of) v The Environment Agency and Others CA 19-Jul-2006
. .
Cited – Edwards and Another, Regina (on The Application of) v The Environment Agency and Others CA 19-Jul-2006
. .

Cited by:
Cited – Austin and Others v Miller Argent (South Wales) Ltd CA 29-Jul-2011
The claimants appealed against refusal of a Group Litigation Order (GLO). Over 500 parties wished to claim in nuisance caused by open cast mining operations conducted by the defendants.
Held: The appeals failed. The making of a GLO is a matter . .
Reference – Edwards v Environment Agency (No 2) ECJ 11-Apr-2013
ECJ Environment – Aarhus Convention – Directive 85/337/EEC – Directive 2003/35/EC – Article 10a – Directive 96/61/EC – Article 15a – Access to justice in environmental matters – Meaning of ‘not prohibitively . .
SC Reference – Edwards and Another, Regina (on The Application of) v Environment Agency and Others (No 2) SC 11-Dec-2013
The court considered the consequences of a finding that the UK was in breach of the Aarhus Convention, as regards the ‘prohibitively expensive’ cost of proceedings. The Agency had given permission for the change of fuel for a cement works to . .
At SC (1) – Edwards v Environment Agency (No 2) ECJ 11-Apr-2013
ECJ Environment – Aarhus Convention – Directive 85/337/EEC – Directive 2003/35/EC – Article 10a – Directive 96/61/EC – Article 15a – Access to justice in environmental matters – Meaning of ‘not prohibitively . .
At SC – European Commission v United Kingdom of Great Britain And Northern Ireland ECJ 12-Sep-2013
ECJ Opinion – Aarhus Convention – Directive 2003/35/EC – Access to justice – Concept of ‘prohibitively expensive’ judicial procedures – Transposition . .
AT SC (1) – European Commission v United Kingdom of Great Britain And Northern Ireland ECJ 13-Feb-2014
ECJ Failure of a Member State to fulfil obligations – Public participation in decision-making and access to justice in environmental matters – Concept of ‘not prohibitively expensive’ judicial proceedings . .
Cited – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) SC 29-Jun-2016
Undisclosed Matter inadequate to revisit decision
The claimant sought to have set aside a decision of the House of Lords as to the validity of the 2004 Order, saying that it had been based on a failure by the defendant properly to disclose matters it was under a duty of candour to disclose.
Costs, Environment, European

Leading Case

Updated: 11 November 2021; Ref: scu.427164

OM Property Management Ltd Re: 36 Culpepper Close: UTLC 3 May 2012

OMUTLC2012

UTLC LANDLORD AND TENANT- service charges – Landlord and Tenant Act 1985 – treatment of in-house solicitor’s legal costs – to be treated in the same way as independent solicitor’s costs – letter charges – whether within terms of lease – fair hearing.

[2012] UKUT 102 (LC)
Bailii
Landlord and Tenant Act 1985
England and Wales

Landlord and Tenant, Costs

Updated: 11 November 2021; Ref: scu.460259

Fosh v Cardiff University: CA 29 Sep 2009

The University sought the costs of having attended at an oral renewal of application for leave to appeal.
Held: The professor had gone ahead despite a warning about it not being justified. She had prepared extensive grounds for the appeal. However the case was already well known to the University, and the bill of costs submitted was very substantially excessive. They had chosen to instruct leading counsel for the application, and the solicitors had expended too much time. The costs payable would be limited to andpound;3000 including VAT.

Wall LJ
[2009] EWCA Civ 940
Bailii
England and Wales
Citing:
At EAT – Fosh v Cardiff University EAT 23-Jan-2008
The professor had sought time off to represent another lecturer claiming race discrimination against the University. The University said that her behaviour created a conflict of interest with the University. She continued and herself claimed . .
Application for Leave – Fosh v Cardiff University CA 3-Feb-2009
Oral application for permission to appeal. Leave Refused. No error of law was identified. The judge refusing leave had warned the claimant as to the possibility of a costs order if she persisted. . .

Lists of cited by and citing cases may be incomplete.

Costs, Employment

Updated: 11 November 2021; Ref: scu.375208

Casqueiro (In A Matter of Wasted Costs) v Barclays Bank Plc: EAT 14 Jun 2012

casqueiroEAT2012

EAT PRACTICE AND PROCEDURE – Costs
Unlike for ‘ordinary costs’ under Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 rule 41(1)(c), there is no power to refer wasted costs ordered under rule 48 to be assessed in the County Court. Further, the Employment Judge failed to consider, applying Ridehalgh v Horsefield [1994] Ch 205, which costs or what part of the costs schedule had been caused by the unreasonable conduct of the Appellant and whether it was just to order him to pay costs. Appeal allowed. Application for a wasted costs order remitted to a different Employment Judge.

Slade DBE J
[2012] UKEAT 0085 – 12 – 1406
Bailii
Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 41(1)(c)
England and Wales
Citing:
Cited – Ridehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .

Lists of cited by and citing cases may be incomplete.

Employment, Costs

Updated: 11 November 2021; Ref: scu.463761

Turning Point Scotland v Perry and Another: EAT 18 Apr 2012

EAT PRACTICE AND PROCEDURE – Costs
Expenses. Whether competent to award expenses where claims withdrawn but not dismissed. Whether circumstances were such as to demonstrate that the bringing and conducting of the claims was misconceived and/or unreasonable. On appeal, held that the Employment Tribunal had erred in both respects. It was competent to seek expenses where claims withdrawn but dismissal not sought and circumstances plainly indicated that the claims were both misconceived and their conduct had been unreasonable.

Lady Smith
[2012] UKEAT 0049 – 11 – 1804
Bailii
England and Wales

Employment, Costs, Scotland

Updated: 11 November 2021; Ref: scu.459932

Drew v Whitbread: CA 9 Feb 2010

The personal injury claimant sought to raise on taxation, matters not put to the trial judge when making the costs order. The personal injuries case had been allocated to the multi-track. The judge at trial had awarded costs on the standard basis, but the costs judge had assessed them as if the case had been in the fast track, relying on a note that the judge had said the claim was exaggerated.
Held: The costs judge was not entitled simply to rule that she was going to assess the costs of trial as if the case were on the fast track. To so rule rescinded in effect the Recorder’s order. In ruling as she did it could not be said she was simply ‘assessing costs on the standard basis taking into account that the case should have been allocated to the fast track’ which in my view is the permissible approach.
The note did not reflect what had been said by the trial judge. It is open to the costs judge to disallow costs relating to an issue on grounds including that the costs were unreasonably incurred. A trial judge may be in a good position to help a costs judge on such a point, but the fact that it was not raised with the trial judge should not in my view preclude a party raising the matter with the costs judge: ‘44.3 and 44.5 are intended to work in harmony and it is intended that the parties’ conduct (for example) may have to be considered under both. If what is sought is a special order as to costs which a costs judge should follow that obviously should be sought from the trial judge. If it is clear that a costs judge would be assisted in the assessment of costs by some indication from the trial judge about the way in which a trial has been conducted, a request for that indication should be sought. But none of this needs a rule as per Henderson v Henderson that a failure to raise a point before the trial judge will preclude the raising of a point before the costs judge.’

Lord Justice Waller, Lord Justice Hooper and Lord Justice Etherton, sitting with Senior Costs Judge Hurst
[2010] EWCA Civ 53
Bailii, Times
Civil Procedure Rules 26.5 26.6 44.3 44.5
England and Wales
Citing:
Cited – Lahey v Pirelli Tyres Ltd CA 14-Feb-2007
The claimant made a large claim for personal injury, but settled for a very small amount, and his costs. The costs judge rejected a submission that he could start by deciding that only 25% of the costs ultimately assessed as being payable.
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 . .
See Also – O’Beirne v Hudson CA 9-Feb-2010
The matter had been settled by a consent order providing for costs on a standard basis, however the costs judge had decided that the matter would if it had proceeded, have been allocated to the small claims track, and therefore limited his costs . .
Cited – Aaron v Shelton QBD 24-May-2004
. .
Cited – Gray v Going Places Leisure Travel Ltd CA 7-Feb-2005
Appeal against wasted costs order. . .
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: . .

Cited by:
Cited – O’Beirne v Hudson CA 9-Feb-2010
The matter had been settled by a consent order providing for costs on a standard basis, however the costs judge had decided that the matter would if it had proceeded, have been allocated to the small claims track, and therefore limited his costs . .

Lists of cited by and citing cases may be incomplete.

Costs

Updated: 11 November 2021; Ref: scu.396631

Gregson v Hussein, CIS Insurance: CA 9 Feb 2010

The claimant appealed against the level of costs awarded to him in succeeding in his claim for damages for personal injury following a road traffic accident. The court had found that though the claimant had succeeded, the substantial dispute had been as to the level of damages where he had been less successful, and had reduced the award accordingly.
Held: The action was resisted to the end on the basis that the claim was fraudulent. That defence failed. The starting point was that the claimant should receive his costs. The claimant had succeeded on each head of his claim. The judge had been wrong to conclude that the second defendant had in effect succeeded on quantum. The correct way for a defendant to protect himself against an exaggerated claim was to make a payment in. It had chosen not to do so, and the appeal succeeded, with an appropriate upward adjustment being made.

Ward LJ
[2010] EWCA Civ 165
Bailii
Civil Procedure Rules 44.35
England and Wales
Citing:
Cited – Painting v University of Oxford CA 3-Feb-2005
The claimant had sought damages for personal injuries, namely injury to her back. Though she was found to have exaggerated her claim, she still recovered more than had been paid in. The defendant appealed a costs order based solely on the size of . .
Cited – Widlake v BAA Ltd CA 23-Nov-2009
The claimant had succeeded in her action for personal injuries, but now appealed against the awarding of costs to the defendant. The dispute had been substantialy as to the nature and effect of her injuries. She had not disclosed earlier injury to . .
Cited – Hall and others v Stone CA 18-Dec-2007
The claimants appealed against a reduction in their costs awards after succeeding in their claims arising from road traffic incidents. The judge had awarded them only 60% of their costs and they appealed submitting that there was no reason why they . .
Cited – Biffa Waste Services Ltd and Another v Maschinenfabrik Ernst Hese Gmbh and others TCC 31-Oct-2008
. .

Lists of cited by and citing cases may be incomplete.

Costs, Personal Injury

Leading Case

Updated: 11 November 2021; Ref: scu.402943

English v Emery Reimbold and Strick Ltd; etc, (Practice Note): CA 30 Apr 2002

Judge’s Reasons Must Show How Reached

In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the decision in their case had been arrived at. Flannery preceded the Act. Reasons may be implicit from the finding itself, and in such cases more detailed reasons may not be necessary. The need varied from case to case. For costs orders, only in those cases where an order with neither reasons nor any obvious explanation was it likely to be appropriate to give permission to appeal for lack of reasons. if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the judge reached his decision. ‘Justice will not be done if it is not apparent to the parties why one has won and the other has lost’. This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge’s conclusion should be stated and the manner in which he resolved them explained. It does require the judge to identify and record those matters which were critical to his decision.

Lord Phillips of Worth Matravers, Master of the Rolls, Lord Justice Latham and Lady Justice Arden
Times 10-May-2002, Gazette 30-May-2002, [2002] EWCA Civ 605, [2002] 1 WLR 2409, [2002] 3 All ER 385, [2003] IRLR 710
Bailii
European Convention on Human Rights Art 6
England and Wales
Citing:
Cited – Flannery and Another v Halifax Estate Agencies Ltd, Trading As Colleys Professional Services CA 18-Feb-1999
A judge at first instance taking a view on an expert’s report should give reasons in his judgment for that view. On appeal, where no reasons had been given, he should be asked to provide reasons by affidavit for the appeal. An inadequately reasoned . .
Cited – Eagil Trust Co Ltd v Pigott-Brown CA 1985
There is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. When dealing with an application in chambers to strike out for want of prosecution a judge should give his reasons in . .

Cited by:
Cited – Budgen v Andrew Gardner Partnership CA 31-Jul-2002
The defendant firm of solicitors appealed an order for costs against it based upon a percentage calculation. They sought an issues based costs order.
Held: Where there was insufficient information upon which to calculate an issues based costs . .
Cited – Checkpoint Ltd v Strathclyde Pension Fund CA 6-Feb-2003
The tenants sought to challenge the arbitrator’s award setting the rent payable under the lease. They claimed that he had improperly refered to his own experience of the market, to support his decision, and this committed a serious irregularity . .
Cited – William Browning, Maureen Browning v Messrs Brachers (A Firm) QBD 15-May-2003
The claimants sought damages for professional negligence, in having failed to pursue a claim for professional negligence against a previous firm of solicitors who had acted for the claimant. . .
Cited – Merer v Fisher and Another CA 13-May-2003
A right of pre-emption had misdescribed the property when it was registered. The land was transferred without regard to the right of pre-emption. It was found as a fact that no money passed for the transfer, and the claimants said the unregistered . .
Cited – The Law Society v Kamlesh Bahl EAT 7-Jul-2003
EAT Sex Discrimination – Direct
The complainant had been suspended from her position as Vice President of the Law Society. The Society and its officers appealed findings of sex and race discrimination . .
Cited – Logan v Commissioners of Customs and Excise CA 23-Jul-2003
The respondent had at the close of the claimant’s case submitted that it had no case to answer. The tribunal agreed and discharged the claim without hearing from the respondent. The employer appealed the EAT’s decision to allow her appeal.
Cited – Grant v Director of Public Prosecutions Admn 22-Jan-2003
The appellant had been convicted of failing to give a breath test, and of driving with excess alcohol. He had falsely claimed that he had had a drink in the five minutes before being asked to take the test, and said the officer should not have . .
Cited – Richardson and Orme v North Yorkshire County Council CA 19-Dec-2003
The claimants appealed against an order dismissing their application for a judicial review of the respondent’s grant of planning permission. They contended that a councillor with an interest in the matter had wrongfully not been excluded from the . .
Cited – Sykes and Another v Taylor-Rose and Another CA 27-Feb-2004
The appellants purchased a property from the respondents. The house had been the site of a partiularly horrendous murder in 1980, but the respondents did not disclose the fact.
Held: The doctrine of caveat emptor still had application. As . .
Cited – Independent Assessor v O’Brien, Hickey, Hickey CA 29-Jul-2004
The claimants had been imprisoned for many years before their convictions were quashed. They claimed compensation under the Act. The assessor said that there should be deducted from the award the living expenses they would have incurred if they had . .
Cited – Richardson v Howie CA 13-Aug-2004
The claimant sought damages for assault. In the course of a tempestuous relationship, she said the respondent had physically assaulted her in Barbados. He was later convicted of soliciting her murder. She sought and was awarded aggravated damages, . .
Cited – Mathialagan, Regina (on the Application of) v London Borough of Southwark and Another CA 13-Dec-2004
Liability Orders were made against the appellant in respect of non-domestic rates in respect of two properties. The orders were made in the absence of the appellant or any representative. Application for judicial review was made to re-open the . .
Cited – Smithkline Beecham Plc and Another v Apotex Europe Ltd and others CA 16-Dec-2004
Following its earlier main judgment in the case, the court made use of the CPR to award costs on an appeal. The overall result had been that the patent was found to be valid but not infringed. There had been huge costs. Smithkline sought costs on an . .
Cited – Stephens and Another v Cannon and Another CA 14-Mar-2005
The claimants had purchased land from the defendants. The contract was conditional on a development which did not take place. The master had been presented with very different valuations of the property.
Held: The master was not entitled to . .
Cited – Golobiewska v Commissioners of Customs and excise CA 6-May-2005
The owner of a motor vehicle which had been seized by Customs applied to have it restored.
Held: the 1994 Act placed the burden on the applicant to establish that she was entitled to the return of her car, but the standard of proof was the . .
Cited – Law Society v Bahl CA 30-Jul-2004
The claimant had succeeded before the employment tribunal in her claim of race discrimination by the respondent and senior officers. She now appealed the reversal of that judgment. The claimant asked the tribunal to draw inferences of discrimination . .
Cited – Baird v Thurrock Borough Council CA 7-Nov-2005
The defendant council appealed a finding of negligence after a dustbinman had been injured when he was struck by a wheelie bin. He had said that a malfunction in the mechanism loading the wheelie bin caused him to be hit by one.
Held: The . .
Cited – Fielden, Graham (Executors of Cunliffe deceased) v Cunliffe CA 6-Dec-2005
The will was executed anticipating the marriage to the respondent, leaving assets on discretionary trusts for the responent and various family members and others. She had come to work for the deceased as his housekeeper, but later they came to . .
Cited – Baxendale-Walker v The Law Society Admn 30-Mar-2006
The solicitor appealed being struck off. He had given a character reference in circumstances where he did not have justification for the assessment.
Held: ‘The appellant knew that Barclays Bank trusted him to provide a truthful reference. . .
Cited – Appiah and Another v Bishop Douglas Roman Catholic High School CA 26-Jan-2007
Black students of African origin, had been excluded from school after an incident. They appealed rejection of their claims for race discrimination and victimisation, saying that they had been at first excluded wrongfully.
Held: ‘Consideration . .
Cited – Hicks Developments Ltd v Chaplin and others ChD 5-Feb-2007
The defendants had succeeded in an application before the Land Registry adjudicator for a strip of land adjoining their property to be registered in their name after a finding that they had successfully established a claim by adverse possession. The . .
Cited – Aziz v Aziz and others CA 11-Jul-2007
The claimant sought return of recordings and of money paid to the defendant through an alleged fraud or threats. She was the former wife of the Sultan of Brunei and head of state, who now sought an order requiring the court to protect his identity . .
Cited – Bryce Ashworth v Newnote Ltd CA 27-Jul-2007
The appellant challenged a refusal to set aside a statutory demand, in respect of his director’s loan account with the respondent company, saying the court should have accepted other accounts to set off against that debt.
Held: A statutory . .
Cited – EE and Brian Smith (1928) Ltd v Hodson and others CA 23-Nov-2007
The defendants appealed grant of an interim injunction to enforce restrictive employment covenants. The second defendant had sold his interest in the claimant company in 2001, but after his consultancy ended, he set up another business, the third . .
Cited – In re A (a Child) (Duty to seek reasons) CA 19-Sep-2007
Where counsel intended to file an appeal and in case of doubt, counsel should consider requesting the judge to amplify or clarfy the reasons for making his own decision before filing his appeal. . .
Cited – Wilson and Another v Burnett CA 24-Oct-2007
Insufficient Evidence of Lottery Contract
The defendant won a large prize at bingo. The claimants said they had a binding oral agreement to pool each others winnings. They now appealed dismissal of their claim.
Held: The evidence had in all material respects conflicted. The . .
Cited – Mubarak v General Medical Council Admn 20-Nov-2008
The doctor appealed against a finding against him of professional misconduct in the form of a sexualised examination of a female patient.
Held: The reasons given were adequate, and the response of erasure from the register was the only one . .
Cited – Phipps v General Medical Council CA 12-Apr-2006
Wall LJ considered the need for the Professional Conduct Committee (PCC) GMC to give clear reasons for its decisions against the background of human rights law, and concluded that the principles enunciated in English were of universal application . .
Cited – ZM v JM; Re M (children) (fact-finding hearing: burden of proof); In re M (a Child) (Non-accidental injury: Burden of proof) CA 19-Nov-2008
When a court considered which of two parents might be responsible for a non-accidental injury to their child, what the court cannot do is decide that one parent is the perpetrator but that the other parent cannot be excluded as the perpetrator. . .
Cited – Burns v Royal Mail Group Plc (No 2) (Formerly Consignia Plc), Humphrey EAT 14-Jan-2004
The hearing was an adjourned second hearing. The appeal on sex discrimination had been dismissed, and the balance of the claim for constructive unfair dismissal was adjourned. At that adjourned hearing the claimant now sought to re-open the claims . .
Cited – Rolls-Royce plc v Unite the Union CA 14-May-2009
The parties disputed whether the inclusion of length of service within a selection matrix for redundancy purposes would amount to unlawful age discrimination. The court was asked whether it was correct to make a declaratory judgment when the case . .
Applied – Green v Half Moon Bay Hotel (Antigua and Barbuda) PC 2-Jun-2009
The claimant appealed on the basis that the appeal court had not given reasons for its decision rejecting his appeal.
Held: There were real grounds to doubt elements of the applicant’s version of events, but in essence the appeal had been . .
Cited – St Albans Girls School and Another v Neary CA 12-Nov-2009
The claimant’s case had been struck out after non-compliance with an order to file further particulars. His appeal was allowed by the EAT, and the School now itself appealed, saying that the employment judge had wrongly had felt obliged to have . .
Cited – Al Rawi and Others v The Security Service and Others CA 4-May-2010
Each claimant had been captured and mistreated by the US government, and claimed the involvement in and responsibility for that mistreatment by the respondents. The court was asked whether a court in England and Wales, in the absence of statutory . .
Cited – Sher and Others v Chief Constable of Greater Manchester Police and Others Admn 21-Jul-2010
The claimants, Pakistani students in the UK on student visas, had been arrested and held by the defendants under the 2000 Act before being released 13 days later without charge. They were at first held incognito. They said that their arrest and . .
Cited – Punch Pub Company Ltd v O’Neill EAT 23-Jul-2010
EAT UNFAIR DISMISSAL
Reasonableness of dismissal
Procedural fairness/automatically unfair dismissal
The Employment Tribunal failed to consider the effect of S98A(2) of the Employment Rights Act . .
Cited – Hazelhurst and Others v Solicitors Regulation Authority Admn 11-Mar-2011
The claimants appealed against disciplinary orders. A member of staff had stolen substantial sums from client account. They had admitted breaches of the Accounts and Practice rules, but personally made good all losses. They said that the Solicitors . .
Cited – Potts v Densley and Another QBD 6-May-2011
potts_densleyQBD11
The claimant had been a shorthold tenant. The landlord had failed to secure the deposit as required, but offered to repay it after the determination of the tenancy. The claimant now appealed against a refusal of an award of three times the deposit. . .
Cited – J K Bansi v Alpha Flight Services EAT 3-Feb-2004
EAT Redundancy – Collective consultation and information. Serota QC J said: ‘In English v Emery Reimbold and Strick Ltd . . the Court of Appeal gave guidance as to the circumstances in which a Judge might be . .
Cited – In re T (A Child: contact) CA 24-Oct-2002
The court considered an appeal in care proceedings, where it was felt that the judge’s reasons for his findings were inadequately set out. Arden LJ pointed out that the principles in Emery Reimbold applied also in care proceedings, and set out . .
Cited – Adebowale v Peninsula Business Services Ltd EAT 20-Jan-2003
Burton J P said that the CA had ‘expressly encouraged Courts considering whether an appeal should proceed on grounds of alleged failure to make findings, or alleged absence of reasons, to consider referring the case back to the lower Court for . .
Cited – Re L and B (Children) SC 20-Feb-2013
The court was asked as to the extent to which a court, having once declared its decision, could later change its mind. Though this case arose with in care proceedings, the court asked it as a general question. The judge in a fact finding hearing in . .
Cited – In re L and B (Children) CA 18-Jul-2012
In care proceedings, there had been protracted fact finding hearings. The judge had given a preliminary report as to her conclusions, but received a communication from counsel for the father requesting her to re-address certain aspects. She later . .
Cited – Sterlite Industries (India) Ltd v Bhatia EAT 27-Mar-2003
The respondent had been found to be unfairly dismissed. The appellants wished to appeal and sought disclosure of certain documents from the respondent’s solicitors. They now appealed against that refusal.
Held: The appeal succeeded. The . .
Cited – The Attorney General for Northern Ireland v Crawford and Another ChNI 4-May-2016
The AG sought leave to appeal against a decision by the tribunal for the removal of a trustee of a police charity.
Held: Permission was given. The decision of the tribunal was open to proper criticism. The appeal raised several important . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Litigation Practice, Costs

Leading Case

Updated: 11 November 2021; Ref: scu.170288

K v K: FD 29 Jul 2016

Costs of enforcement Order

The parties, mother and father, had divorced in Russia, and an order was made or the residence of their daughter with F, with contact for M. After coming to England, M obtained an order to enforce the first order. The court now considerd liability for costs.

MacDonald J
[2016] EWHC 2002 (Fam), [2016] WLR(D) 474
Bailii, WLRD
England and Wales

Children, International, Costs

Updated: 11 November 2021; Ref: scu.569168

Marshall and Co v Revenue and Customs: UTTC 7 Mar 2016

UTTC Costs – settlement of case before First-tier Tribunal – whether HMRC acted unreasonably in defending or conducting the proceedings – Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009, rule 10(1)(b) – whether FTT erred in law in refusing appellant’s application for costs.

[2016] UKUT 116 (TCC)
Bailii
England and Wales

Taxes Management, Costs

Updated: 11 November 2021; Ref: scu.562432

8 Representative Claimants and Others v MGN Ltd: ChD 19 Apr 2016

Application about costs which raises an important point about the applicability of normal conditional fee agreement provisions to privacy litigation generally. Although the application has technically been made by the claimants, the real point which arises is one raised by the defendant, which is whether the defendant newspaper publisher is right to say that the current CFA legislation, which permits the recovery of an uplift and ATE insurance premium is incompatible with Article 10 of the European Convention on Human Rights.
Held: The English legislative regime which permits the recovery of the additional liabilities is not incompatible with Article 10 of the Convention.

Mann J
[2016] EWHC 855 (Ch), [2016] WLR(D) 195
Bailii, WLRD
European Convention on Human Rights 10
England and Wales
Cited by:
Appeal from – Times Newspapers Ltd and Others v Flood and Others SC 11-Apr-2017
Three newspaper publishers, having lost defamation cases, challenged the levels of costs awarded against them, saying that the levels infringed their own rights of free speech.
Held: Each of the three appeals was dismissed. . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Costs, Media

Updated: 11 November 2021; Ref: scu.562456

Jan Sneller v Das Nederlandse Rechtsbijstand Verzekeringsmaatschappij Nv: ECJ 7 Nov 2013

ECJ Legal expenses insurance – Directive 87/344/EEC – Article 4(1) – Insured persons’ freedom to choose a lawyer – Clause in the standard terms and conditions of a contract guaranteeing legal assistance in any inquiry or proceedings by one of the insurer’s employees – Costs relating to legal assistance provided by an external legal adviser reimbursed only where the insurer decides that it is necessary to entrust handling of the case to an external legal adviser

C.G. Fernlund, P
C-442/12, [2013] EUECJ C-442/12
Bailii
Directive 87/344/EEC 4(1)
European

Legal Professions, Costs

Updated: 11 November 2021; Ref: scu.517561

Bilkus v Stockler Brunton (A Firm): CA 16 Feb 2010

Solicitors appealed against the rejection of their claim for an uplift in their fees amounting to andpound;50,000, based on the value element in the transaction in the 1994 Order. The court had to decide whether the matter came under the rules as a contentious or non-contentious matter. There had been a dispute as to the ownership of a share in a company. Litigation was successful, and it was then decided to assert that there had been prejudicial management of the company, but this was settled and much work undertaken as to the valuation of the share. No new terms of acting were supplied.
Held: Whether work done by solicitors is contentious or non-contentious depends not on the nature of that work, but on whether it was done ‘in or for the purposes of proceedings begun before a court or before an arbitrator’. Thus work done in relation to a valuation carried out by an independent expert, even though highly disputed, is not intrinsically contentious. Work done after the completion of proceedings is done not for the purpose of those proceedings, but in consequence of those proceedings, but in this case the valuation was as part of implementing the court’s order, and it was contentious business for which no uplift was available.
There was no error in law in the Master’s refusal to allow the solicitors to amend their bill.

Ward LJ, Longmore LJ, Stanley Burnton LJ
[2010] 1 WLR 2526, [2010] 8 EG 104, [2010] 3 All ER 64, [2010] 2 Costs LR 237, [2010] CP Rep 25, [2010] EWCA Civ 101
Bailii, Times
Solicitors Act 1974 57 59, Solicitors (Non-Contentious Business) Remuneration Order 1994
England and Wales
Citing:
Cited – Polak v Marchioness of Winchester CA 1956
The paying party objected that Counsel’s bill had not been paid at the time the solicitors’ bill was presented.
Held: The court had an inherent jurisdiction to permit a solicitor to withdraw his incorrect bill of costs and to substitute a . .
Cited – O’Neill and Another v Phillips and Others; In re a Company (No 00709 of 1992) HL 20-May-1999
The House considered a petition by a holder of 25 of the 100 issued shares in the company against the majority shareholder. The petitioner, an ex-employee, had been taken into management and then given his shares and permitted to take 50% of the . .
Cited – C v C 1997
The parties contested the costs of conveyancing work undertaken as a result of ancillary relief proceedings. It was assumed that the work was non-contentious. . .
Cited – Re Catlin CA 1854
Sir John Romilly MR said: ‘It is, I am informed, well established in practice that where a solicitor has delivered a bill of costs to his client, and proceedings between the parties have been taken to tax it under the statute, no alteration can be . .
Cited – Sadd v Griffin CA 1928
Farwell LJ said: ‘it is settled beyond controversy that the solicitor is, for the purposes of taxation, bound by the bill that he has delivered and cannot alter it without the leave of the Court or the consent of the party.’ . .
Master’s Decision – Bilkus v Stockler Brunton (A Firm) SCCO 11-Nov-2008
Master Gordon-Saker refused to permit the Solicitors to substitute their proposed amended bill, on the ground that he could not be satisfied that the error in describing the claim for andpound;50,000 as an uplift in relation to all the work that . .
Appeal from – Bilkus v Stockler Brunton (A Firm) ChD 30-Jul-2009
The court upheld the refusal of the master to allow the claimant solicitors to submit an amended bill: ‘In his oral submissions, Mr Stockler . . frankly acknowledged that he had been in error in supposing that it was possible to charge an uplift for . .

Lists of cited by and citing cases may be incomplete.

Costs, Legal Professions

Updated: 11 November 2021; Ref: scu.400993

Kiam II v MGN Ltd (2): CA 6 Feb 2002

An appeal against a damages award in a defamation case had been unsuccessful. The claimant now appealed for the award of indemnity costs. The claimant had made an offer of compromise, which had been ignored by the defendant.
Held: If a party has made a real effort to find a reasonable solution for the circumstances, and the other party has resisted, then risks an order for indemnity costs. However the appellant had not pursued some grounds of appeal, and his behaviour was not such as to justify an indemnity award against him. While ‘conduct, albeit falling short of misconduct deserving of moral condemnation, can be so unreasonable as to justify an order for indemnity costs . . To my mind, however, such conduct would need to be unreasonable to a high degree; unreasonable in this context does not mean merely wrong or misguided in hindsight . .’

Simon Brown, Waller, Sedley LJJ
[2002] EWCA Civ 66, [2002] 1 WLR 2810, [2002] 2 All ER 242
Bailii
England and Wales
Citing:
Cited – Petrotrade Inc v Texaco Ltd CA 23-May-2000
Where a defendant failed to beat a claimant’s part 36 offer to settle, but judgment was given summarily the rule did not mean that the defendant was necessarily to be ordered to pay costs on an indemnity basis, and to pay interest. Summary judgment . .
Cited – McPhilemy v Times Newspapers Ltd and Others CA 7-Jun-2000
The new civil procedure rules did not change the basic rules of evidence. The old rule prevented a party putting in evidence a witness statement which he knew conflicted substantially with the case he wished to place before the jury, and then be . .
Cited – Reid Minty (a firm) v Taylor CA 2002
New CPR govern Indemnity Costs awards
The defendant had successfully defended the main claim and now appealed against the refusal of an order for costs on an indemnity basis even though judge thought that the claimants had behaved unreasonably. He had said that some conduct deserving of . .

Cited by:
Cited – Ali Reza-Delta Transport Co Ltd v United Arab Shipping Co Sag CA 17-Jun-2003
The case had concluded. Offers of settlement had been made and the operative one included an offer on the interest payable. The court came to decide how the interest part of the offer was to be considered when assessing whether the judgment bettered . .
Cited – Simms and others v The Law Society CA 12-Jul-2005
The appellant challenged intervention proceedings brought against his solicitors practice by the respondent. Following disciplinary proceedings, the Society had obtained summary judgment rejecting the application, and awarding costs. The solicitor . .
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.

Costs

Leading Case

Updated: 11 November 2021; Ref: scu.167919

Reed Executive Plc, Reed Solutions Plc v Reed Business Information Ltd, Reed Elsevier (Uk) Ltd, Totaljobs.Com Ltd: CA 14 Jul 2004

Walker v Wilshire still Good Law

After successfully appealing, the defendant claimant argued for a substantial part of its costs, saying that the defendant had unreasonably refused ADR. To pursue this, it now sought disclosure of the details of the without prejudice negotiations between them.
Held: No distinction is to be made between party-to-party negotiations and negotiations conducted within a mediation: both are to be treated as subject to the without prejudice rule. Negotiations protected by a general Without Prejudice agreement should not be used at any point, even on issues of costs: ‘the rule in Walker v Wilshire remains good law and that the Court cannot order disclosure of ‘without prejudice’ negotiations against the wishes of one of the parties to those negotiations. This may (indeed does) mean that in some cases the Court when it comes to the question of costs cannot decide whether one side or the other was unreasonable in refusing mediation. ‘

Lord Justice Auld Lord Justice Rix Lord Justice Jacob
[2004] EWCA (Civ) 887, Times 16-Jul-2004, [2005] FSR 3, [2004] 1 WLR 3026, [2004] 4 All ER 942, [2005] CP Rep 4, (2004) 27(7) IPD 27067, [2004] 4 Costs LR 662, (2005) 81 BMLR 108, [2004] 3 Costs LR 393
Bailii
Civil Procedure Rules 44.3(4)
England and Wales
Citing:
Cited – Walker v Wilsher CA 1889
Letters or conversations which were written or declared to be ‘without prejudice’ may not be taken into consideration in determining whether there is good cause for depriving a successful litigant of his costs.
Lord Esher MR said: ‘The letters . .
Cited – Halsey v Milton Keynes General NHS Trust etc CA 11-May-2004
The court considered the effect on costs orders of a refusal to take part in alternate dispute resolution procedures. The defendant Trust had refused to take the dispute to a mediation. In neither case had the court ordered or recommended ADR.
Cited – Unilever plc v Procter and Gamble Company CA 4-Nov-1999
The defendant’s negotiators had asserted in an expressly ‘without prejudice’ meeting, that the plaintiff was infringing its patent and they threatened to bring an action for infringement. The plaintiff sought to bring a threat action under section . .
Cited – Calderbank v Calderbank CA 5-Jun-1975
Letter Without Prejudice Save as to Costs
Husband and wife disputed provision under 1973 Act, and a summons under section 17 of the 1882 Act. The wife had offered to transfer a house to H occupied by his mother, worth about pounds 12,000, in return for him leaving the matrimonial home. He . .
Cited – Muller and Another v Linsley and Mortimer (A Firm) CA 8-Dec-1994
The plaintiff sued his former solicitors for professional negligence. The damages he sought to recover related to loss he suffered when dismissed as a director of a private company leading to a forced sale of his shares in the company. The plaintiff . .
Cited – Shearson Lehman Hutton v Maclaine Watson (No 2) 1990
When a court orders repayment of a sum, with interest the rate of interest may be the commercial rate, which would normally be 1% above base rate, but is variable on appropriate evidence. . .
Cited – Rush and Tompkins Ltd v Greater London Council and Another HL 1988
Use of ‘Without Prejudice Save as to Costs”
A sub-contractor sought payment from the appellants under a construction contract for additional expenses incurred through disruption and delay. The appellants said they were liable to pay the costs, and were entitled to re-imbursement from the . .
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
See Also – Reed Executive Plc, Reed Solutions Plc v Reed Business Information Ltd, Reed Elsevier (Uk) Ltd, Totaljobs Com Ltd CA 3-Mar-2004
The claimant alleged trade mark infringement by the respondents by the use of a mark in a pop-up advert.
Held: The own-name defence to trade mark infringement is limited. Some confusion may be allowed if overall the competition was not unfair . .
See Also – Reed Executive plc and Reed Solutions plc v- Reed Business Information Ltd, Reed Elsevier (UK) Ltd and totaljobs com Ltd ChD 20-May-2002
The defendant company used the trade marks of the claimant on their web-site to attract visitors. However the trade marks themselves were not visible when the site was browsed, or when it was listed on the search engine.
Held: The use of a . .
See Also – Reed Executive plc and Reed Solutions plc v- Reed Business Information Ltd, Reed Elsevier (UK) Ltd and totaljobs com Ltd ChD 19-Dec-2002
Pumfrey J said: ‘Under Art 5(1) (b) [section 10 (2)] the comparison is not a straightforward mark for sign comparison. On the contrary, it involves a global assessment of the likelihood of confusion as to origin of the goods or services concerned. . .

Cited by:
Cited – Brown v Rice and Another ChD 14-Mar-2007
The parties, the bankrupt and her trustee, had engaged in a mediation which failed at first, but applicant said an agreement was concluded on the day following. The defendants denied this, and the court as asked to determine whether a settlement had . .
Cited – Rolf v De Guerin CA 9-Feb-2011
The parties had disputed a building contract. A Part 36 offer had been made by the builder defendant, but the judgment was for rather less, and the judge awarded the claimant her costs.
Held: The court exercised its discretion to set aside the . .

Lists of cited by and citing cases may be incomplete.

Costs, Litigation Practice

Leading Case

Updated: 10 November 2021; Ref: scu.198844

Steele Ford and Newton v Crown Prosecution Service (No.2): HL 1993

The House considered the court’s jurisdiction to award costs out of central funds.
Held: In this case there was no such power, but: ‘still more important, in the present context, is the special constitutional convention which jealously safeguards the exclusive control exercised by Parliament over both the levying and expenditure of the public revenue. It is trite law that nothing less than clear, express and unambiguous language is effective to levy a tax. Scarcely less stringent is the requirement of clear statutory authority for public expenditure.’ The section gave a court no implied power to make an order out of central funds in civil litigation to compensate a litigant for wasted costs: ‘I will not multiply examples, but I hope I have said enough to explain why I cannot attribute to the legislature any general willingness to provide the kind of publicly funded safety net which the judiciary would like to see in respect of costs necessarily and properly incurred by a litigant and not otherwise recoverable . . Some general legislative provision authorising public funding of otherwise irrecoverable costs, either in all proceedings or in all appellate proceedings, would no doubt be an admirable step in the right direction which the judiciary would heartily applaud. But this does not, in my opinion, justify the courts in attempting to achieve some similar result by the piecemeal implication of terms giving a power to order payment of costs out of central funds in particular statutes, which can only lead to anomalies. . . The courts must always resist the temptation to engage, under the guise of statutory interpretation, in what is really judicial legislation, but this is particularly important in a sensitive constitutional area, such as that with which we are here concerned, where we should be scrupulous to avoid trespassing on parliamentary ground. I would hold that jurisdiction to order payment of costs out of central funds cannot be held to have been conferred by implication on the courts by any of the statutory provisions which I have examined. Indeed, I find it difficult to visualise any statutory context in which such a jurisdiction could be conferred by anything less than clear express terms.’

Lord Bridge
[1994] 1 AC 22, [1993] 2 All ER 769, [1993] 2 WLR 934
Supreme Court Act 1981 51
England and Wales
Cited by:
Cited – Re Law Society of Northern Ireland QBNI 9-Sep-2004
The Law Society of Northern Ireland sought an order to quash a letter from the new NI Legal Service Commission declining to implement the remuneration rates set by the Society. There had been no review of charging rates by the commission for some . .
Cited – Corner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry CA 1-Mar-2005
The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Constitutional, Costs

Leading Case

Updated: 10 November 2021; Ref: scu.214220

DSN v Blackpool Football Club Ltd: QBD 20 Mar 2020

Indemnity costs award on ADR refusal

The claimant succeeded in his claim for damages for historic sexual abuse, and recovered more than his rejected offer for settlement. He now claimed his costs on an indemnity basis.
Held: ‘It is correct that an order for indemnity costs means that CPR44.3(2)(a) does not apply, with the result that the requirement when costs are assessed on the standard basis that costs should be ‘proportionate to the matters in issue’ does not apply. But that does not make me think that it would be unjust to make the order for indemnity costs which I must otherwise make under CPR 36.17(4)(b). It is an inherent feature of indemnity costs that proportionality is not a factor on assessment, and indemnity costs are the usual order for costs when a Defendant fails to beat a Claimant’s Part 36 offer.’
The claimant also sought indemnity costs, saying that the defendant had failed to enter into alternative dispute resolution discussions.
Held: the Defendant in this case failed and refused to engage in any discussion whatsoever about the possibility of settlement. It did not respond to any of the three Part 36 offers (except to reject the final one). It was required by paragraph 4 of the Order of Master McCloud ‘to consider settling this litigation by any means of Alternative Dispute Resolution (including Mediation)’. It was warned by the same Order that if it did not engage in any such means proposed by the Claimant it would have to give reasons, and it was also warned that the reasons it gave might in due course be shown to the trial judge when the question of costs arose. Costs for a limited period were awarded on an indemnity basis.

Mr Justice Griffiths
[2020] EWHC 670 (QB)
Bailii
England and Wales
Citing:
Main Judgment – DSN v Blackpool Football Club Ltd QBD 13-Mar-2020
Action against a football club in respect of historical sexual abuse by a coach against young boys. . .
Cited – Dunnett v Railtrack plc CA 22-Feb-2002
The claimant had appealed a judgment against her. The court itself recommended that the parties use a method of alternate dispute resolution, to avoid the need for appeal. The defendant refused, not wishing to make any payment over and above the . .
Cited – East West Corporation v DKBS 1912 and Another ComC 27-Feb-2002
‘The purpose of the award of an enhanced rate of interest or indemnity costs is to encourage parties to make offers of settlement in the ordinary sense of that word. It is to compensate the claimant who has made an offer that should have been . .
Cited – Excelsior Commercial and Industrial Holdings Ltd v Salisbury Hammer Aspden and Johnson (A Firm) CA 12-Jun-2002
The court was asked as to when it is appropriate to order costs on an indemnity basis. Waller LJ said: ‘The question will always be: is there something in the conduct of the action or the circumstances of the case which takes the case out of the . .
Cited – Macinnes v Gross QBD 3-Feb-2017
Application of costs budget . .

Lists of cited by and citing cases may be incomplete.

Costs

Updated: 10 November 2021; Ref: scu.649909

Singh v Sinel: CA 15 Mar 2016

Appeal by a Jersey advocate against a summary judgment holding him liable for the fees of English counsel whom he had instructed. The central issue in the appeal was whether the judge erred in summarily assessing those fees.

Jackson, Floyd, Macur LJJ
[2016] EWCA Civ 387
Bailii
England and Wales

Legal Professions, Costs

Updated: 10 November 2021; Ref: scu.563249

Topic v Hollyland Pitta Bekery and Others: EAT 19 Mar 2012

EAT PRACTICE AND PROCEDURE – Costs
The Claimant claimed direct sex discrimination and victimisation against her employers. The Employment Tribunal decided that all of her complaints were untrue. They subsequently ordered her to pay the Respondent’s costs, principally on the basis that the claim was misconceived i.e. had no reasonable prospect of success. They had concluded that the Claimant had not deliberately lied but that, for whatever reason, her perception of reality was damaged and wholly unreliable.
Held: on the Claimant’s appeal against the award of costs
(1) The ET were entitled in the exercise of their costs discretion to take into account her mental health and her refusal or failure to seek medical help; there was no breach of Article 8; the material had been put before the ET by the Claimant.
(2) The ET were entitled to take into account the fact that the Claimant had not put forward a grievance. Section 207A of the 1992 Act related to a wholly different situation and did not constitute the only circumstances in which failure to put forward a grievance could be relevant.
(3) The fact that the ET had concluded that the Claimant had not deliberately lied did not prevent the ET from considering that the claim had no reasonable prospect of success or that the claim had been reasonably brought and pursued.

Burke J QC
[2012] UKEAT 0523 – 11 – 1903
Bailii
England and Wales

Employment, Costs, Human Rights

Updated: 10 November 2021; Ref: scu.462304

Widlake v BAA Ltd: CA 23 Nov 2009

The claimant had succeeded in her action for personal injuries, but now appealed against the awarding of costs to the defendant. The dispute had been substantialy as to the nature and effect of her injuries. She had not disclosed earlier injury to her back, and had exaggerated the injury.
Held: The appeal succeeded.
Ward LJ said ‘there may be no need to determine who has been the ‘winner’ of a particular ‘issue’. All the court needs to do is establish whether it was unreasonable for the claimant to pursue her allegation that she had suffered such pain (a) that it justified her case that her pre-existing condition was accelerated by 5 years and (b) that it was of the severity she described in support of her claim for general damages for pain and suffering. If it was unreasonable then that was conduct which the court had to take into account . . The way in which regard is to be had to that conduct is principally to enquire into its causative effect: to what extent did her lies and gross exaggeration cause the incurring or wasting of costs?’ and ‘an order for costs against the claimant is less justified where, as here, the defendant failed to alleviate its predicament by making a proper Part 36 offer and so lost the opportunity provided by the rules of recovering those costs from the claimant. The claimant’s dishonesty must be penalised. The claimant’s failure to negotiate a claim which was clearly capable of being settled must also be recognised. When I balance those factors, and attempt to do justice to both parties and to be fair to them, I conclude that the right order in this case is that there be no order for costs.’

Ward, Smith, Wilson LJJ
[2009] EWCA Civ 1256
Bailii
England and Wales
Citing:
Cited – Molloy v Shell UK Ltd CA 6-Jul-2001
Liability had been conceded by the defendant in the personal injury claim, but the defendant now appealed against the order that it should recover only 75% of its costs incurred after the date of a Part 36 payment made by it. The claimant claimed . .
Cited – Painting v University of Oxford CA 3-Feb-2005
The claimant had sought damages for personal injuries, namely injury to her back. Though she was found to have exaggerated her claim, she still recovered more than had been paid in. The defendant appealed a costs order based solely on the size of . .
Cited – Jackson v Ministry of Defence CA 12-Jan-2006
andpound;150,000 was paid into court but the claimant recovered andpound;155,000 and the judge ordered the defendant to pay 75% of the claimant’s costs. The defendant appealed. The judge had decided that when the claimant gave his evidence there was . .
Cited – Shah v Ul-Haq and Others CA 9-Jun-2009
The defendant appealed against a refusal to strike out the claimant’s action saying that the claimant had been involved in a fraud upon the court in an earlier associated claim.
Held: The Rule gave no power to strike out a claim on such a . .
Cited – Straker v Tudor Rose (A Firm) CA 25-Apr-2007
The defendants had made a Part 36 offer before the commencement of the proceedings and soon after the commencement had paid pounds 9,000 into court under Part 36. The judge awarded over pounds 11,000 and pounds 2,000 of accrued interest. Despite . .
Cited – Hall and others v Stone CA 18-Dec-2007
The claimants appealed against a reduction in their costs awards after succeeding in their claims arising from road traffic incidents. The judge had awarded them only 60% of their costs and they appealed submitting that there was no reason why they . .

Cited by:
Cited – Gregson v Hussein, CIS Insurance CA 9-Feb-2010
The claimant appealed against the level of costs awarded to him in succeeding in his claim for damages for personal injury following a road traffic accident. The court had found that though the claimant had succeeded, the substantial dispute had . .
Binding – Summers v Fairclough Homes Ltd CA 7-Oct-2010
The claimant was said to have fraudulently exaggerated the damages associated with a valid personal injury claim. The defendant argued that the claim should be struck out entirely as a punishment.
Held: The defendant’s appeal failed. The Court . .
Cited – Fairclough Homes Ltd v Summers SC 27-Jun-2012
The respondent had made a personal injury claim, but had then been discovered to have wildly and dishonestly exaggerated the damages claim. The defendant argued that the court should hand down some condign form of punishment, and appealed against . .

Lists of cited by and citing cases may be incomplete.

Costs, Personal Injury

Updated: 10 November 2021; Ref: scu.381297

Halsey v Milton Keynes General NHS Trust etc: CA 11 May 2004

The court considered the effect on costs orders of a refusal to take part in alternate dispute resolution procedures. The defendant Trust had refused to take the dispute to a mediation. In neither case had the court ordered or recommended ADR.
Held: If the parties (or at least one of them) remain intransigently opposed to ADR, then it would be wrong for the court to compel them to embrace it. The claimant in Halsey had sought mediation as a matter of tactics.
Lord Justice Dyson said: ‘The court’s role is to encourage not to compel.’ but ‘In deciding whether to deprive a successful party of some or all of his costs on the grounds that he has refused to agree to ADR, it must be borne in mind that such an order is an exception to the general rule that costs should follow the event. In our view, the burden is on the unsuccessful party to show why there should be a departure from the general rule. The fundamental principle is that such departure is not justified unless it is shown (the burden being on the unsuccessful party) that the successful party acted unreasonably in refusing to agree to ADR.’ An effective compulsion to arbitrate might in human rights law be an unacceptable restraint on a party’s right of access to court.

Lord Justice Laws, Lord Justice Ward, Lord Justice Dyson
[2004] EWCA Civ 576, Times 27-May-2004, Gazette 03-Jun-2004, [2004] 1 WLR 3002, [2004] CP Rep 34, [2004] 4 All ER 920, (2005) 81 BMLR 108, [2004] 3 Costs LR 393
Bailii
European Convention on Human Rights 6(1), Civil Proceure Rules 44.3(2)
England and Wales
Citing:
Cited – Cowl and Others v Plymouth City Council CA 14-Dec-2001
It remains of overriding importance for parties to seek to avoid litigation wherever possible. In this case, a dispute between a local authority and some of the inhabitants of one of its residential homes. The courts now have ample power within the . .
Cited – Dunnett v Railtrack plc CA 22-Feb-2002
The claimant had appealed a judgment against her. The court itself recommended that the parties use a method of alternate dispute resolution, to avoid the need for appeal. The defendant refused, not wishing to make any payment over and above the . .
Cited – Hurst v Leeming (9026) ChD 9-May-2002
The claimant solicitor, had instructed the defendant, a barrister, to represent him in a civil claim. He sought had damages for alleged negligence. He had agreed that the action could not proceed, and the court had to decide the costs. He resisted . .
Cited – Deweer v Belgium ECHR 27-Feb-1980
The applicant, a Belgian butcher, paid a fine by way of settlement in the face of an order for the closure of his shop until judgment was given in an intended criminal prosecution or until such fine was paid.
Held: Since the payment was made . .
Cited – Arthur JS Hall and Co (A Firm) v Simons; Barratt v Woolf Seddon (A Firm); Harris v Schofield Roberts and Hill (A Firm) HL 20-Jul-2000
Clients sued their solicitors for negligence. The solicitors responded by claiming that, when acting as advocates, they had the same immunities granted to barristers.
Held: The immunity from suit for negligence enjoyed by advocates acting in . .
Cited – Royal Bank of Canada v Secretary of State for Defence ChD 2003
The parties had disputed the interpretation of a lease.
Held: Though a point of law had been at issue, the dispute should still have been mediated. The ADR pledge given by Government was something to which he ought to attach ‘great weight’: . .
Cited – Performance Cars Ltd v Abraham CA 28-Jul-1961
The plaintff sought damages after a collision, but the car had already been damaged in a previous accident, the repair of which would cover the second accident. Lord Evershed MR said: ‘In my judgment in the present case the defendant should be taken . .
Cited – Chapman v Hearse, Baker v Willoughby HL 26-Nov-1969
The plaintiff, a pedestrian had been struck by the defendant’s car while crossing the road. The plaintiff had negligently failed to see the defendant’s car approaching. The defendant had a clear view of the plaintiff prior to the collision, but was . .
Cited – Jobling v Associated Dairies HL 1980
The claimant suffered an accident at work which left him with continuing disabling back pain. Before the trial of his claim he was diagnosed as suffering from a disease, in no way connected with the accident, which would in any event have wholly . .
Cited – Fairchild v Glenhaven Funeral Services Ltd and Others HL 20-Jun-2002
The claimants suffered mesothelioma after contact with asbestos while at work. Their employers pointed to several employments which might have given rise to the condition, saying it could not be clear which particular employment gave rise to the . .
Cited – Rahman v Arearose Limited and Another, University College London, NHS Trust CA 15-Jun-2000
The claimant had suffered a vicious physical assault from which the claimant’s employers should have protected him, and an incompetently performed surgical operation. Three psychiatrists agreed that the aetiology of the claimant’s very severe . .
See Also – Halsey v Milton Keynes General NHS Trust and Another v Joy and Another SCCO 11-May-2004
. .

Cited by:
Cited – Couwenbergh v Valkova CA 27-May-2004
The deceased’s family lived in Europe. The defendant had moved in as tenant and had become confidante and friend over many years. A will had been prepared leaving everything to the defendant. That will had been challenged alleging incorrect . .
Cited – Reed Executive Plc, Reed Solutions Plc v Reed Business Information Ltd, Reed Elsevier (Uk) Ltd, Totaljobs.Com Ltd CA 14-Jul-2004
Walker v Wilshire still Good Law
After successfully appealing, the defendant claimant argued for a substantial part of its costs, saying that the defendant had unreasonably refused ADR. To pursue this, it now sought disclosure of the details of the without prejudice negotiations . .
Cited – Daniels v Commisioner of Police of the Metropolis CA 20-Oct-2005
The claimant appealed refusal of her application that the defendant be disallowed any of his costs. As a serving officer she had sought damages for negligence having been injured falling from her police horse. The defendant had rejected three . .
Cited – Brown v Rice and Another ChD 14-Mar-2007
The parties, the bankrupt and her trustee, had engaged in a mediation which failed at first, but applicant said an agreement was concluded on the day following. The defendants denied this, and the court as asked to determine whether a settlement had . .
Cited – Vale of Glamorgan Council v Roberts ChD 1-Dec-2008
. .
Cited – Corby Group Litigation v Corby District Council (Costs) TCC 11-Aug-2009
. .
Cited – Gil v Baygreen Properties Limited (In Liquidation) and Others ChD 19-Aug-2004
. .
Cited – Burchell v Bullard and others CA 8-Apr-2005
Each side had succeeded in part on their claims and counterclaims, but the Respondent was andpound;5,000 out of pocket. Each party had been ordered to pay the costs of the other.
Held: The appeal succeeded. The judge had correctly recognised . .
Cited – Askey v Wood CA 21-Apr-2005
. .
Cited – LMS International Ltd and others v Styrene Packaging and Insulation Ltd and others TCC 30-Sep-2005
. .
Cited – Brown v MCASSO Music Productions CA 10-Nov-2005
. .
Cited – Hickman v Blake Lapthorn QBD 17-Jan-2006
. .
Cited – Aird and Another v Prime Meridian Ltd TCC 19-Sep-2006
. .
Cited – P4 Ltd v Unite Integrated Solutions Plc TCC 17-Nov-2006
. .
Cited – Allen v Colman Coyle Llp SCCO 29-Jun-2007
. .
Cited – Nigel Witham Ltd v Smith and Another (No. 2) TCC 4-Jan-2008
. .
Cited – Malmesbury and Others v Strutt and Parker (A Partnership) QBD 18-Mar-2008
. .
Cited – Cumbria Waste Management Ltd and Another v Baines Wilson (A Firm) QBD 16-Apr-2008
The court was asked to consider whether documents generated in a mediation could be disclosed by one of those parties in later proceedings against solicitors for negligence in drafting and negotiation and agreement with the other party, which gave . .
Cited – Rolf v De Guerin CA 9-Feb-2011
The parties had disputed a building contract. A Part 36 offer had been made by the builder defendant, but the judgment was for rather less, and the judge awarded the claimant her costs.
Held: The court exercised its discretion to set aside the . .
To be revisited – Wright v Michael Wright Supplies Ltd and Another CA 27-Mar-2013
The appellant said that the judge had erred in allowing only written evidence. The case was long running, complex, unwieldy and the intransigent parties were each acting as litigants in person.
Held: The court asked whether mediation might not . .
Cited – Mann v Mann FD 5-Mar-2014
The parties had agreed to an order settling the ancillary relief application with enforcement first to be through mediation. W applied to court for enforcement rejecting H’s request for mediation. . .

Lists of cited by and citing cases may be incomplete.

Arbitration, Costs, Human Rights, Litigation Practice

Leading Case

Updated: 10 November 2021; Ref: scu.196701

Marley v Rawlings and Another (2): SC 18 Sep 2014

The parties had disputed the validity of a will, and the successful wife of the deceased argued that her costs should be paid by those challenging the will rather than from the estate.
Held: The solicitors (or their insurers) who had made the error should bear the costs of such an action. However, the contingency fee aarrangements between the defendants’ solicitors and their counsel included a 100% uplift for ‘success’ where costs were ordered out of the estate. Since the agreement between the defendants and their solicitors could render the former liable for the latter’s disbursements, the proper order for costs was that the insurers, while paying the claimant’s costs and the defendants’ solicitors’ disbursements, should pay the unsuccessful defendant’s counsel’s base fees only where they agreed to disclaim the success fees they might otherwise have claimed.

Lord Neuberger, Lord Clarke, Lord Sumption, Lord Carnwath, Lord Hodge
[2014] WLR(D) 402, [2014] UKSC 51, [2015] 1 AC 157, [2014] Fam Law 1682, [2014] WTLR 1511, [2014] 3 WLR 1015, [2014] 4 All ER 619, [2014] 5 Costs LR 905
Bailii Summary, SCBlog, Bailii, Bailli Summary, WLRD
England and Wales
Citing:
At CA – Marley v Rawlings and Another CA 2-Feb-2012
Mr and Mrs Rawlings had made wills in substantially similar format, but, mistakenly, they each executed the will intended for the other. After Mr Rawling died, the family disputed whether he had made a will. Mrs Rawling applied for rectification of . .
At ChD – Marley v Rawlings and Another ChD 3-Feb-2011
A married couple had purported to make mirror wills, but by mistake had each executed the will of the other. Rectification was now sought.
Held: The will did not comply with the 1837 Act and should not be admitted to probate. The testator had . .
Main Judgment – Marley v Rawlings and Another SC 22-Jan-2014
A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .
Cited – Bimson, Re The Estate of ChD 26-Jul-2010
Application to rectify the will under the 1982 Act.
Held: The application succeeded. Henderson J said: ‘this case falls comfortably within the scope of clerical error within the meaning of section 20(1)(a). It appears to me plain that David . .

Cited by:
Cited – Trump International Golf Club Scotland Ltd and Another v The Scottish Ministers (Scotland) SC 16-Dec-2015
The appellant challenged the grant of permission to the erection of wind turbines within sight of its golf course.
Held: The appeal failed. The challenge under section 36 was supported neither by the language or structure of the 1989 Act, and . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Costs

Leading Case

Updated: 10 November 2021; Ref: scu.536730

Duncan v Ministry of Defence: EAT 2 Oct 2014

duncan_modEAT1410

EAT Sex Discrimination : Jurisdiction – Section 121 Equality Act 2010 – purposive construction required to achieve lawful balance between the statutory aim of enabling the Armed Forces to determine complaints internally prior to litigation and a complainant’s right of access to a Court/Tribunal within a reasonable time. That could be achieved by reading section 121(2) EqA as operating as a jurisdictional bar only where the right (under the Armed Forces Redress of Individual Grievances (Procedure and Time Limits) Regulations 2007) to make a referral to the Defence Council has arisen and has not been exercised.
The Employment Judge’s failure to give this provision such a purposive construction had led him to strike out the Claimant’s Employment Tribunal claim. It was now common ground that the Employment Judge’s ruling amounted to an error of law and the appeal should be allowed on this basis.
Costs – given the outcome of the appeal, the Employment Tribunal’s costs award against the Claimant cannot stand. By consent the Respondent is ordered to pay the Claimant’s costs of the appeal and those occasioned by its application to strike out the claim before the Employment Tribunal.

Eady QC HHJ
[2014] UKEAT 0191 – 14 – 0210
Bailii
Equality Act 2010 121, Armed Forces Redress of Individual Grievances (Procedure and Time Limits) Regulations 2007
England and Wales

Employment, Armed Forces, Costs, Discrimination

Updated: 10 November 2021; Ref: scu.537758

Deman v Victoria University of Manchester and others: EAT 24 Jun 2008

deman_victoriaEAT2008

EAT PRACTICE AND PROCEDURE: Costs
If a Tribunal considers that the conduct of the proceedings by a party or his representative has been vexatious, abusive, disruptive or unreasonable, the Tribunal is under a duty to consider making an award of costs irrespective of the terms of the opposing party’s application, if any, provided that it is satisfied that the opposing party has incurred costs of at least the amount which it awards.

Bean J
[2008] UKEAT 0211 – 06 – 2406
Bailii
Cited by:
Cited – Lisboa v Realpubs Ltd and Others EAT 11-Jan-2011
lisboa_realpubsEAT11
EAT SEXUAL ORIENTATION DISCRIMINATION
Whether Respondent’s policy of encouraging a wider clientele at a formerly gay pub involved less favourable treatment of gay customers causing the Claimant to resign in . .

Lists of cited by and citing cases may be incomplete.

Employment, Costs

Updated: 10 November 2021; Ref: scu.277408

Lingfield Properties (Darlington) Ltd v Padgett Lavender Associates: QBD 18 Nov 2008

Application for non-party costs order against litigation funder. The third party denied that he was a person against whom an order could be made, and denied his formal involvement in the companies funding the litigation.
Held: Such an order must be exceptional, and is not to be made simply because a party has funded the action. The proceedings were speculative and had been pursued unreasonably, and under the direction of the third party. However in the action he had not behaved improperly, and had fulfilled a role akin to that of a solicitor. The third party costs application was refused.

Tugendhat J
[2008] EWHC 2795 (QB)
Bailii
Supreme Court Act 1981 51, Civil Procedure Rules 48.2.(1)
England and Wales
Citing:
Cited – Petromec Inc v Petroleo Brasileiro Sa Petrobras CA 19-Jul-2006
A Mr Efremovich, a third party to the action was ordered to pay the costs of Petrobras and Brasoil which on the failure of its claim against them had been ordered to be paid by Petromec. The judge found that Mr Efromovich controlled the proceedings . .
Cited – Symphony Group Plc v Hodgson CA 4-May-1993
Nine rules were set out for allowing a costs order against someone who is not a party to the action. Such orders should be exceptional. The normal rule is that witnesses in either civil or criminal proceedings enjoy immunity from any form of civil . .
Cited – Metalloy Supplies Ltd (In Liquidation) v MA (UK) Ltd CA 7-Oct-1996
A costs order against liquidator of company in litigation is only rarely to be given. The court should ask who is the ‘real’ party to the litigation.
Millett LJ said: ‘[An order] may be made in a wide variety of circumstances where the third . .
Cited – Dymocks Franchise Systems (NSW) Pty Ltd v Todd and others (No. 2) PC 21-Jul-2004
PC (New Zealand) Costs were sought against a non-party, following an earlier determination by the Board.
Held: Jurisdiction to make such an order was not complete. Where the order sought was against a . .
Cited – Murphy, and Murphy v Young and Co’s Brewery Plc, Sun Alliance and London Insurance Plc CA 20-Nov-1996
When an unsuccessful party has had its legal costs funded under legal expenses insurance, should the insurer be held liable to pay the successful party’s costs? The insurer had not instigated the litigation, nor controlled it, and could not be . .

Lists of cited by and citing cases may be incomplete.

Costs, Civil Procedure Rules

Updated: 10 November 2021; Ref: scu.278223

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 they were not, as it turned out, reasonably incurred because they had been incurred in an action that sought an exaggerated sum which should never have been claimed?’ The landlord had pursued an action for very substantial dilapidations, but had eventually recovered a comparatively tiny sum. The court had found that the landlord knew its claim was unsubstainable. In the course of proceedings costs orders had been made against the tenant. The costs master had then reduced the awards of interim costs to the climant to nil. The claimant appealed.
Held: The court should give ‘proper effect to the order of the Court of Appeal, which involves construing it in its proper context. That is the proposition which underlies Mr Hutton’s constant refrain to the effect that that order is self-contained (my expression, not his, but which he accepted was the gist of what he was saying). The citations from the modern Court of Appeal cases extracted above, and Cope, make it clear that the important thing to do is to construe the order. If the effect of the order is that it was intended to take effect whatever the outcome of the action, then the Master’s order was wrong. He should have assessed the costs of the issue, by reference to their reasonableness and propriety within the issue, but not by reference to the ultimate fate of the action, no matter how misconceived it might have been. It is the duty of the assessing tribunal to carry out the assessment which the previous court has directed it to carry out.’

Mann J
[2009] EWHC 2014 (Ch), [2009] 45 EG 106
Bailii
England and Wales
Citing:
Cited – Booth v Britannia Hotels Ltd CA 26-Mar-2002
The claimant had made a large personal injury claim (pounds 617,000) but was forced to reduce it to all but nothing when video evidence was provided shortly before trial. She accepted a payment in of pounds 2,500 and other benefits worth just over . .
Cited – Re U (A Child) CA 24-Feb-2005
The applicant sought a second appeal saying there was fresh evidence.
Held: Applying Taylor -v- Lawrence, a second appeal could only be entertained where it was shown that the earlier judicial process had been critically undermined. It must be . .
Cited – Aaron v Shelton 2004
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. . .
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: . .
Cited – Cope v United Dairies 1963
Megaw LJ said: ‘Mr Hames agreed that the taxing master could not properly refuse to carry out an order for taxation, in whole or in part, because he considered it to be wrong or ultra vires, and the same applies to a court on review. With that . .
Cited – Koshy v Deg-Deutsche Investitions – Undentwicklungs Gesellschaft Gmbh CA 24-Nov-2003
One party had been ordered to pay the costs of an unsuccessful attempt to discharge injunctions and strike out the action. The applications failed (badly) and the costs were ordered to be taxed and paid forthwith. Later there was a trial, and the . .
Cited – Lahey v Pirelli Tyres Ltd CA 14-Feb-2007
The claimant made a large claim for personal injury, but settled for a very small amount, and his costs. The costs judge rejected a submission that he could start by deciding that only 25% of the costs ultimately assessed as being payable.
See Also – Business Environment Bow Lane Ltd v Deanwater Estates Ltd CA 27-Jun-2007
Enforcement of repairing obligations in lease after assignments, and the use of collateral contracts. Sir Andrew Morritt C said: ‘The law relating to collateral contracts is well-established but in connection with sales or leases of land needs to be . .
See Also – Business Environment Bow Lane Ltd v Deanwater Estates Ltd TCC 31-Jul-2008
The court considered liability under a repairing covenant at the termination of a lease. . .

Lists of cited by and citing cases may be incomplete.

Costs

Updated: 10 November 2021; Ref: scu.368636

D’Silva v NATFHE (Now UCU) and Others: EAT 29 Jul 2009

dsliva_natfheEAT2009

EAT PRACTICE AND PROCEDURE: Costs
The fact that an employment tribunal made an award of costs on the basis that the claim had been misconceived from the start did not support an allegation of bias against the tribunal.
An employment tribunal was entitled to make an award of costs notwithstanding that the chairman who had presided at the liability hearing had retired on the grounds of ill health and a new employment judge had been appointed to sit with the original lay members to hear the costs application.
In making an award of costs an employment tribunal was not obliged to enquire into the paying party’s means of its own motion where substantial submissions had been made as to costs but no argument about means had been raised.

[2009] UKEAT 0126 – 09 – 2907
Bailii

Employment, Costs

Updated: 10 November 2021; Ref: scu.377547

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 migrant domestic worker visa having been obtained to permit her to do so) that her mistreatment constituted either direct or indirect discrimination. On appeal, her argument that she was mistreated because she was on a migrant worker visa, and that this was indissociably linked with her race or national origin so as to be direct discrimination, was rejected: the tribunal had found that she was mistreated not because of her race but because of her vulnerability. Although being a migrant worker was part of the background to that vulnerability, it was not itself a reason for the mistreatment. There was no other basis for the claim of direct discrimination. However, the tribunal had not approached indirect discrimination correctly, since it had not identified the PCP it thought may have been applied; and the conclusion (that there was no such discrimination) was not plainly and obviously right. The PCP contended for on appeal (the practice of mistreating those on a migrant domestic worker visa) was rejected, since it assumed that which it sought to prove, or showed no comparative disadvantage; and a PCP of employing those on a migrant domestic worker visa would not suffice either. Although the Appeal Tribunal was just persuaded that the group (those who worked under a domestic migrant worker visa) arguably contained disproportionately more of those who would be disadvantaged because of their vulnerability than would those who were not working on such a visa, this was no basis for remission in this case in which no tenable PCP had been proposed or argued below.
On a second appeal, the claimant challenged a decision by the Tribunal to refuse costs on the basis that the rule required her to have incurred costs personally, whereas they had been borne by the Law Centre, funded in part by the Legal services Commission. It had relied on Walsall Borough Council v Sidhu [1980] ICR 519. Held, allowing the appeal, that the rule had changed and as a matter of construction permitted a claim for costs where they had been incurred by another on behalf of the party claiming costs.

Langstaff P J
[2013] UKEAT 0254 – 12 – 0503
Bailii
England and Wales
Citing:
Cited – Walsall Borough Council v Sidhu EAT 1980
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 . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, Costs

Updated: 10 November 2021; Ref: scu.471566

Aidiniantz v The Sherlock Holmes International Society Ltd: ChD 15 Jun 2016

Solicitor does not warrant his client’s case

The company had appealed from an order for its winding up. The solicitors had acted on the instructions of a director, whose authority was now challenged.
Held: The claim for costs against the solicitors failed. They had been properly retained and had had continuing ostensible authority. The litigation which followed had been as to the very issue now put. A solicitor does not warrant that his client has a good case.

Mark Anderson QC
[2016] EWHC 1392 (Ch), [2016] WLR(D) 526
Bailii, WLRD
England and Wales
Citing:
Main Judgment – The Sherlock Holmes International Society Ltd v Aidiniantz ChD 23-May-2016
The company appealed against a winding up order . .

Cited by:
Applied – Zoya Ltd v Sheikh Nasir Ahmed (T/A Property Mart) and Others ChD 7-Oct-2016
No warranty of authority on claimas to authority
Complaint was made that proceedings had been made by the claimant company when the solicitors acted on the instructions of somebody describing himself wrongly as a director of the company.
Held: The defendant’s request for costs against the . .

Lists of cited by and citing cases may be incomplete.

Costs, Legal Professions

Updated: 10 November 2021; Ref: scu.565851

Irish Reel Productions Ltd v Capitol Films Ltd: ChD 10 Feb 2010

The petitioner’s winding-up petition had been dismissed on the defendant company being put into administration. The petitioner asked for its costs to be paid as an administration expense payable in priority to the administrator’s expenses.
Held: Rule 2.12 must be read purposively. The order could be made, though not with the priority requested. Briggs J said: ‘an administration on the application of the company may be the last stage in a long process whereby the company comes to be subjected to an insolvency process in the interests of its creditors, the earlier stages of which may include the bringing of a winding-up petition, and the prosecution of that petition in the face of dogged resistance by the company itself. In my judgment one of the purposes for which Rule 2.12(1)(e) permits a person who has presented a winding-up petition to appear at the hearing of an administration application is to enable that person to seek an order for the costs of that petition, which will ordinarily be dismissed at the hearing of the administration application, if an administration order is made.’

Briggs J
[2010] EWHC 180 (Ch), Times 28-Apr-2010, [2010] Bus LR 854
Bailii
Insolvency Rules 1986 (SI 1986 No 1925) 2.12(3), Insolvency Act 1986
England and Wales
Citing:
Cited – Re Gosscott (Groundworks) Ltd 1988
The court had jurisdiction under section 51 to order that the costs of administration proceedings overtaken by a compulsory liquidation could be ordered to be treated as costs in the winding-up. . .
Cited – Kahn and Another v Commissioners of Inland Revenue; In re Toshoku Finance plc HL 20-Feb-2002
A company went into liquidation, being owed substantial sums by another company in the same group, but itself insolvent. A settlement did not include accrued interest, but was claimed to be taxed as if it had, and on an accruals basis. If so, was . .
Cited – Unadkat and Co (Accountants) Ltd v Bhardwaj and Another ChD 11-Oct-2006
Section 651 was broad enough to enable the court to order that the costs of having the dissolution of a company declared void be treated as an expense in the winding-up, notwithstanding the decision of the House of Lords in Re Toshoku Finance UK plc . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Costs

Updated: 09 November 2021; Ref: scu.396747

Bolt Burdon Solicitors v Tariq and Others: QBD 13 Apr 2016

Caim by solicitors for professional fees under a Contingency Fee Agreement entered into with their clients, the defendants, in respect of non-contentious business in recovering compensation from Allied Irish Bank Plc under the Financial Conduct Authority Redress Scheme. The complaint was that AIB had mis-sold the defendants an ‘interest rate swap’.

Spencer J
[2016] EWHC 811 (QB), [2016] 2 Costs LR 359
Bailii
England and Wales

Costs

Updated: 09 November 2021; Ref: scu.562791

Tim Martin Interiors Ltd v Akin Gump Llp: ChD 17 Nov 2010

The company borrowed money from a bank, who instructed the defendants to act in the loan. On recovering the loan, the borrowers challenged the amounts charged by the solicitors. The court was asked what were the powers for a third party paying a solicitor’s bill to challenge the amount, and how any reduction might be applied.
Held: In considering the effect of an extraneous agreement entitling a client to pass on costs, the court is not determining how much the client is liable to pay under his retainer with the solicitor; but which items of the bill can be passed on to the third party. The costs master had incorrectly confused two questions, the assessment of the bill and the identification of which items in it were payable by the third party.
CPR 48.3 allows the court to assess the costs payable under a contract. But CPR 48.3 (2) excludes a contract between a solicitor and his client, and the parties to an assessment under CPR 48.3 will be the parties to the contract in question; and that section 71 (as to the contract of retainer between solicitor and client) is not a substitute for an assessment under CPR 48.2. The Bank (or its assignees) should have been parties to the assessment of how much the Bank was entitled to pass on to TMIL, but were not. There was no objection to an assessment under section 71 and an assessment under CPR 48.3 from taking place simultaneously, provided that the costs judge recognises that the two assessments are conceptually distinct.

Lewison J
[2010] EWHC 2951 (Ch)
Bailii
Solicitors Act 1974 70, Civil Procedure Rules 48.3
England and Wales
Citing:
Cited – In re Gray 1901
The tenant of a mine was liable to pay the landlord’s costs of the grant of the lease. The tenant’s liability was based on custom, which required the tenant to pay the costs of drawing, settling and completing the lease. The tenant asked for an . .
Cited – In Re Longbotham and Sons CA 1904
The borrower had agreed to pay the lender’s solicitors bill, but challenged it saying that it included elements for personal work.
Held: The personal items were excluded. Costs which are outside the scope of the third party’s liability ‘would . .
Cited – Re Cohen and Cohen CA 1905
Mrs Cotton sued Mr Edwardes for breach of contract; and he claimed against her as to the ownership of a song. Mrs Cotton authorised her solicitors to incur liabilities for unusual expenses, including the employment of leading and junior counsel to . .
Cited – Gomba Holdings (UK) Ltd v Minories Finance Ltd (No 2) CA 1993
A clause entitling a mortgagee to recover legal costs from the mortgagor did not extend to costs that were unreasonably incurred or which were unreasonable in amount. Whether costs were unreasonably incurred or were unreasonable in amount was to be . .
Cited – Re Hirst and Capes 1908
If there is an admitted agreement for payment of a solicitor’s costs by a third party, and the only question is its true construction, then the costs judge is entitled to decide the question of construction as part of the process of assessment . .
Cited – Re Cohen and Cohen CA 1905
Mrs Cotton sued Mr Edwardes for breach of contract; and he claimed against her as to the ownership of a song. Mrs Cotton authorised her solicitors to incur liabilities for unusual expenses, including the employment of leading and junior counsel to . .
Cited – Reynolds v Stone Rowe Brewer (A Firm) QBD 18-Mar-2008
The solicitors appealed against the assessment of their costs. The judge had found that they had estimated their costs and applied a 15% margin of error.
Held: the judge should have given reasons for his judgment to allow the parties to assess . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 09 November 2021; Ref: scu.426064

C (acting by her litigation friend JF) v W: CA 19 Dec 2008

The court considered the proper basis for a success fee payable on a conditional fee agreement where, when signed, the defendant had already admitted liability. The claim was by a woman after being injured in a car driven by her brother. By the time her second form of solicitors took over the case the defendant had admitted liability. The courts reduced the success fee first to 70% and then to 50%. The defendants sought a further reduction.
Held: The success fee must reflect a reasonable and rational assessment of the risks facing the solicitor at the time when the agreement was entered into. The issue of liability was not the only risk faced by the solicitors. The solicitors had not however calculated the fee correctly. The chance of success remained very high, justifying a base uplift of no more than 5%. The larger volume of work required by a more complex case did not increase the risk to the solicitor. The right way to reflect the increased risk in more complex cases was in the chances of success. Nor was it correct to increase the fee to reflect unidentified party and insurance issues. In this case those did not apply. It was incorrect to adjust the premium to reflect a risk that the claimant might be insolvent and unable to pay costs if he withdrew his instructions. The solicitors may have been better using a variant of the two stage success fee discussed in Callery.

Arden LJ, Thomas LJ, Moore-Bick LJ, Master Hurst
[2008] EWCA Civ 1459
Bailii
Courts and Legal Services Act 1990 58, Access to Justice Act 1999 27(1), Conditional Fee Agreements Regulations 2000
England and Wales
Citing:
Cited – Callery v Gray, Russell v Pal Pak Corrugated Ltd (No 1) CA 18-Jul-2001
Claimants in modest, straightforward personal injury claims cases should have re-imbursed to them by the defendant, the cost of after the event insurance, if necessary by costs only proceedings. The solicitor’s success fee should also be recovered. . .

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

Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 09 November 2021; Ref: scu.278974

Calderbank v Calderbank: CA 5 Jun 1975

Letter Without Prejudice Save as to Costs

Husband and wife disputed provision under 1973 Act, and a summons under section 17 of the 1882 Act. The wife had offered to transfer a house to H occupied by his mother, worth about pounds 12,000, in return for him leaving the matrimonial home. He refused the offer as inadequate. Mrs. Justice Heilbron granted a declaration for the wife and ordered pounds 10,000 for the husband out of the proceeds of sale of the matrimonial home. He had got rather less than he had been offered. They then disputed costs on appeal.
Held:
Lord Justice Cairns said: ‘Before Heilbron J the wife’s application for costs was based upon a letter which had been written by the wife’s solicitors to the husband’s solicitors offering something substantially more than pounds 10,000. Heilbron J, despite that letter being drawn to her attention, made no order as to costs. Immediately after the hearing before her it was discovered that that was a ‘without prejudice’ letter and very properly at the opening of this part of the appeal Mr. Hordern asked for the court’s guidance as to whether in those circumstances he was entitled to rely upon that letter. We formed the opinion that he was not. The letter was written without prejudice. The ‘without prejudice’ bar had not been withdrawn and therefore we took the view that it was a letter which could not be relied upon either before the judge at first instance or before this court. Mr. Hordern then indicated the difficulty that a party might be in proceedings of this kind when he or she was willing to accede to some extent to an application that was made and desired to obtain the advantages that could be obtained in an ordinary action for debt or damages by a payment into court, that not being a course which would be appropriate in proceedings of this kind.’

Cairns LJ suggested a formula for future cases to ensure that negotiations could be conducted without prejudice to the issue at the trial, but yet nevertheless be referred to after judgment when the question of costs came to be considered. He said: ‘There are various other types of proceedings well known to the court where protection has been able to be afforded to a party who wants to make a compromise of that kind and where payment in is not an appropriate method. One is in proceedings before the Lands Tribunal where the amount of compensation is in issue and where the method that is adopted is that of a sealed offer which is not made without prejudice but which remains concealed from the tribunal until the decision on the substantive issue has been made and the offer is then opened when the discussion as to costs takes place. Another example is in the Admiralty Division where there is commonly a dispute between the owners of two vessels that have been in collision as to the apportionment of blame between them. It is common practice for an offer to be made by one party to another of a certain apportionment. If that is not accepted no reference is made to that offer in the course of the hearing until it comes to costs, and then if the court’s apportionment is as favourable to the party who made the offer as what, was offered, or more favourable to him, then costs will be awarded on the same basis as if there had been a payment in.
I see no reason why some similar practice should not be adopted in relation to such matrimonial proceedings in relation to finances as we have been concerned with.
Mr. Millar drew our attention to a provision in the Matrimonial Causes Rules 1968 with reference to damages which were then payable by a co-respondent, provision to the effect that an offer might be made in the form that it was without prejudice to the issue as to damages but reserving the right of the co-respondent to refer to it on the issue of costs. It appears to me that it would be equally appropriate that it should be permissible to make an offer of that kind in such proceedings as we have been dealing with and I think that that would be an appropriate way in which a party who was willing to make a compromise could put it forward. I do not consider that any amendment of the Rules of the Supreme Court is necessary to enable this to be done.’

Cairns LJ, Scarman LJ, Sir Gordon Wilmer
[1976] Fam 93, [1975] 3 All ER 333
NADR
England and Wales
Cited by:
Approved – McDonnell v McDonnell CA 1977
In family proceedings, a costs letter had been written in the form suggested in Calderbank.
Held: The court accepted and endorsed the practice suggested by Cairns LJ. Ormrod LJ said: ‘The important factor which distinguishes this case is the . .
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Cited – Gojkovic v Gojkovic (No 2) CA 1-Apr-1991
In ancillary relief proceedings, the husband had not made frank disclosure of his assets. The final Calderbank offer of andpound;600,000 was made only the day before the substantive hearing. The offer was rejected. The judge awarded the wife a lump . .
Cited – Norris v Norris, Haskins v Haskins CA 28-Jul-2003
The court considered how orders for costs were to be made in ‘big money’ cases.
Held: There were two sets of rules. Cases should be considered by first applying the Civil Procedure Rules. This would allow the court to consider the full range . .
Cited – Butcher v Wolfe and Another CA 30-Oct-1998
The parties had been partners in a family farm. On dissolution there was a dispute as to apportionment of costs. An offer had been ‘without prejudice save as to costs’.
Held: Costs may be denied to a plaintiff who had received a Calderbank . .
Cited – Reed Executive Plc, Reed Solutions Plc v Reed Business Information Ltd, Reed Elsevier (Uk) Ltd, Totaljobs.Com Ltd CA 14-Jul-2004
Walker v Wilshire still Good Law
After successfully appealing, the defendant claimant argued for a substantial part of its costs, saying that the defendant had unreasonably refused ADR. To pursue this, it now sought disclosure of the details of the without prejudice negotiations . .
Cited – Crouch v King’s Healthcare NHS Trust CA 15-Oct-2004
The defendants sought approval of their practice of making a written offer to the claimants rather than making a payment into court. The offer had been accepted but only after the defendant had purported to withdraw it.
Held: ‘it certainly is . .
Applied – Potter v Potter FD 1982
The court considered the admissibility of without prejudice correspondence on costs decisions. . .

Lists of cited by and citing cases may be incomplete.

Family, Costs

Leading Case

Updated: 09 November 2021; Ref: scu.186056

Royal National Lifeboat Institution and Others v Headley and Another: ChD 28 Jul 2016

Beneficiaries’ right to information from estate

The claimant charities sought payment of interests under the will following the dropping of two life interests. They now requested various documents forming accounts of the estate.
Held: The charities were entitled to some but not to all of the documents sought, including accounts of capital and lists of investments, and the trustee’s fees insofar as they impacted on capital. They were not generally entitled to matters relating to income. They were allowed to see the documents underlying the trust and to be informed as to the history of the identities of the trustees and the status of life interest holders.
As to costs, the trustees had failed to engage properly at all with what were proper requests, and the claimant charities should be entitled to their costs. The claimants also sought an order disallowing the trustees an indemnity from the estate, and ‘In my judgment, notwithstanding the lack of participation or explanation on behalf of the Defendants, it is clear that the Second Defendant in failing to account to the Claimants over so many years acted for a benefit other than that of the estate, and in failing to take part in these proceedings at all acted unreasonably. I have no hesitation in saying that any costs incurred by the Second Defendant in the context of these proceedings, including the costs which I have ordered him to pay to the Claimants, were not ‘properly incurred’ within s 31(1) and CPR rule PD46 para 1.1, and hence he is not entitled to be reimbursed out of the trust fund in respect of them.’
Master Matthews said: ‘Every beneficiary is entitled to see the trust accounts, whether his interest is in possession or not’, but ‘There is some danger of misunderstanding here. When the books and cases talk about beneficiaries ‘entitlements to accounts’ or to trustees being ‘ready with their accounts’ they are not generally referring to annual financial statements such as limited companies and others carrying on business (and indeed some large trusts) commonly produced in the form of balance sheets and profit and loss accounts, usually through accountants, and – in the case of limited companies – filed at Companies House. Instead they are referring to the very notion of accounting itself. Trustees must be ready to account to their beneficiaries for what they have done with the trust assets. This may be done with formal financial statements, or with less formal documents, or indeed none at all. It is no answer for trustees to say that formal financial statements have not yet been produced by the trustees’ accountants.’

Master Matthews
[2016] EWHC 1948 (Ch)
Bailii
England and Wales
Citing:
Cited – Re Cowin 1886
. .
Cited – In re Tillott ChD 1892
The plaintiff was entitled under a will trust to a one twelfth share in the capital of the residue, contingently on the death of his mother, who was a life tenant. The residue included Bank of England Consols. He had already obtained from the court . .
Cited – In re Dartnall CA 1895
. .
Cited – Nestle v National Westminster Bank ChD 1988
The plaintiff was the remainder beneficiary under the will trust of her grandfather, who died in 1922. The trust fund was then worth about andpound;50,000. The last outstanding life interest under the trust was that of her father John, who died in . .
Cited – D v United Kingdom ECHR 1997
In the circumstances of the case, where the applicant was in the advanced stage of a terminal illness (AIDS), to implement a decision by the respondent to remove the appellant to St Kitts in the West Indies would be a violation of his rights under . .
Cited – Armitage v Nurse; etc CA 19-Mar-1997
A clause in a trust deed may validly excuse trustees from personal liability for even gross negligence. The trustee was exempted from liability for loss or damage ‘unless such loss or damage shall be caused by his own actual fraud’.
Held: The . .
Cited – Vadim Schmidt v Rosewood Trust Limited PC 27-Mar-2003
PC (Isle of Man) The petitioner sought disclosure of trust documents, as a beneficiary. Disclosure had been refused as he had not been a named beneficiary.
Held: Times had moved on, and trust documents had . .
Cited – O’Rourke v Darbishire HL 1920
Sir Joseph Whitworth had died in 1887. In 1884 he had made a will appointing three executors and leaving his residuary estate to charity. By a codicil made in 1885 he altered his will to leave his ultimate residue to his executors for their own . .
Cited – Burrows v Walls 10-Mar-1855
A testator, by his will, gave the residue of his property to three trustees, whom he appointed executors, upon trust to sell and invest the same and to pay the income thereof to his widow for life, and after her decease, to his children, who were . .
Cited – O’Rourke v Darbishire HL 1920
Sir Joseph Whitworth had died in 1887. In 1884 he had made a will appointing three executors and leaving his residuary estate to charity. By a codicil made in 1885 he altered his will to leave his ultimate residue to his executors for their own . .
Cited – Murphy v Murphy ChD 2-May-1998
Where a plaintiff could show that he might have some potential interest under a discretionary trust, the settlor could be obliged by the court to disclose the names and addresses of the settlement trustees. . .
Cited – Brittlebank v Goodwin 1868
A trustee is bound to inform a beneficiary, who, on attaining majority is entitled to share in a trust fund, of that interest . .
Cited – Heugh v Scard CA 1875
Sir George Jessel MR said: ‘In certain cases of mere neglect or refusal to furnish accounts, when the neglect is very gross or the refusal wholly indefensible, I reserve to myself the right of making the executor or trustee pay the costs of . .
Cited – In Re Skinner ChD 1904
A beneficiary of a will trust brought an action for an account, having had little or no accounting from the executors and trustees (one a professional solicitor, entitled to charge) since the testator died more than two years before the action was . .
Cited – Blades v Isaac and Another ChD 21-Mar-2016
Claim by beneficiary under discretionary trust.
Held: A trustee’s wrongful failure to provide information does not necessarily justify an adverse costs order. . .

Cited by:
Cited – Henchley and Others v Thompson ChD 16-Feb-2017
The Claimants sought an order directing the Defendant to provide a full account of his dealings with the assets of the two trusts as a trustee or as a de facto trustee.
Held: The court has a discretion whether or not to make an order for an . .

Lists of cited by and citing cases may be incomplete.

Trusts, Costs

Updated: 09 November 2021; Ref: scu.567848

Goknur v Aytacli: CA 13 Jul 2021

Third Party Costs – Director of Insolvent Company

(Organic Village) The Court considered the circumstances Limited in which a director and shareholder of an insolvent company may be personally liable for some or all of that company’s costs liabilities incurred in unsuccessful litigation, pursuant to s.51 of the Senior Courts Act 1981. The particular question is whether it is enough to show that the director controlled and funded the company’s conduct of the litigation or whether, in order for a s.51 order to be made, it is also necessary to show either that he or she benefited (or sought to benefit) personally from that litigation, or acted in bad faith or was responsible for impropriety of some kind.
Held: The appeal failed. The absence of either personal benefit to Mr Aytacli, or bad faith/impropriety on his part, meant that the judge was right to conclude that it would be unjust to make a s.51 order.
‘For those who believe that most civil litigation does not end up being about the costs that were incurred in pursuing that same litigation in the first place, look away now.’
The court summarised the jurisdiction: ‘a) An order against a non-party is exceptional and it will only be made if it is just to do so in all the circumstances of the case (Gardiner, Dymocks, Threlfall).
b) The touchstone is whether, despite not being a party to the litigation, the director can fairly be described as ‘the real party to the litigation’ (Dymocks, Goodwood, Threlfall).
c) In the case of an insolvent company involved in litigation which has resulted in a costs liability that the company cannot pay, a director of that company may be made the subject of such an order. Although such instances will necessarily be rare (Taylor v Pace), s.51 orders may be made to avoid the injustice of an individual director hiding behind a corporate identity, so as to engage in risk-free litigation for his own purposes (North West Holdings). Such an order does not impinge on the principle of limited liability (Dymocks, Goodwood, Threlfall).
d) In order to assess whether the director was the real party to the litigation, the court may look to see if the director controlled or funded the company’s pursuit or defence of the litigation. But what will probably matter most in such a situation is whether it can be said that the individual director was seeking to benefit personally from the litigation. If the proceedings were pursued for the benefit of the company, then usually the company is the real party (Metalloy). But if the company’s stance was dictated by the real or perceived benefit to the individual director (whether financial, reputational or otherwise), then it might be said that the director, not the company, was the ‘real party’, and could justly be made the subject of a s.51 order (North West Holdings, Dymocks, Goodwood).
e) In this way, matters such as the control and/or funding of the litigation, and particularly the alleged personal benefit to the director of so doing, are helpful indicia as to whether or not a s.51 order would be just. But they remain merely elements of the guidance given by the authorities, not a checklist that needs to be completed in every case (SystemCare).
f) If the litigation was pursued or maintained for the benefit of the company, then common sense dictates that a party seeking a non-party costs order against the director will need to show some other reason why it is just to make such an order. That will commonly be some form of impropriety or bad faith on the part of the director in connection with the litigation (Symphony, Gardiner, Goodwood, Threlfall).
g) Such impropriety or bad faith will need to be of a serious nature (Gardiner, Threlfall) and, I would suggest, would ordinarily have to be causatively linked to the applicant unnecessarily incurring costs in the litigation.2

Coulson LJ
[2021] EWCA Civ 1037
Bailii, Judiary
Senior Courts Act 1981 51
England and Wales
Citing:
Appeal from – Goknur Gida Maddeleri Enerji Imalat Ithalat Ihracat Ticaret Ve Sanati AS (Goknur) v Organic Village Ltd QBD 12-Aug-2019
. .
Cited – Aiden Shipping Co Ltd v Interbulk Ltd (The ‘Vimeira’) HL 1986
Wide Application of Costs Against Third Party
A claim had been made against charterers by the ship owners, and in turn by the charterers against their sub-charterers. Notice of motion were issued after arbitration awards were not accepted. When heard, costs awards were made, which were now . .
Cited – Taylor v Pace Developments CA 1991
Lloyd LJ said: ‘There is only one immutable rule in relation to costs, and that is that there are no immutable rules.’
Lloyd LJ baulked at the suggestion that every director who funded and controlled litigation on behalf of an insolvent company . .
Cited – Symphony Group Plc v Hodgson CA 4-May-1993
Nine rules were set out for allowing a costs order against someone who is not a party to the action. Such orders should be exceptional. The normal rule is that witnesses in either civil or criminal proceedings enjoy immunity from any form of civil . .
Cited – Metalloy Supplies Ltd (In Liquidation) v MA (UK) Ltd CA 7-Oct-1996
A costs order against liquidator of company in litigation is only rarely to be given. The court should ask who is the ‘real’ party to the litigation.
Millett LJ said: ‘[An order] may be made in a wide variety of circumstances where the third . .
Cited – Gardiner v FX Music Limited ChD 27-Mar-2000
Geoffrey Vos QC faced an application for an order for costs against a third party. He reminded himself: ‘The court must ask whether, in all the circumstances, it is just to exercise the power under s.51 to make the non-party liable for the costs (or . .
Cited – Dymocks Franchise Systems (NSW) Pty Ltd v Todd and others (No. 2) PC 21-Jul-2004
PC (New Zealand) Costs were sought against a non-party, following an earlier determination by the Board.
Held: Jurisdiction to make such an order was not complete. Where the order sought was against a . .
Cited – Arklow Investments Ltd v Maclean 19-May-2000
(High Court of New Zealand) The court considered the potential personal responsibility of a directors for costs incurred by the company in litigation: ‘Where a person is a major shareholder and dominant director in a company which brings . .
Cited – Secretary of State for Trade and Industry v Blackhouse CA 26-Jan-2001
In Re North West Holdings PLC and Another
A non-party costs order was made against the director, because the defence to the petitions was not conducted in the bona fide belief that it was in the interests of the companies. Instead the director, . .
Cited – Goodwood Recoveries Ltd v Breen CA 19-Apr-2005
A claim against the defendant for money owed to someone else had been bought by the claimant of which Slater, a solicitor, was a director and shareholder. The claim was pursued in the name of the claimant by Slater as its solicitor and principal . .
Cited – Systemcare (UK) Ltd v Services Design Technology Ltd and Another CA 11-May-2011
The claimant having obtained judgment in an action against the defendant company when it was solvent, and the case having become disproportionate through the dishonest actions of the owner of the defendant, the defendant company then being put into . .
Cited – Mars UK Ltd v Teknowledge Ltd PatC 11-Jun-1999
The public policy defence of a right to repair by creation of ‘spare parts’ to a copyright infringement claim depended upon the right being so clear that no right thinking person would quarrel with it. An equitable duty of confidence falls on a . .
Cited – Housemaker Services Ltd and Another v Cole and Another ChD 26-Apr-2017
Appeal from limitation direction, and third party costs order: ‘in order to make it just to order a director to pay the costs of unsuccessful company litigation, it is necessary to show something more. This might be, for example, that the claim is . .
Cited – Threlfall v ECD Insight Ltd and Another CA 29-Oct-2013
. .

Lists of cited by and citing cases may be incomplete.

Costs, Company

Updated: 09 November 2021; Ref: scu.665593

Okoro and Another v Taylor Woodrow Construction Ltd and Others: EAT 6 Dec 2010

EAT PRACTICE AND PROCEDURE
Postponement or stay
Appellate jurisdiction/reasons/Burns-Barke
Where an application is made to an Employment Tribunal for a postponement in writing and at the relevant hearing, the Employment Judge should make and record his decision in refusing the application and give reasons. Time for appealing did not begin to run until that happened. The appeal against the substantive Judgment at that hearing was in time and so was the appeal against the implicit refusal of the application.
It is reasonably arguable at a full hearing that when the Claimants were banned from building sites and refused entry on several further occasions, there was a continuing state of affairs and time for presenting a claim form under the Race Relations Act 1976 did not begin to run from the latest actual application of the ban.
An appeal against uncapped wasted costs orders exceeding andpound;40,000 might better be heard after the above point is decided.

[2010] UKEAT 0318 – 10 – 0612
Bailii
Race Relations Act 1976
England and Wales
Citing:
Cited – G v G (Minors: Custody appeal) CA 1985
A court should take great care before setting aside a decision of a judge which had involved the exercise of a judicial discretion. The court considered the duty of an appellate court in a children case: ‘What this court should seek to do is to . .
Cited – Muschett v London Borough of Hounslow EAT 6-Aug-2007
EAT Practice and procedure
Time for appealing
On hearing live evidence on appeals from decisions of the Registrar refusing extensions of time to lodge Notices of Appeal, three were dismissed and one was . .
Cited – Canadian Imperial Bank of Commerce v Beck CA 26-Jun-2009
. .

Cited by:
See Also – Okoro and Another v Taylor Woodrow Construction Ltd and Others EAT 26-May-2011
EAT Jurisdictional Points : Claim In Time and Effective Date of Termination
Contract workers banned – they claimed for discriminatory reasons – from working again for the principal. Claim brought some 6 . .
At EAT (1) – Okoro and Another v Taylor Woodrow Construction Ltd and Others CA 4-Dec-2012
Appeals against orders whereby racial discrimination claims by the appellants were held to be out of time and that it was not just and equitable to extend time. . .

Lists of cited by and citing cases may be incomplete.

Employment, Costs

Updated: 09 November 2021; Ref: scu.427756

Callery v Gray, Russell v Pal Pak Corrugated Ltd (No 1): CA 18 Jul 2001

Claimants in modest, straightforward personal injury claims cases should have re-imbursed to them by the defendant, the cost of after the event insurance, if necessary by costs only proceedings. The solicitor’s success fee should also be recovered. It was reasonable for claimants and lawyers to agree insurance and conditional fee arrangements at a very early stage, and before hearing from the defendant as to his intentions. Even the simplest cases involved a risk of the claim failing for some reason, and it could be appropriate and sensible to agree a success uplift rate at the outset. In modest and straightforward cases the maximum uplift allowed should be 20 per cent. The costs award was reduced accordingly.
There is no presumption that an ATE insurance premium is reasonable, unless the contrary is shown: ‘We do not think it correct to start with Master O’Hare’s presumption. When considering whether a premium is reasonable the court must have regard to such evidence as there is, or knowledge that experience has provided, of the relationship between the premium and the risk and also the cost of alternative cover available. As time progresses this task should become easier.’

Lord Justice Brooke, Lord Woolf, Lord Chief Justice of England and Wales Lord Phillips, Master of the Rolls
Times 18-Jul-2001, Gazette 13-Sep-2001, [2001] EWCA Civ 1117, [2001] 1 WLR 2112, [2001] 2 Costs LR 163, [2001] Lloyds Rep IR 743, [2001] 3 All ER 833, [2001] PIQR P32
Bailii
Access to Justice Act 1999 29
England and Wales
Citing:
See Also – Callery v Gray (No 2) CA 31-Jul-2001
A plaintiff could recover the costs of insuring himself against the risk of having to pay the other sides costs, and finding his own costs irrecoverable (after the event or ATE insurance). The earlier case had decided that such premiums may be . .

Cited by:
Cited – Crosbie v Munroe, Motor Insurer’s Bureau CA 14-Mar-2003
The claim had been settled before action, and costs only proceedings had been instigated. He appealed a decision as to the award of costs in that case. The question was whether the phrase ‘the proceedings which gave rise to the assessment . .
Cited – Hollins v Russell etc CA 22-May-2003
Six appeals concerned a number of aspects of the new Conditional Fee Agreement.
Held: It should be normal for a CFA, redacted as necessary, to be disclosed for costs proceedings where a success fee is claimed. If a party seeks to rely on the . .
Cited – Atack v Lee and Another CA 16-Dec-2004
Defendant insurers had challenged conditional fee agreements involving a two stage success fee. Both cases took place before limitations were introduced by Callery v Gray.
Held: It would be wrong to apply Callery v Gray retrospectively. A two . .
See Also – Callery v Gray (No 2) CA 31-Jul-2001
A plaintiff could recover the costs of insuring himself against the risk of having to pay the other sides costs, and finding his own costs irrecoverable (after the event or ATE insurance). The earlier case had decided that such premiums may be . .
Appeal from – Callery v Gray (1) and (2) HL 27-Jun-2002
Success fees and ATE premiums were recoverable
Objection was made to a claimed uplift of 20% sought by the plaintiff’s solicitors. The defendant’s insurers said that there had been little at risk for them.
Held: The system of conditional fees insurance had been introduced to remedy defects . .
Cited – Campbell v MGN Ltd (No 2) HL 20-Oct-2005
The appellant sought to challenge the level of costs sought by the claimant after she had succeeded in her appeal to the House. Though a relatively small sum had been awarded, the costs and success fee were very substantial. The newspaper claimed . .
Cited – C (acting by her litigation friend JF) v W CA 19-Dec-2008
The court considered the proper basis for a success fee payable on a conditional fee agreement where, when signed, the defendant had already admitted liability. The claim was by a woman after being injured in a car driven by her brother. By the time . .
Cited – Kris Motor Spares Ltd v Fox Williams Llp QBD 12-May-2010
The claimant sought to challenge the After the Event Insurance (ATE) bought by its solicitors late in the day in their claim, before then withdrawing the conditional fee agreement. The premium was over andpound;90,000.
Held: The appeal failed. . .

Lists of cited by and citing cases may be incomplete.

Costs, Personal Injury, Legal Professions

Leading Case

Updated: 09 November 2021; Ref: scu.78838

Brown-Quinn and Another v Equity Syndicate Management Ltd and Another: CA 12 Dec 2012

The court was asked as to the requirement for a client to be given free choice of a lawyer in the context of legal expenses insurance. The various claimants insured by the defendants had sought to instruct solicitors not on the respondent’s approved panel, but had then been refused indemnity.
Held: The court declared that the defendant insurers were obliged to pay the appropriate non-panel rates to their insureds but no more.
Longmore LJ said: ‘The facts of this case have revealed that the insurers exhibit an insouciance to their obligations under the Directive and the Regulations which leaves one quite breathless.’ However: ‘if one has regard solely to the terms of the policy of insurance, the insureds are entitled to recover the non-panel rate set out in the standard terms and conditions and no more; they are, however, entitled to recover at least those rates. If that means that they have to pay more to their chosen solicitors and arrange some other way to make such payment, that will then be their decision.’ and ‘insurers can seek to limit the costs for which they are liable to the insured provided that the freedom of choice guaranteed by the Directive: ‘is not rendered meaningless . . A court determining whether the remuneration offered by the insurance policy is so insufficient as to render the insured’s freedom of choice meaningless would have to have evidence of such insufficiency before it could avoid or strike down any provision in an insurance contract relating to the level of costs and expenses payable in respect of a solicitor’s services. In this case the evidence is meagre in the extreme.’

Longmore, Lloyd, McFarlane LJJ
[2013] 1 Costs LR 1, [2013] 2 CMLR 20, [2013] CP Rep 13, [2012] WLR(D) 377, [2013] 1 WLR 1740, [2012] EWCA Civ 1633
Bailii
Council Directive 87/344 EEC 4, Insurance Directive 2009/108/EC 198, Insurance Companies (Legal Expenses Insurance) Regulations 1990
England and Wales
Citing:
Cited – Pittalis v Grant CA 1989
A point was raised for the first time on appeal.
Held: Though an appellate court could exclude a pure question of law which had not been raised at first instance from being raised on appeal, the usual practice was to allow it to be taken where . .
Cited – Gebhard Stark v DAS Osterreichische Allgemeine Rechtsschutzversicherung AG ECJ 26-May-2011
ECJ Legal expenses insurance – Directive 87/344/EEC – Article 4(1) – Freedom of the insured person to choose his lawyer – Limitation of the reimbursement allowed in respect of the costs relating to representation . .
Cited – Eschig v UNIQA Sachversicherung AG ECJ 14-May-2009
ECJ Legal expenses insurance Directive 87/344/EEC Article 4(1) Right of insured persons to choose their own lawyer Contractual limitation Multiple insured persons suffering loss as a result of the same event . .
Appeal from – Brown-Quinn and Another v Equity Syndicate Management Ltd and Another ComC 21-Oct-2011
The court heard sample claims as to the effectiveness of BTE legal expenses insurance policies. . .

Lists of cited by and citing cases may be incomplete.

European, Legal Professions, Costs

Leading Case

Updated: 09 November 2021; Ref: scu.467058

Zapello v The Chief Constable of Sussex Police: CA 12 Nov 2010

The claimant had been arrested in the course of a neighbour dispute. He had lost his claim for damages for false imprisonment, and now complained that a later costs order had been made without his being given notice.
Held: The decision had been made without adequate notice. On attending the later hearing, the defendant should have told the judge that there had been no agreement, and nor had the judge been informed of the results of an IPCC complaint. The outcome might well have been different had it been disclosed: ‘the reason why no such rapprochement was attempted was that, while civil litigation is conducted on the Chief Constable’s behalf by outside solicitors instructed by a civil claims department, complaints are separately dealt with within the police force. This may well be so, but neither in law nor in practice is it acceptable for a public authority to fall back on the plea that its left hand does not know what its right hand is doing. We have to look at the defendant’s establishment and functions as a single entity, and it is clear that as an entity the Sussex Police treated this litigation as something to be fought and won irrespective of what the IPCC had elicited (or was eliciting in a process reminiscent of drawing teeth) as having gone on or, to an extent, gone wrong.’

Sedley, Moses, Leveson LLJ
[2010] EWCA Civ 1417
Bailii
England and Wales

Police, Costs

Updated: 09 November 2021; Ref: scu.430484

Petromec Inc v Petroleo Brasileiro Sa Petrobras: CA 19 Jul 2006

A Mr Efremovich, a third party to the action was ordered to pay the costs of Petrobras and Brasoil which on the failure of its claim against them had been ordered to be paid by Petromec. The judge found that Mr Efromovich controlled the proceedings brought by Petromec, funded those proceedings and would have benefited from them if they had been successful. He therefore thought it right that Mr Efromovich should pay the successful parties their costs, to be assessed, of defending themselves against the unsuccessful claims.
Held: The court rejected three grounds of appeal, (1) there was no evidence to support the judge’s finding that Mr Efromovich controlled the proceedings brought by Petromec, (2) it was a condition of jurisdiction under section 51(3) that Mr Efromovich had funded the proceedings but he had not and (3) in the exercise of his discretion the judge had failed to take into account the fact that the defendant Petrobras had been entitled to and did obtain some security for its costs. Longmore LJ said: ‘although funding took place in most of the reported cases, it is not, in my view, essential, in the sense of being a jurisdictional pre-requisite to the exercise of the court’s discretion. If the evidence is that a respondent (whether director or shareholder or controller of a relevant company) has effectively controlled the proceedings and has sought to derive potential benefit from them, that will be enough to establish the jurisdiction. Whether such jurisdiction should be exercised is, of course, another matter entirely and the extent to which a respondent has, in fact, funded any proceedings may be very relevant to the exercise of discretion.’ and ‘But the fact that in the course of the proceedings a judge (Andrew Smith J in this case) ordered security which, in the event, has turned out to be inadequate should not be any reason for declining to exercise jurisdiction in an otherwise appropriate case. As the judge said in paragraph 43 ‘it is no more unjust to make the backers of an insolvent company liable for the costs than it is to require them to provide security for costs on its behalf’.’

Longmore LJ, Laws and Ward LJJ
[2006] EWCA Civ 1038, [2007] 2 Costs LR 212
Bailii
Supreme Court Act 1981 51(3)
England and Wales
Citing:
See Also – Petromec Inc v Petroleo Brasileiro S A Petrobras and others ComC 18-Feb-2003
. .
See Also – Petromec Inc and Petroleo Brasileiro S A Petrobras, Braspetro Oil Services Company v Petromec Inc, Petro-Deep Inc, Maritima Petroleo E Engenharia Ltda QBD 2-Feb-2004
The parties entered into a complex group of inter-related contracts for the purpose of purchasing and upgrading an oil production platform for use by Petrobras in the South Marlim oilfield. At a very early stage it was agreed that the upgrade . .
See Also – Petromec Inc v Petroleo Brasileiro Sa Petrobras, Braspetro Oil Services Company, Societa Armamento Navi Appoggio Spa, Den Norske Bank Asa CA 17-Feb-2004
. .
See Also – Petromec Inc v Petroleo Brasileiro SA Petrobrasbraspetro Oil Services etc ComC 20-May-2004
. .
See Also – Petromec Inc Petro-Deep Inc and others v Petroleo Brasileiro Sa and others CA 15-Jul-2005
. .
See Also – Petroleo Brasileiro SA and Another v Petromec Inc and others ComC 3-Nov-2005
. .
See Also – Petromec Inc v Petroleo Brasiliero Sa Petrobras and Another ComC 16-Jun-2006
. .

Cited by:
Cited – Dolphin Quays Developments Ltd v Mills and others CA 17-May-2007
The owner had agreed to sell a long lease of an apartment to the defendant. Part of the price was to be by way of set off of an existing debt, but ths was not set out in the contract. The claimant bought the land and the benfit of the contract from . .
See Also – Petromec Inc v Petroleo Brasileiro Sa Petrobras and others ComC 7-Dec-2006
. .
See Also – Petromec Inc v Petrobras ComC 11-May-2007
Defendant’s application for security for costs. . .
See Also – Petromec Inc v Etroleo Brasileiro Sa Petrobras and others ComC 6-Jul-2007
. .
See Also – Petromec Inc v Petroleo Brasileiro SA Petrobras and others CA 21-Dec-2007
. .
See Also – Petromec Inc v Petroleo Brasileiro Sa Petrobras and others CA 23-Jan-2008
Short order. . .
Cited – Lingfield Properties (Darlington) Ltd v Padgett Lavender Associates QBD 18-Nov-2008
Application for non-party costs order against litigation funder. The third party denied that he was a person against whom an order could be made, and denied his formal involvement in the companies funding the litigation.
Held: Such an order . .

Lists of cited by and citing cases may be incomplete.

Contract, Costs

Updated: 09 November 2021; Ref: scu.243325

London Borough of Camden v The Parking Adjudicator and Others: Admn 18 Feb 2011

The council appealed after parking adjudicators allowed four appeals where the council had imposed a surcharge on the payment of civil parking penalties where payment was made by credit card.

Burnett J
[2011] EWHC 295 (Admin)
Bailii
The Civil Enforcement of Parking Contraventions (England) General Regulations 2007, The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007
England and Wales
Citing:
Cited – Regina on the Application of Davies (No 2) v HM Deputy Coroner for Birmingham CA 27-Feb-2004
The claimant appealed against a costs order. She had previously appealed against an order of the High Court on her application for judicial review of the inquest held by the respondent.
Held: The coroner, and others in a similar position . .
Cited – Corner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry CA 1-Mar-2005
The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the . .
Cited – Regina (Ministry of Defence) v Wiltshire and Swindon Coroner QBD 19-Apr-2005
The applicant sought an order requiring the Coroner to provide a digitised recording of his summing up in an inquest regarding deaths at its facility at Porton.
Held: It should not be necessary for the claimant to set out just precisely which . .

Lists of cited by and citing cases may be incomplete.

Road Traffic, Costs

Updated: 09 November 2021; Ref: scu.429683

Reid Minty (a firm) v Taylor: CA 2002

New CPR govern Indemnity Costs awards

The defendant had successfully defended the main claim and now appealed against the refusal of an order for costs on an indemnity basis even though judge thought that the claimants had behaved unreasonably. He had said that some conduct deserving of moral condemnation was required. The defendant had made an offer to settle which was only later accepted. The defendant sought costs on an indemnity basis.
Held: A civil court may make an order for the assessment of costs on an indemnity basis to mark the court’s disapproval of a party’s unreasonable conduct. The Civil Procedure Rules contain a new procedural code, intended to enable the court to deal with cases justly. It is no longer necessary to show that there has to be some sort of moral lack of probity or conduct deserving moral condemnation on the part of the paying party before ordering indemnity costs. If one party has made a real effort to find a reasonable solution to the proceedings and the other party has resisted that sensible approach, then the latter puts himself at risk that the order for costs may be on an indemnity basis. In this case the judge had applied the incorrect test. His decision was set aside, and the case remitted to him for further determination.
May LJ said: ‘As the very word ‘standard’ implies, this will be the normal basis of assessment where the circumstances do not justify an award on an indemnity basis. If costs are awarded on an indemnity basis, in many cases there will be some implicit expression of disapproval of the way in which the litigation has been conducted, but I do not think this will necessarily be so in every case. What is, however, relevant to the present appeal is that litigation can readily be conducted in a way which is unreasonable and which justifies an award of costs on an indemnity basis, where the conduct could not properly be regarded as lacking moral probity or deserving moral condemnation.’ . . And ‘If costs are awarded on an indemnity basis in many cases there will be some implicit expression of disapproval of the way in which the litigation has been conducted, but I do not think that this will necessarily be so in every case. What is, however, relevant, at the present appeal, is that litigation can readily be conducted in a way which is unreasonable and which justifies an award of costs on an indemnity basis, where the conduct could not properly be regarded as lacking moral probity, or deserving moral condemnation . . There will be many cases in which, although the defendant asserts a strong case throughout and eventually wins, the Court will not regard the claimant’s conduct of the litigation as unreasonable and will not be persuaded to award the defendant indemnity costs. There may be others where the conduct of a losing claimant will be regarded, in all the circumstances, as meriting an order in favour of the defendant of indemnity costs. Offers to settle and their terms will be relevant, and if they come within Part 36 may, subject to the Court’s discretion, be determinative.’

May LJ, Kay LJ, Ward LJ
[2002] 1 WLR 2800, [2001] EWCA Civ 1723, [2002] EMLR 19, [2002] 1 Costs LR 180, [2002] 2 All ER 150, [2002] CP Rep 12, [2002] CPLR 1
Bailii
Civil Procedure Rules 36.21 44.3 44.4
England and Wales
Citing:
Cited – Petrograde Inc v Texaco Ltd CA 23-May-2000
The award of costs under Rule 36.21 on an indemnity basis is not intended to be penal, and the court must look at what was fair and reasonable in the circumstances. Lord Woolf said: ‘However, it would be wrong to regard the rule [36.21] as producing . .
Cited – David John Baron v Brian Lovell CA 27-Jul-1999
A party to litigation must ensure that an agent attending had sufficient knowledge and authority to deal with issues raised at a pre-trial review, and where he failed in this he could be penalised in indemnity costs or interest at higher rates than . .
Cited – McPhilemy v Times Newspapers Ltd (No 4) CA 3-Jul-2001
The fact that a defendant had not acted unreasonably in pursuing a case after an offer of settlement, was not a reason for not awarding costs to be paid on an indemnity basis. Such an award had no penal element, and did not first require any . .
Cited – Raja v Rubin and Another CA 19-Mar-1999
Having waived his right to a dividend under a voluntary arrangement, a creditor could not object to its later variation to include other creditors, despite an absence of explicit power in the deed for this purpose. Waiver should have been made . .

Cited by:
Cited – Kiam II v MGN Ltd (2) CA 6-Feb-2002
An appeal against a damages award in a defamation case had been unsuccessful. The claimant now appealed for the award of indemnity costs. The claimant had made an offer of compromise, which had been ignored by the defendant.
Held: If a party . .
Cited – Brawley v Marczynski and Another CA 21-Oct-2002
The defendants appealed an award of costs on an indemnity basis against them in the favour of a legally aided claimant.
Held: Indemnity costs were often intended to indicate disapproval of a party’s behaviour in an action, and were awarded in . .
Cited – Fourie v Le Roux and others HL 24-Jan-2007
The appellant, liquidator of two South African companies, had made a successful without notice application for an asset freezing order. He believed that the defendants had stripped the companies of substantial assets. The order was set aside for . .
Cited – Carvill v HM Inspector of Taxes SCIT 23-Mar-2005
SCIT COSTS – Basis for award – Indemnity costs – Whether Special Commissioners have power to award costs on the indemnity basis – Yes – Whether costs should be awarded on the indemnity basis – Yes – Special . .
Cited – Fosberry and Another v Revenue and Customs VDT 28-Jul-2005
COSTS – Indemnity basis – Commissioners accepted that taxpayers’ appeal succeeded – Commissioners offered to pay taxpayers’ costs – Taxpayers applied for indemnity costs on grounds that Commissioners had changed their reasons for original decision . .
Cited – Vaidyanathan v Milton Keynes Council EAT 25-Nov-2003
EAT Practice and Procedure – Appearance . .
Cited – Harrods (UK) Ltd v Revenue and Customs VDT 1-Nov-2005
VDT VALUE ADDED TAX – Direction to pay costs to the successful party (the Appellant) – rule 29(1) of the VAT Tribunals Rules 1986 – whether costs should be awarded on the standard basis or alternatively on the . .
Cited – The Funding Corporation Ltd v Revenue Customs VDT 4-Apr-2006
VDT VALUE ADDED TAX – Direction to pay costs to the successful party (the Appellant) – rule 29(1) of the VAT Tribunals Rules 1986 – whether costs should be awarded on the standard basis or alternatively on the . .
Cited – Vauxhall Motors Ltd and Another v Revenue and Customs VDT 14-Mar-2007
VDT Value Added Tax – Direction to pay costs to the successful party (the Appellant) – Rule 29(1) of the VAT Tribunals Rules 1986 – Whether costs should be awarded on the standard basis or alternatively on the . .
Cited – Landlord Protect Ltd v St Anselm Development Company Ltd ChD 8-Jul-2008
. .
Cited – Excelsior Commercial and Industrial Holdings Ltd v Salisbury Hammer Aspden and Johnson (A Firm) CA 12-Jun-2002
The court was asked as to when it is appropriate to order costs on an indemnity basis. Waller LJ said: ‘The question will always be: is there something in the conduct of the action or the circumstances of the case which takes the case out of the . .
Cited – 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 . .
Cited – Evans and Others v The Serious Fraud Office QBD 12-Feb-2015
evans_sfoQBD201502
The claimants had had criminal charges brought against them by the defendants. A court had ordered them discharged, but the defendant had recommenced proceedings and these second set of proceedings had also been dismissed by the court. They now . .

Lists of cited by and citing cases may be incomplete.

Costs, Civil Procedure Rules

Leading Case

Updated: 02 November 2021; Ref: scu.182851

Gibbon v Manchester City Council, L G Blower Specialist Bricklayer Ltd, Reeves and another: CA 25 Jun 2010

A payment in had been made, and a counter offer made by the claimant. The original offer was increased but rejected. The counter-offer was not withdrawn, and was then accepted by the defendant. On receipt of the acceptance, the claimant purported to withdraw the counter offer. The judge had held that since the offer had not been formally withdrawn it remained open to acceptance. The withdrawal was too late.
Held: The appeals failed. The procedure under Part 36 is a self contained sytem, and answers must be sought within it, and not under the general law of contract. Elements will be common to both, but the Rules prevail. The rules in contract applying to rejection of an offer should not be applied.
As to the decision in Carver Carnwath LJ said that it should not be interpreted as opening the way to a wide ranging investigation of emotional and other factors in every case, even where the financial advantage is significant.

Sir Anthony May P, Carnwath, Moore Bick LJJ
[2010] EWCA Civ 726, [2010] WLR (D) 161, [2010] CP Rep 40, [2010] 36 EG 120, [2010] PIQR P16, [2010] 1 WLR 2081, [2010] 5 Costs LR 828
Bailii, WLRD
Civil Procedure Rules Part 36
England and Wales
Citing:
Cited – Sampla and Others v Rushmoor Borough Council and Another TCC 22-Oct-2008
The rejection of a Part 36 offer does not render it incapable of later acceptance. . .
Cited – Carver v BAA Plc CA 22-Apr-2008
The claimant had succeeded in her claim and had recovered more than the sum paid in by the defendant, and now appealed an order for costs in favour of the defendant.
Held: The award of costs to a successful claimant achieving more than any sum . .
Cited – Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd and Another (No 7) TCC 29-Sep-2008
Last stage of the Wembley stadium construction dispute. Jackson J, interpreting Carver said that it set out: ‘how the court ought to approach the matter in circumstances where: (a) one party has made an offer which was nearly but not quite . .

Lists of cited by and citing cases may be incomplete.

Costs, Litigation Practice

Updated: 02 November 2021; Ref: scu.418432

MGN Limited v United Kingdom: ECHR 18 Jan 2011

The applicant publisher said that the finding against it of breach of confidence and the system of success fees infringed it Article 10 rights to freedom of speech. It had published an article about a model’s attendance at Narcotics anonymous meetings.
Held: The finding of a breach of confidence against the applicant amounted to an interference with its right to freedom of expression, but that interference was proportionate. As to the level of success fees (at 100%) again these were an interference, were prescribed by law, and had a legitimate aim, but flaws in the process leading up to their implementation meant that it could not be shown that they were necessary and were disproportionate.

Mojovic P
[2011] ECHR 66, 39401/04, (2011) 53 EHRR 5, 29 BHRC 686, [2011] 1 Costs LO 84, [2011] EMLR 20
Bailii
European Convention on Human Rights 10, Data Protection Act 1998, Human Rights Act 1998 2(1) 6(1), Civil Procedure Rules 44.3(2), Conditional Fee Agreements Order 2000, Courts and Legal Services Act 1990, Conditional Fee Agreements Order 1995, Conditional Fee Agreements Order 1998, Access to Justice Act 1999
Human Rights
Citing:
See Also – MGN Limited v United Kingdom ECHR 24-Oct-2008
The Mirror had published a picture of Naomi Campbell leaving a rehabilitation clinic. They appealed a decision in which having been found to have infringed her privacy by a covertly taken photograph, they had then been ordered to pay very . .
Appeal from – Campbell v MGN Ltd (No 2) HL 20-Oct-2005
The appellant sought to challenge the level of costs sought by the claimant after she had succeeded in her appeal to the House. Though a relatively small sum had been awarded, the costs and success fee were very substantial. The newspaper claimed . .
Main HL Judgment – Campbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .
At Court of Appeal – Campbell v Mirror Group Newspapers plc CA 14-Oct-2002
The newspaper appealed against a finding that it had infringed the claimant’s privacy by publishing a photograph of her leaving a drug addiction clinic.
Held: The claimant had courted publicity, and denied an involvement in drugs. The defence . .
At First Instance – Campbell v Mirror Group Newspapers Ltd QBD 27-Mar-2002
The applicant sought damages for the defendant having infringed her privacy in several ways, including under the 1998 Act. The defendant argued that she had invited publicity and had misled the public as to her drug problem. A photograch had been . .
Cited – A v B plc and Another (Flitcroft v MGN Ltd) CA 11-Mar-2002
A newspaper company appealed against an order preventing it naming a footballer who, they claimed, had been unfaithful to his wife.
Held: There remains a distinction between the right of privacy which attaches to sexual activities within and . .
Cited – Designers Guild Ltd v Russell Williams (Textiles) Ltd (T/A Washington DC) (No 2) SCCO 20-Feb-2003
The appellant had been successful at first instance, had lost (unanimously) in the Court of Appeal and its appeal was allowed (unanimously) in the House of Lords.
Held: The general principles as to taxation of costs apply equally in the House . .
Cited – King v Telegraph Group Ltd CA 18-May-2004
The defendant appealed against interim costs orders made in the claim against it for defamation.
Held: The general power of cost capping measures available to courts were available also in defamation proceedings. The claimant was being . .
Cited – Blecic v Croatia ECHR 29-Jul-2004
The applicant had for many years before 1992 had a protected tenancy of a publicly-owned flat in Zadar. Under Croatian law a specially-protected tenancy might be terminated if the tenant ceased to occupy the flat for a continuous period of six . .
Cited – Turcu v News Group Newspapers Ltd QBD 4-May-2005
Chilling effect of defamation costs structures
Eady J said: ‘The claimant in these proceedings is seeking damages against News Group Newspapers Ltd, as publishers of The News of the World, in respect of articles appearing in the editions of that newspaper dated 3 November 2002 . . He issued his . .
Cited – Blecic v Croatia ECHR 8-Mar-2006
The applicant alleged that her rights to respect for her home and to peaceful enjoyment of her possessions had been violated on account of the termination of her specially protected tenancy.
Held: Ratione temporis, the court had had no . .
Cited – Evans v United Kingdom ECHR 10-Apr-2007
The claimant said that the English law on assisted conception infringed her right to family life. She had began treatment with her partner, and was given a cycle of in-vitro fertilisation before her cancerous condition required removal of her . .
Cited – Jersild v Denmark ECHR 20-Oct-1994
A journalist was wrongly convicted himself of spreading racial hatred by quoting racists in his material.
Held: Freedom of expression is one of the essential foundations of a democratic society. The safeguards to be afforded to the press are . .
Cited – Pedersen and Baadsgaard v Denmark ECHR 17-Dec-2004
HUDOC The press must not overstep the bounds set for, among other things, ‘the protection of the reputation of . . others’, including the requirements of acting in good faith and on an accurate factual basis and . .
Cited – Lindon, Otchakovsky-Laurens and July v France ECHR 22-Oct-2007
ECHR (Grand Chamber) The court emphasised the public interest in protecting the reputation of those in public life. Regardless of the forcefulness of political struggles, it is legitimate to try to ensure that . .
Cited – Thorgeir Thorgeirson v Iceland ECHR 25-Jun-1992
Two newspaper articles reported widespread rumours of brutality by the Reykjavik police. These rumours had some substantiation in fact, a policeman had been convicted recently. The purpose of the articles was to promote an investigation by an . .
Cited – Golder v The United Kingdom ECHR 21-Feb-1975
G was a prisoner who was refused permission by the Home Secretary to consult a solicitor with a view to bringing libel proceedings against a prison officer. The court construed article 6 of ECHR, which provides that ‘in the determination of his . .
Cited – Airey v Ireland ECHR 9-Oct-1979
Family law proceedings such as judicial separation do give rise to civil rights. In complex cases article 6 might require some provision for legal assistance, the precise form being a matter for the member state. The Court reiterated the importance . .
Cited – James and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
Cited – Tolstoy Miloslavsky v United Kingdom ECHR 19-Jul-1995
The applicant had been required to pay andpound;124,900 as security for the respondent’s costs as a condition of his appeal against an award of damages in a defamation case.
Held: It followed from established case law that article 6(1) did not . .
Cited – Bladet Tromso and Stensaas v Norway ECHR 20-May-1999
A newspaper and its editor complained that their right to freedom of expression had been breached when they were found liable in defamation proceedings for statements in articles which they had published about the methods used by seal hunters in the . .
Cited – Hatton and Others v United Kingdom ECHR 2-Oct-2001
The appellants claimed that the licence of over-flying from Heathrow at night, by making sleep difficult, infringed their rights to a family life. The times restricting over-flying had been restricted. The applicants’ complaints fell within a . .
Cited – Steel and Morris v United Kingdom ECHR 15-Feb-2005
The applicants had been sued in defamation by McDonalds. They had no resources, and English law precluded legal aid for such cases. The trial was the longest in English legal history. They complained that the non-availablility of legal aid infringed . .
Cited – Velikovi And Others v Bulgaria ECHR 15-Mar-2007
. .
Cited – Hachette Filipacchi Associates v France ECHR 12-Nov-2007
. .
Cited – Gutierrez Suarez v Spain ECHR 1-Sep-2010
(French Text) . .
Cited – Brecknell v The United Kingdom ECHR 27-Nov-2007
Allegations had been made about police collusion with killings in Northern Ireland.
Held: Where there was credible information as to a possible perpetrator of an unlawful killing, there was a duty to investigate that evidence. Here the . .

Cited by:
Cited – Seckerson and Times Newspapers Ltd v The United Kingdom ECHR 24-Jan-2012
The first applicant had been chairman of a jury and had expressed his concerns about their behaviour to the second applicant who published them. They were prosecuted under the 1981 Act. They had said that no details of the deliberations had been . .
Cited – Times Newspapers Ltd and Others v Flood and Others SC 11-Apr-2017
Three newspaper publishers, having lost defamation cases, challenged the levels of costs awarded against them, saying that the levels infringed their own rights of free speech.
Held: Each of the three appeals was dismissed. . .
Cited – Coventry and Others v Lawrence and Another SC 22-Jul-2015
The appellants challenged the compatibility with the European Convention on Human Rights of the system for recovery of costs in civil litigation in England and Wales following the passing of the Access to Justice Act 1999. The parties had been . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Costs, Torts – Other, Media

Updated: 02 November 2021; Ref: scu.428415

Leeds City Council v Price and Others: QBD 4 Apr 2011

The council had successfully defended a case brought by the defendant under legal aid. The parties now disputed whether it could recover the costs from the Legal Service Commission. The LSC answered that it had not been given proper notice of the costs application and was not bound by it.
Held: The order for payment of the costs was revoked. But for the various Regulations, there was no power to recover costs from the LSC. The purported notice given by the Council was out of time and did not meet th enecessary requirements. The Order for payment obtained by the Council from the court ‘ was obtained as a result of a without notice application which did not contain full and frank disclosure by the Council of the dispute between the Council and the LSC. ‘

Behrens J
[2011] EWHC 849 (QB)
Bailii
Access to Justice Act 1999 11, Community Legal Service (Costs Protection) Regulations 2000 5, Community Legal Service (Costs) Regulations 2000 9
England and Wales
Citing:
Cited – Regina (Gunn) v Secretary of State for the Home Department Regina (Kelly) v Same Regina (Zahid Khan) v Same CA 14-Jun-2001
The new Regulations and court rules expressly reserved to a costs judge the decision about whether a costs order should be made against the Legal Services Commission. The former practice of the trial judge making this decision must no longer apply. . .

Lists of cited by and citing cases may be incomplete.

Legal Aid, Costs

Updated: 02 November 2021; Ref: scu.431737

Sibthorpe and Morris v London Borough of Southwark: CA 25 Jan 2011

The court was asked as to the extent to which the ancient rule against champerty prevents a solicitor agreeing to indemnify his claimant client against any liability for costs which she may incur against the defendant in the litigation in which the solicitors are to act for her.
Held: The defendant’s appeal failed. The Conditional Fee Agreement (CFO) was binding. When it comes to agreements involving those who conduct litigation or provide advocacy services, the common law of champerty remains substantially as it was described and discussed in Wallersteiner (No 2) and Awwad. However here, the solicitors would remain liable if the litigation were lost for counsel’s fees, and that took the matter outside a champertous agreement, and Thai Trading could be called in support of this argument, an ‘one of the main reasons for not curtailing the scope of champerty in relation to contracts involving those who conduct litigation is that Parliament has stepped into that area. That is an equally good reason for not expanding the scope of champerty in relation to such contracts.’

Lord Neuberger MR, Lloyd, Gross LJJ
[2011] EWCA Civ 25, [2011] 2 All ER 240, [2011] NPC 11, [2011] 1 WLR 2111
Bailii
Courts and Legal Services Act 1990 58
England and Wales
Citing:
Appeal from – Morris and Another v London Borough of Southwark QBD 5-Feb-2010
The residential tenant claimant sought damages from her council for failure to repair her flat. The counciil now objected to being asked to pay her costs, saying that the agreement with her solicitors was champertous, being a Conditional Fee . .
Cited – Wallersteiner v Moir (No 2) CA 1975
The court was asked whether Moir would be entitled to legal aid to bring a derivative action on behalf of a company against its majority shareholder.
Held: A minority shareholder bringing a derivative action on behalf of a company could obtain . .
Cited – Callery v Gray (No 2) CA 31-Jul-2001
A plaintiff could recover the costs of insuring himself against the risk of having to pay the other sides costs, and finding his own costs irrecoverable (after the event or ATE insurance). The earlier case had decided that such premiums may be . .
Cited – Pittman v Prudential Deposit Bank Ltd CA 1896
The parties had agreed to assign the judgment debt to the solicitor acting.
Held: The agreement was champertous as an assignment of an interest in litigation, and therefore was void, having been made before judgment and even though it had been . .
Cited – British Cash and Parcel Conveyors Ltd v Lamson Store Service Co Ltd 1908
The court explained the law underlying the civil and criminal penalties for the maintenance of an action by third parties: ‘It is directed against wanton and officious intermeddling with the disputes of others in which the [maintainer] has no . .
Cited – Regina (Factortame Ltd and Others) v Secretary of State for Transport, Local Government and the Regions (No 8) CA 3-Jul-2002
A firm of accountants had agreed to provide their services as experts in a case on the basis that they would be paid by taking part of any damages awarded. The respondent claimed that such an agreement was champertous and unlawful.
Held: The . .
Cited – Hill v Archbold CA 1968
Denning LJ said: ‘Much maintenance is considered justifiable today which would in 1914 have been considered obnoxious. Most of the actions in our courts are supported by some association or other, or by the State itself. Comparatively a few . .
Cited – Trendtex Trading Corporation v Credit Suisse CA 1980
A stay was sought against a bank which had financed a contract and was supporting litigation arising out of it.
Held: Although the liability in crime and tort had been abolished, Section 14(2) of the 1967 Act preserved the law as to the cases . .
Cited – Giles v Thompson CA 1992
The interest that the rule of champerty exists to protect (the individual interest) is that of the opposite party. Steyn LJ described contingency fee agreements as ‘nowadays perhaps the most important species of champerty’ and were ‘still unlawful’. . .
Cited – Giles v Thompson, Devlin v Baslington (Conjoined Appeals) HL 1-Jun-1993
Car hire companies who pursued actions in motorists’ names to recover the costs of hiring a replacement vehicle after an accident, from negligent drivers, were not acting in a champertous and unlawful manner. Lord Mustill said: ‘there exists in . .
Cited – Swain v The Law Society HL 1983
The Solicitors’ Practice Rules had the force of a statute, being rules made by the Council of the Law Society with parliamentary sanction for the protection of that section of the public who might be in need of legal advice, assistance or oversight. . .
Cited – Kenneth L Kellar Carib West Limited v Stanley A Williams PC 24-Jun-2004
(Turks and Caicos Islands) The appellant had failed in his action but argued that he should not be called upon to pay the costs of the respondent because there had been an unlawful conditional fee agreement. The bill had referred to one factor as . .
Mentioned – In re Trepca Mines (No 2) CA 1962
Champerty: Lord Denning MR said: ‘The reason why the common law condemns champerty is because of the abuses to which it may give rise. The common law fears that the champertous maintainer might be tempted, for his own personal gain, to inflame the . .
Cited – Trendtex Trading Corporation v Central Bank of Nigeria CA 1977
The court considered the developing international jurisdiction over commercial activities of state bodies which might enjoy state immunity, and sought to ascertain whether or not the Central Bank of Nigeria was entitled to immunity from suit.
Cited – Thai Trading (a Firm) v Taylor and Taylor (of Taylors Solicitors, Caversham) CA 27-Feb-1998
A solicitor had agreed with his wife to act for her in litigation on the understanding that he would only recover his profit costs if she succeeded.
Held: This agreement did not offend public policy. This type of agreement was distinguished . .
Cited – Hughes v Kingston Upon Hull City Council QBD 9-Nov-1998
The Solicitors Practice Rules have the effect of law, and it is still improper to agree to pursue contentious proceedings on a contingency fee arrangement without specific statutory sanction, especially in criminal proceedings. An agreement for . .
Cited – Geraghty and Co v Awwad and Another CA 25-Nov-1999
The court considered an assertion that a contract for fee sharing with a solicitors firm was unenforceable being in breach of the Solicitors Practice Rules.
Held: The court refused to follow Thai Trading. There should no longer be any common . .

Cited by:
Cited – Simpson v Norfolk and Norwich University Hospital NHS Trust CA 12-Oct-2011
The court was asked whether it was possible to assign as a chose in action a cause of action in tort for damages for personal injury, and if so under what circumstances it was possible.
Held: The appeal was dismissed. The claimant did not have . .

Lists of cited by and citing cases may be incomplete.

Costs, Legal Professions

Updated: 02 November 2021; Ref: scu.428246

Rolf v De Guerin: CA 9 Feb 2011

The parties had disputed a building contract. A Part 36 offer had been made by the builder defendant, but the judgment was for rather less, and the judge awarded the claimant her costs.
Held: The court exercised its discretion to set aside the order and make no order for costs: ‘The Part 36 mechanism provides a formal, regulated, procedure for a party, including a claimant, to express a willingness to accept something less than total success in his open position in the litigation. If the offer is not accepted and the offeror does better in the final result than his offer, he is entitled, unless the court considers it would be unjust, to costs on an indemnity basis from the expiry of the ‘relevant period’ (ie a basic three weeks, unless the offer extends it) plus interest at an enhanced rate up to 10% above base rate. Therefore there are advantages to a party in pitching his offer realistically, and there are potential disadvantages to an offeree in declining the offer. However, there is nothing about the procedure which states that an offeror is to be prejudiced as to costs because he has expressed his willingness to accept less than his open position. That would make the procedure a most dangerous one to use. The judge’s ruling that the incidence of costs should change at the expiry of the relevant period of three weeks confirms the illogicality of his decision. The three weeks is given to protect the offeree, who has that period to make up his mind: the judge used it, however, (to its limited extent) to protect the offeror’

Rix, Elias, Tomlinson LJJ
[2011] EWCA Civ 78
Bailii
England and Wales
Citing:
Cited – Aspin v Metric Group Ltd CA 24-Jul-2007
. .
Cited – Dunnett v Railtrack plc CA 22-Feb-2002
The claimant had appealed a judgment against her. The court itself recommended that the parties use a method of alternate dispute resolution, to avoid the need for appeal. The defendant refused, not wishing to make any payment over and above the . .
Cited – Halsey v Milton Keynes General NHS Trust etc CA 11-May-2004
The court considered the effect on costs orders of a refusal to take part in alternate dispute resolution procedures. The defendant Trust had refused to take the dispute to a mediation. In neither case had the court ordered or recommended ADR.
Cited – Reed Executive Plc, Reed Solutions Plc v Reed Business Information Ltd, Reed Elsevier (Uk) Ltd, Totaljobs.Com Ltd CA 14-Jul-2004
Walker v Wilshire still Good Law
After successfully appealing, the defendant claimant argued for a substantial part of its costs, saying that the defendant had unreasonably refused ADR. To pursue this, it now sought disclosure of the details of the without prejudice negotiations . .
Cited – Burchell v Bullard and others CA 8-Apr-2005
Each side had succeeded in part on their claims and counterclaims, but the Respondent was andpound;5,000 out of pocket. Each party had been ordered to pay the costs of the other.
Held: The appeal succeeded. The judge had correctly recognised . .

Lists of cited by and citing cases may be incomplete.

Costs

Updated: 02 November 2021; Ref: scu.428864

Raggett v John Lewis Plc: EAT 17 Aug 2012

raggett_lewisEAT2012

EAT PRACTICE AND PROCEDURE – Costs
In determining the amount of costs to be awarded having decided that the bringing of an unfair dismissal claim was misconceived and that a costs order should be made against the Claimant paying party, applying Barnsley Metropolitan Borough Council v Yerrakalva [2012] IRLR 78 to the exercise of their discretion as to the amount of costs to be awarded under the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 rule 40, an Employment Tribunal should look at the whole picture of what happened in the case and identify what effects the Claimant’s misconceived claim had on the proceedings and associated costs. Applying respectively Barnsley and Kopel v Safeway Stores plc [2003] IRLR 753 the ET can take into account the receiving party’s unreasonable litigation conduct and an unreasonable refusal by the Claimant of a settlement offer. In both cases, findings of fact are needed to support such conclusions. In this case the ET did not err in the assessment of the amount of costs they ordered the Claimant to pay the Respondent save that the Claimant’s appeal from the inclusion of an amount of VAT in such costs succeeded. VAT should not be included in costs ordered to be paid under rule 40 if the receiving party is able to reclaim VAT as input tax. Although the detailed provisions of the CPR do not apply to proceedings before ETs their general principles do (Neary v St Albans Girls’ School [2010] ICR 473 per Smith LJ paragraph 47). Costs are compensatory not punitive. This principle is reflected in paragraph 5.3 of the Costs Practice Direction 5.3.
Award of costs reduced to exclude a sum in respect of VAT.

Slade DBE J
[2012] UKEAT 0082 – 12 – 1708
Bailii
Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 40
England and Wales
Citing:
Cited – Kopel v Safeway Stores Plc EAT 11-Apr-2003
EAT The Tribunal had concluded that the claimant’s refusal of an employer’s offer amounted to unreasonable conduct.
Held: Mittig J said: ‘The Employment Appeal Tribunal had not erred in exercising its . .
Cited – Barnsley Metropolitan Borough Council v Yerrakalva CA 3-Nov-2011
The claimant had issued claims in discrimination. She withdrew the claim, but still had a costs order made against her. She appealed and succeeded, and the Council now sought re-instatement of the costs order.
Held: The Court made clear the . .
Cited – Yerrakalva v Barnsley Metropolitan Borough Council and Another EAT 8-Dec-2010
EAT PRACTICE AND PROCEDURE – Costs
Discrimination claim withdrawn – Judge awards Rs 100% of their costs, not on the basis that the claim had been misconceived or unreasonably pursued from the start but . .
Cited – St Albans Girls’ School and Another v Neary CA 20-Nov-2009
The amount of costs ordered under rule 41 should be governed by the same general principles as in the civil courts. . .

Lists of cited by and citing cases may be incomplete.

Employment, Costs

Updated: 02 November 2021; Ref: scu.463688

Liddington v 2Gether NHS Foundation Trust: EAT 28 Jun 2016

Award of Costs Against ET litigant in person

EAT PRACTICE AND PROCEDURE – Costs
The appeal challenges a decision to award costs based on a finding of unreasonable conduct by the Claimant and a subsequent refusal to reconsider that Order.
Having dealt with a number of earlier Preliminary Hearings, the Employment Judge was familiar with the pleadings and the issues to be addressed and was in the best position to consider and determine whether the Claimant’s conduct was unreasonable when looked at in the round and in the knowledge of the issues that would have to be dealt with at a Full Hearing if it came to it. The Employment Judge expressly recognised that the standard of pleading expected of a lawyer did not apply to the Claimant and that she could not be expected to provide a detailed legal pleading. However, the Employment Judge concluded that the Claimant should have been able to articulate in layman’s terms what it is that was said or done, by whom and on what dates that formed the basis of her complaints. The Employment Judge found that the Claimant was not able to do this on 12 May 2015. She gave a few examples of this inability. She found that the Claimant could not identify the dates of four of the six protected acts referred to, nor the detriments relied upon, nor the names and characteristics of actual or hypothetical comparators for the direct and harassment discrimination claims. The Employment Judge held that the significance of the Claimant’s inability to relay the dates of the acts was highlighted in the hearing when she concluded that certain alleged detrimental acts pre-dated the protected acts relied on and thus could not be pursued. The Employment Judge concluded that, notwithstanding that the Claimant is a litigant in person and not to be held to the standards of a lawyer, given the number of earlier hearings at which detailed particulars were sought to be elicited from her, her inability to provide the particulars required at the hearing on 12 May 2015 amounted to unreasonable conduct.
The grounds disclosed no arguable error of law relating to either decision. The finding of unreasonable conduct was not based on inability alone. The decision is adequately reasoned and causation adequately identified. Nor was the high threshold for a perversity appeal even arguably established.

Simler DBE P J
[2016] UKEAT 0065 – 16 – 2806, [2016] UKEAT 0002 – 16 – 2806
Bailii, Bailii
England and Wales

Employment, Costs

Updated: 02 November 2021; Ref: scu.570974

Excalibur Ventures Llc v Texas Keystone Inc and Others: CA 18 Nov 2016

Excalibur had entered into a conditional fee agreement with its solicitors to suport its intended claim against the respondents. Funders had advanced some andpound;13m to take the mater forward.

Tomlinson, Gloster, David Richards LJJ
[2016] EWCA Civ 1144
Bailii
Senior Courts Act 1981 51(3)
England and Wales
Citing:
Cited – Hamilton v Al Fayed and Others (No 2) CA 17-May-2002
The claimant had lost a libel action and been bankrupted. The defendant sought to recover his costs from those who had financially supported the claimant. He now appealed a dismissal of his request for contributions.
Held: An order for the . .
Appeal from – Excalibur Ventures Llc v Texas Keystone Inc and Others ComC 3-Feb-2015
. .
Cited – Dymocks Franchise Systems (NSW) Pty Ltd v Todd and others (No. 2) PC 21-Jul-2004
PC (New Zealand) Costs were sought against a non-party, following an earlier determination by the Board.
Held: Jurisdiction to make such an order was not complete. Where the order sought was against a . .
Cited – Excalibur Ventures Llc v Texas Keystone Inc and Others ComC 28-Jun-2011
The court gave its reasons for the grant of an order restraining the claimant from also pursuing arbitration proceedings at the International Court of Arbitration.
Held: Gloster J was, found on the evidence then before her a strong arguable . .

Lists of cited by and citing cases may be incomplete.

Costs

Updated: 02 November 2021; Ref: scu.571747

Buglife – The Invertebrate Conservation Trust, Regina (on the Application of) v Thurrock Thames Gateway Development Corp: CA 4 Nov 2008

The court considered an application for a protective costs order in judicial review proceedings in environmental law cases.
Held: The central decision was Corner House Research, but that was to be applied purposively and not rigidly. It was appropriate for the court to enquire as to the claimants arrangements with his lawyers as to costs, including any success fee negotiated. In this case the parties had not followed the recommended practice, and the defendant had not applied for a cap on the costs awarded, and ‘In the rare case in which it is necessary to have an oral hearing, it should last a short time as contemplated in Corner House and it should take place in good time before the hearing of the substantive application for judicial review so that the parties may know the position as to their potential liabilities for costs in advance of incurring the costs.’
On an appeal, the court should consider the continuation of the PCO on any application for leave. Without wishing itself to judge the prospects of success, the PCO had been properly limited on this appeal, so that Buglife did face some risk if it proceeded.

Sir Anthony Clarke, Maurice Lay LJ, Stanley Burnton LJ
[2008] EWCA Civ 1209, Times 18-Nov-2008
Bailii
England and Wales
Citing:
Appeal from – Buglife (the Invertebrate Conservation Trust), Regina (on the Application of) v Thurrock Thames Gateway Development Corp and Another Admn 22-Feb-2008
. .
Cited – Corner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry CA 1-Mar-2005
The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the . .
Cited – Compton, Regina (on the Application of) v Wiltshire Primary Care Trust Admn 26-Nov-2007
Applicaton for protective costs order. The court considered the report of a working group on such orders which said that to be suitable for a PCO a case must be a ‘public interest case’, but found it difficult to define what sort of case fell within . .
Cited – Bullmore and Another v West Hertfordshire Hospitals NHS Trust Admn 9-Jul-2007
Challenge to Trust’s decision to close local hospital. . .
Cited – Bullmore, Regina (on the Application of) v West Hertfordshire Hospitals NHS Trust CA 8-Jun-2007
Renewed application for protective costs order. . .
Cited – King v Telegraph Group Ltd CA 18-May-2004
The defendant appealed against interim costs orders made in the claim against it for defamation.
Held: The general power of cost capping measures available to courts were available also in defamation proceedings. The claimant was being . .

Cited by:
See Also – Buglife – The Invertebrate Conservation Trust, Regina (on the Application of) v Thurrock Thames Gateway Development Corporation and Another CA 28-Jan-2009
Buglife appealed against refusal of judicial review of a decision to grant planning permission for the site of a former power station saying that it would adversely affect the environment for invertebrate animals. It now sought a protective costs . .
Cited – Eweida v British Airways plc CA 16-Oct-2009
Appeal against refusal of protective costs order. The claimant said that she had been discriminated against when she was refused permission to wear her christian cross with her uniform. . .

Lists of cited by and citing cases may be incomplete.

Costs, Environment, Judicial Review

Updated: 02 November 2021; Ref: scu.277386

Ideal Bedding Company Ltd v Holland: 1907

The plaintiffs had obtained against the trustees an order that the settlement was void as against the plaintiffs and other creditors. The court considered the trustees’ position on costs.
Held: A trustee has a duty to defend the trust, and where he defended the action, he was entitled to his costs out of the trust estate.

Kekewich J
[1907] 2 Ch 157
Cited by:
Doubted – Alsop Wilkinson v Neary and Others ChD 4-Nov-1994
The second defendant, a solicitor, had fraudulently taken money from trusts, and paid money into trusts for his own family. It was claimed that the payments were intended to defeat the recovery of the funds. The trustees sought protection on costs . .

Lists of cited by and citing cases may be incomplete.

Trusts, Costs

Leading Case

Updated: 02 November 2021; Ref: scu.198267

Usk Valley Conservation Group, Regina (on The Application of) v Brecon Beacons National Park Authority: Admn 18 Feb 2010

Ouseley J
[2010] EWHC 2481 (Admin)
Bailii
England and Wales
Citing:
See Also – Usk Valley Conservation Group and Others, Regina (on The Application of) v Brecon Beacons National Park and Others Admn 27-Jan-2010
The claimants challenged the validity of a planning permission allowing the transfer of a camping site permission out of a flood zone.
Held: Ouseley J considered whether the cost of compensation on the amendment of a permission was a material . .

Lists of cited by and citing cases may be incomplete.

Planning, Costs

Updated: 02 November 2021; Ref: scu.427277

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, but equally refused to award the defendant her costs. She now appealed against the refusal to grant judicial review of that decision.
Held: The appeal failed. Applying the Bradford magistrates case, where that principle applied, the normal order was that no costs should be awarded. The Bradford principle was not limited to licensing cases. It was accepted by all parties that the police suspicion was reasonable, and that they had no choice other than to request forfeiture. They should not be deterred from making such a proper application for fear of a costs award against them.
Stanley Burnton LJ set out the principles derived: ‘(1) As a result of the decision of the Court of Appeal in Baxendale-Walker, the principle in the City of Bradford case is binding on this Court. Quite apart from authority, however, for the reasons given by Lord Bingham LCJ I would respectfully endorse its application in licensing proceedings in the magistrates’ court and the Crown Court.
(2) For the same reasons, the principle is applicable to disciplinary proceedings before tribunals at first instance brought by public authorities acting in the public interest: Baxendale-Walker.
(3) Whether the principle should be applied in other contexts will depend on the substantive legislative framework and the applicable procedural provisions.
(4) The principle does not apply in proceedings to which the CPR appl
(5) Where the principle applies, and the party opposing the order sought by the public authority has been successful, in relation to costs the starting point and default position is that no order should be made.
(6) A successful private party to proceedings to which the principle applies may nonetheless be awarded all or part of his costs if the conduct of the public authority in question justifies it.
(7) Other facts relevant to the exercise of the discretion conferred by the applicable procedural rules may also justify an order for costs. It would not be sensible to try exhaustively to define such matters, and I do not propose to do so.’

Lord Neuburger of Abbotsbury, Master of the Rolls, Lord Justice Maurice Kay and Lord Justice Stanley Burnton
[2010] EWCA Civ 40, [2010] 1 WLR 1508
Bailii, Times
Magistrates Courts Act 1980 820, Proceeds of Crime Act 2002
England and Wales
Citing:
Cited – Baxendale-Walker v Law Society CA 15-Mar-2007
The solicitor appealed a finding that he had given a reference which he knew to be inappropriate, and his consequential striking off. The tribunal had found his evidence manifestly untrue.
Held: There were no grounds for disturbing the . .
Appeal from – Perinpanathan v City of Westminster Magistrates Court Admn 10-Mar-2009
The claimant had successfully defended a forfeiture case, but had been refused an order for her costs by the magistrates. The magistrates had found that the case had been properly brought under the 2002 Act, even though it had failed.
Held: . .
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 – Regina v Uxbridge Justices, ex parte Commissioner of Police of the Metropolis CA 1981
The applicant was sentenced to 18 months’ imprisonment for handling stolen currency notes from travellers at an airport. The police retained cash from his house, which he claimed. He applied for its return. The police not having opposed the . .
Cited – Regina v Totnes Licensing Justices, ex parte Chief Constable of Devon and Cornwall QBD 28-May-1990
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 . .
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 – Regina v Stafford Crown Court ex parte Wilf Gilbert (Staffs) Limited Admn 22-Feb-1999
. .
Cited – Manchester City Council v Manchester Crown Court 2009
The local authority had unsuccessfully sought an anti-social behaviour order. It failed, and the court now considered the award of costs.
Held: The application had been properly made but had failed only because of progress subsequently made in . .
Cited – Cambridge City Council, Regina (On the Application of) v Alex Nestling Ltd Admn 17-May-2006
. .
Cited – Re Southbourne Sheet Metal Co Ltd CA 9-Sep-1992
The Secretary of State for Trade and Industry had sought orders of disqualification against the director and a co-director under the provisions of the Company Directors Disqualification Act 1986. The Secretary of State’s summons was supported by an . .
Cited – British Telecommunications Plc v Office of Communications CAT 20 CAT 27-May-2005
The dispute giving rise to the appeal had been between BT and Vodafone, which had supported the Office of Communications. Although BT had been successful, the tribunal refused to award it its costs.
Held: The Tribunal’s Rules conferred an . .
Not authoritative – Orton v Truro Crown Court and Another Admn 21-Jan-2009
An application had been made under section 298 of the 2002 Act for the forfeiture of cash. The application had been dismissed by the magistrates’ court, but they also refused order the defendant’s costs. The police appealed to the Crown Court . .
Cited – Re Elgindata Ltd (2) CA 15-Jul-1992
A successful plaintiff who had not been shown to have behaved improperly or unreasonably was not to have his costs reduced or be ordered to pay any part of his opponents costs for having pursued some unsuccessful points. Nourse LJ said that ‘(i) . .
Cited – In re Highfield Commodities Ltd ChD 1985
The court’s discretion in appointing provisional liquidators is unfettered provided it is exercised in a ‘proper judicial manner’. Sir Robert Megarry V-C said: ‘I would respectfully express my complete agreement with the view taken by [the judge]. I . .
Cited – Kirklees Metropolitan Borough Council v Wickes Building Supplies Ltd HL 1992
A public authority is not required as a rule to give a cross undertaking in damages in a law enforcement action. As to the legal status of the statutory instrument in question, the courts could ‘declare it to be invalid’ if satisfied that the . .
Cited – Re Southbourne Sheet Metal Co Ltd CA 9-Sep-1992
The Secretary of State for Trade and Industry had sought orders of disqualification against the director and a co-director under the provisions of the Company Directors Disqualification Act 1986. The Secretary of State’s summons was supported by an . .
Cited – Donald Campbell v Pollak HL 1927
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 . .
Cited – Grimes v Crown Prosecution Service CA 27-Nov-2003
The CPS sought to enforce a confiscation order made by the Crown Court in proceedings against the claimant’s husband. She successfully established that she had been beneficially entitled to a one-half interest in the matrimonial home, and was . .
Cited – Walker v Royal College of Veterinary Surgeons PC 21-Nov-2007
The committee allowed the veterinary surgeon’s appeal for his removal from the register, substituting a six months’ suspension. The College opposed his request for his costs.
Held: The costs should be awarded.
Lord Mance said: ‘The Royal . .

Cited by:
Cited – Wiese v The UK Border Agency Admn 29-Jun-2012
The claimant challenged a decision to seize a sustantial sum of cash being carried by him whilst passing through London City Airport. In the magistrates court, the claimant had objected to the reliance on parts of a customs officer’s statement which . .
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 . .

Lists of cited by and citing cases may be incomplete.

Magistrates, Costs

Updated: 01 November 2021; Ref: scu.396600

In re Beddoe, Downes v Cottam: CA 1893

In case of doubt as to the desirability of the intended proceedings (whether as plaintiff or defendant), trustees may apply to the court for directions. This will protect the trustees from adverse costs orders. If given leave to sue or defend by the court, they are entitled to an indemnity for their costs out of the trust fund. The Order provided: ‘Subject to the provisions of the Acts and these rules, the costs of and incident to all proceedings in the Supreme Court, including the administration of estimates and trusts, shall be in the discretion of the Court or judge . .’

[1893] 1 Ch 547
Order LXV Rule 1
England and Wales
Cited by:
Cited – Singh v Bhasin and Others ChD 21-Aug-1998
A trustee who defended a claim would always be at risk of an order to pay the costs personally even if advised by counsel to defend if he did not seek a protective Beddoe order before defending. . .
Cited – Alsop Wilkinson v Neary and Others ChD 4-Nov-1994
The second defendant, a solicitor, had fraudulently taken money from trusts, and paid money into trusts for his own family. It was claimed that the payments were intended to defeat the recovery of the funds. The trustees sought protection on costs . .
Cited – Re Biddencare Ltd ChD 1994
The court set out the principles applicable on making a Beddoe application. The court should consider the strength of the case, the likely costs order in the eventual proceedings, and the justice of the application itself. . .
Cited – Corner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry CA 1-Mar-2005
The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the . .
Cited – Wallersteiner v Moir (No 2) CA 1975
The court was asked whether Moir would be entitled to legal aid to bring a derivative action on behalf of a company against its majority shareholder.
Held: A minority shareholder bringing a derivative action on behalf of a company could obtain . .
Cited – Dagnell and Another v J L Freedman and Co and Others HL 5-Apr-1993
The plaintiffs, trustees of the will, sued the solicitors who had prepared it in negligence. They issued the writ some 7 months before the limitation date for their claim, but did not then serve it. They were advised first to make an application to . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Trusts

Leading Case

Updated: 01 November 2021; Ref: scu.183455

Austin and Others v Miller Argent (South Wales) Ltd: CA 29 Jul 2011

The claimants appealed against refusal of a Group Litigation Order (GLO). Over 500 parties wished to claim in nuisance caused by open cast mining operations conducted by the defendants.
Held: The appeals failed. The making of a GLO is a matter of discretion. At the hearing it was not clear that any claimant would be able to proceed, and it had since become clear that After The Event costs insurance would not be obtainable. The applicants had not complied with the requirements for the making of an order, and none had yet issued proceedings. The judge had already adjourned the application to allow progress by the potential claimants, and his refusal to allow a further adjournment could not be criticised.
The defendants had already issued a bill of costs for over andpound;250.000. The potential claimants said that the Aarhus Convention should apply to limit them. On analysis and after concessions by the defendant the court established that no potential cliamant should to date face any liability greater than andpound;362. The Aarhus convention claim had to have been raised in the court below, and there was no evidence before the court to apply it now.
As to the protective costs order, the sums before the court, after undertakings by the defendant, were not excessive: ‘every uninsured person who embarks upon litigation, must accept some degree of cost risks. There are strong policy reasons why this should be so, not least to maintain proper discipline over litigation, to incentivise reasonable litigation behaviour and to reduce the financial burden upon those who are vindicated. The Aarhus Convention does not require that environmental litigation should be cost free, merely that it should be not prohibitively expensive.’

Pill, Jackson, Gross LJJ
[2011] EWCA Civ 928
Bailii
Civil Procedure Rules 19, Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters made at Aarhus, Denmark on 25 June 1998
England and Wales
Citing:
Cited – Corner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry CA 1-Mar-2005
The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the . .
Cited – Edwards and Another, Regina (on The Application of) v Environment Agency and Others SC 15-Dec-2010
Clarification was sought of the costs principles applicable on an application to the House of Lords. The paying party said that it was a requirement of the 1998 Convention under which the application fell, that a remedy should not be available only . .
Cited – Morgan and Another v Hinton Organics (Wessex) Ltd CA 2-Mar-2009
The claimants had alleged that smells from a composting site near their homes constituted a private nuisance. Following the discharge of an interim injunction, Judge Seymour ordered the claimants to pay the costs of the injunction proceedings. The . .
Cited – Eweida v British Airways plc CA 16-Oct-2009
Appeal against refusal of protective costs order. The claimant said that she had been discriminated against when she was refused permission to wear her christian cross with her uniform. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs, Environment

Updated: 01 November 2021; Ref: scu.442415

Whitston (Asbestos Victims Support Groups Forum UK), Regina (on The Application of) v Secretary of State for Justice: Admn 2 Oct 2014

The claimants challenged the selection by the defendant of victims of meselothemia as a group were excluded from entitlement to the recovery of success fees and insurance premiums paid by successful claimants from unsuccessful defendants.
Held: The claim succeeded. The basis of the decision to exclude such claims was quite inadequate as a consultation: ‘The issue is whether the Lord Chancellor conducted a proper review of the likely effect of the LASPO reforms on mesothelioma claims. For the reasons given above I conclude that he did not. No reasonable Lord Chancellor faced with the duty imposed on him by Section 48 of the Act would have considered that the exercise in fact carried out fulfilled that duty. I do not find that a consultation exercise per se was an inappropriate means of fulfilling the duty. Rather, the nature of this consultation meant that it did not permit the Lord Chancellor to do so.’

William Davis J
[2014] EWHC 3044 (Admin)
Bailii
Legal Aid Sentencing and Punishment of Offenders Act 2012, Access to Justice Act 1999
England and Wales
Citing:
Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited – Regina v Secretary of State for the Environment Transport and the Regions and another, ex parte Spath Holme Limited HL 7-Dec-2000
The section in the 1985 Act created a power to prevent rent increases for tenancies of dwelling-houses for purposes including the alleviation of perceived hardship. Accordingly the Secretary of State could issue regulations whose effect was to limit . .
Cited – The Bard Campaign and Another v Secretary of State for Communities and Local Government Admn 25-Feb-2009
The claimant sought judicial review of the inclusion of their land in lands listed for future development of eco-towns. There had been a consultation which they said was inadequate. The consultation was a general invitation for readers to send in . .
Cited – Secretary of State for Education and Science v Tameside Metropolitan Borough Council HL 21-Oct-1976
An authority investigating an application for registration of rights of common over land has an implied duty to ‘take reasonable steps to acquaint (itself) with the relevant information.’ A mere factual mistake has become a ground of judicial . .
Cited – Regina v Brent London Borough Council ex parte Gunning 1985
The demands of fair consultation procedures will vary from case to case and will depend on the factors involved. The requirements are: ‘First, that consultation must be at a time when proposals are still at a formative stage. Second, that the . .
Cited – Bhatt Murphy (a firm), Regina (on the application of) v The Independent Assessor CA 9-Jul-2008
The appellants each challenged alterations to the scheme for compensation of the victims of miscarriages of justice.
Held: Laws LJ emphasised the special nature of the promise or practice which was necessary to give rise to a substantive . .

Lists of cited by and citing cases may be incomplete.

Costs, Personal Injury

Updated: 01 November 2021; Ref: scu.537244

Kilby v Gawith: CA 19 May 2008

No discretion for refusal of costs

The court was asked whether it has a discretion under Rule 45.11(1) whether or not to award a claimant, who has entered into a conditional fee agreement with his solicitor, the fixed success fee of 12.5%.
Held: The court had no discretion to refuse to a successful claimant the success fee provided for in the conditional fee agreement with her solicitors, where there had been costs only proceeding after a settlement before proceedings of a small personal injury claim.

Sir Anthony Clarke MR, Lady Justice Arden and Lord Justice Dyso
[2008] EWCA Civ 812, Times 13-Jun-2008, [2009] 1 WLR 853
Bailii
England and Wales
Citing:
Cited – Butt v Nizami QBD 9-Feb-2006
The court considered the effect of negotiations on costs claims: ‘Changes were made to the Rules of Court. Some of these changes, and in particular the provisions of Sections II to V of CPR45, were introduced following ‘industry wide’ discussions . .
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: . .

Lists of cited by and citing cases may be incomplete.

Costs, Legal Professions

Updated: 01 November 2021; Ref: scu.270807

Baker v Rowe: CA 6 Nov 2009

H and W, though very elderly, set out for a divorce. A former son-in-law now appealed against a costs order made against him as an intervener under the 1996 Act. The parties disputed his right to appeal without permission.
Held: Under the Family Rules, no consent would be required. 1996 Act proceedings would not be family proceedings. The fact that the 1996 Act had been used did not prevent the proceedings being Family proceedings. However: ‘the son-in-law’s proposed appeal to this court would be a second appeal and that, in accordance with s.55(1) of the Act of 1999 and Rule 52.13(2) of the the Rules of 1998, we cannot give permission unless we consider that the appeal would raise an important point of principle or practice or that there is some other compelling reason for us to hear it.’ Such a point was provided.
The clear purpose behind Rule 2.71(4)(a) of the Rules of 1991 requires its unfocussed reference to ‘ancillary relief proceedings’ to be construed narrowly; and the proceedings before the district judge, as they ultimately developed, were in connection with ancillary relief but not for ancillary relief. Here, the district judge was entitled to pay substantial regard to the fact that the daughter’s assertions had prevailed; that the son-in-law’s assertions had not prevailed; and perhaps in particular, that in 1996 they had both expressly agreed that he would not assert any claim to the property, including obviously any claim to an existing beneficial interest in it. Though legally aided, the costs order against him was appropriate.

Ward, Wilson, Leverson LJJ
[2009] EWCA Civ 1162, [2010] 1 FCR 413, [2010] 2 Costs LR 175, [2010] Fam Law 17, [2010] 1 FLR 761
Bailii
Family Proceedings Rules 1991 8.1(1), Trusts of Land and Appointment of Trustees Act 1996, Supreme Court Act 1981 Sch 1
England and Wales
Citing:
Cited – Riniker v University College London (Practice Note) CA 5-Apr-2001
The Employment Appeal Tribunal does not have jurisdiction to hear an appeal which does not set out to disturb any part of the order made by the original tribunal. There is no inherent power in the Court of Appeal to bypass the prohibition in . .
Cited – Tebbutt v Haynes 1981
A finding in ancillary relief proceedings is not binding on others who were not themselves parties, and third parties should be allowed to be joined if necessary.
Lord Denning MR said: ‘It seems to me that, under section 24 of the 1973 Act, if . .
Cited – Judge v Judge and others CA 19-Dec-2008
The wife appealed against an order refusing to set aside an earlier order for ancillary relief in her divorce proeedings, arguing that it had been made under a mistake. The sum available for division had had deducted an expected liabiliity to the . .

Lists of cited by and citing cases may be incomplete.

Family, Costs

Updated: 01 November 2021; Ref: scu.377776

Walker v Wilsher: CA 1889

Letters or conversations which were written or declared to be ‘without prejudice’ may not be taken into consideration in determining whether there is good cause for depriving a successful litigant of his costs.
Lord Esher MR said: ‘The letters and the interview were without prejudice, and the question is whether under such circumstances they could be considered in order to determine whether there was good cause or not for depriving the plaintiff of costs. It is, I think, a good rule to say that nothing which is written or said without prejudice should be looked at without the consent of both parties, otherwise the whole object of the limitation would be destroyed. I am, therefore, of opinion that the learned judge should not have taken these matters into consideration.’
Lindley LJ said: ‘What is the meaning of the words ‘without prejudice’? I think they mean without prejudice to the position of the writer of the letter if the terms he proposes are not accepted. If the terms proposed in the letter are accepted a complete contract is established, and the letter, although written without prejudice, operates to alter the old state of things and to establish a new one. A contract is constituted in respect of which relief by way of damages or specific performance would be given. Supposing that a letter is written without prejudice then, according both to authority and to good sense, the answer also must be treated as made without prejudice.’
and ‘No doubt there are cases where letters written without prejudice may be taken into consideration, as was done the other day in a case in which a question of laches was raised. The fact that such letters have been written and the dates at which they were written may be regarded, and in so doing the rule to which I have adverted would not be infringed. The facts may, I think, be given in evidence, but the offer made and the mode in which that offer was dealt with – the material matters, that is to say, of the letters – must not be looked at without consent.’
Bowen LJ said: ‘In my opinion it would be a bad thing and lead to serious consequences if the Courts allowed the action of litigants, on letters written to them ‘without prejudice’, to be given in evidence against them or to be used as material for depriving them of costs. It is most important that the door should not be shut against compromises, as would certainly be the case if letters written ‘without prejudice’ and suggesting methods of compromise were liable to be read when a question of costs arose.’ and ‘What is the meaning of the words ‘without prejudice’? I think they mean without prejudice to the position of the writer of the letter if the terms he proposes are not accepted. If the terms proposed in the letter are accepted a complete contract is established and the letter, although written without prejudice, operates to alter the old state of things and to establish a new one.’

Bowen LJ, Lord Esher MR, Lindley LJ
(1889) 23 QBD 335
England and Wales
Cited by:
Cited – Reed Executive Plc, Reed Solutions Plc v Reed Business Information Ltd, Reed Elsevier (Uk) Ltd, Totaljobs.Com Ltd CA 14-Jul-2004
Walker v Wilshire still Good Law
After successfully appealing, the defendant claimant argued for a substantial part of its costs, saying that the defendant had unreasonably refused ADR. To pursue this, it now sought disclosure of the details of the without prejudice negotiations . .
Cited – Rush and Tompkins Ltd v Greater London Council and Another HL 1988
Use of ‘Without Prejudice Save as to Costs”
A sub-contractor sought payment from the appellants under a construction contract for additional expenses incurred through disruption and delay. The appellants said they were liable to pay the costs, and were entitled to re-imbursement from the . .
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Applied – Stotesbury v Turner 1943
Without prejudice negotiations are, as a matter of public policy, to be protected from disclosure to the court seized of the dispute. An arbitrator has the same discretion as to costs as has a High Court judge. . .
Cited – Rush and Tomkins Ltd v Greater London Council HL 3-Nov-1988
The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the . .
Cited – Oceanbulk Shipping and Trading Sa v TMT Asia Ltd CA 15-Feb-2010
The parties had settled their disagreement, but now disputed the interpretation of the settlement. The defendant sought to be allowed to give in evidence correspondence leading up to the settlement which had been conducted on a without prejudice . .
Cited – Oceanbulk Shipping and Trading Sa v TMT Asia Ltd and Others SC 27-Oct-2010
The court was asked whether facts which (a) are communicated between the parties in the course of without prejudice negotiations and (b) would, but for the without prejudice rule, be admissible as part of the factual matrix or surrounding . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs

Leading Case

Updated: 01 November 2021; Ref: scu.199274

Hamilton v Al Fayed and Others (No 2): CA 17 May 2002

The claimant had lost a libel action and been bankrupted. The defendant sought to recover his costs from those who had financially supported the claimant. He now appealed a dismissal of his request for contributions.
Held: An order for the payment of costs by a n’oure funder’ on-party will always be exceptional. ‘Exceptional’ means as compared to the generality of litigation, and should be based only on a substantial connection between the litigation and the person against whom the costs order is sought. The court should generally try to discourage satellite litigation. Causation is also a required pre-condition of a section 51 order, and in this case was not established.
A successful unfunded party’s ability to recover his costs had to yield to the funded party’s right of access to the courts. The pure funding of litigation was in the public interest provided that its essential motivation was to enable the funded party to litigate what the funders perceived to be a genuine case.

Lady Justice Hale
Times 17-Jun-2002, Gazette 20-Jun-2002, [2002] EWCA Civ 665, [2003] QB 1175
Bailii
Supreme Court Act 1981 51
England and Wales
Citing:
Cited – Aiden Shipping Co Ltd v Interbulk Ltd (The ‘Vimeira’) HL 1986
Wide Application of Costs Against Third Party
A claim had been made against charterers by the ship owners, and in turn by the charterers against their sub-charterers. Notice of motion were issued after arbitration awards were not accepted. When heard, costs awards were made, which were now . .
Cited – Symphony Group Plc v Hodgson CA 4-May-1993
Nine rules were set out for allowing a costs order against someone who is not a party to the action. Such orders should be exceptional. The normal rule is that witnesses in either civil or criminal proceedings enjoy immunity from any form of civil . .
Cited – Globe Equities Ltd v Globe Legal Services Ltd and others and Other Actions CA 5-Mar-1999
A court which was considering ordering a third party, who was not party to the action, to pay costs in an action, should first be satisfied that it is just to do so in all the circumstances. There is no need to establish any exceptional . .

Cited by:
Cited – Arkin v Borchard Lines Ltd and others CA 26-May-2005
The court considered the costs aftermath of a huge claim undertaken on a no win no fee basis and failing. The funder of the claim complained at an award of costs against it.
Held: Those who fund litigation must accept that their risks extend . .
Cited – Nelson v Greening and Sykes (Builders) Ltd CA 18-Dec-2007
The builders had obtained a charging order for the costs awarded to them in extensive litigation, and a third party costs order but without the third party having opportunity to test the bill delivered. They had agreed to sell land to the defendant, . .
Cited – Excalibur Ventures Llc v Texas Keystone Inc and Others CA 18-Nov-2016
Excalibur had entered into a conditional fee agreement with its solicitors to suport its intended claim against the respondents. Funders had advanced some andpound;13m to take the mater forward. . .

Lists of cited by and citing cases may be incomplete.

Costs, Defamation

Leading Case

Updated: 01 November 2021; Ref: scu.171283

Orientfield Holdings Ltd v Bird and Bird Llp: ChD 26 Jun 2015

The c;aimant alleged breach of contract and or professional negligence by the defendant solicitors when acting for it in the purchase of land. Contracts had been exchnged but on the discovery of proposed development nearby, they had failed to complete, forfeiting the deposit. The claimant said that the solicitors had failed to reveal the planning proposals.
Held: The defendant had failed in its duties. ‘ the defendants could not be criticised if in fact they had not carried out a Plansearch. This follows from the first of the general propositions set out above. However, having carried out such a search, then in my judgment Mr Baker came under a duty to explain the results of that search to his client. ‘ and ‘The duty to communicate matters actually known to a solicitor is to communicate information that may be material, thereby setting the threshold for information to be communicated at an intentionally low level. Solicitors do not generally advise on the business merits of transactions they are instructed to facilitate. The business judgments involved are those of the client, not the solicitor, and it is for the client to judge the impact of the material that may be relevant, not the solicitor.’

Pelling QC HHJ
[2015] EWHC 1963 (Ch), [2015] PNLR 33, [2015] 6 Costs LO 667
Bailii
England and Wales
Citing:
Cited – Boateng v Hughmans (A Firm) CA 10-May-2002
The court was asked: ‘What has to be proved by the claimant in a case where the negligence of his solicitor has consisted of the failure to give him proper advice, in order to establish a sufficient causal link between the solicitor’s negligence and . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Costs, Contract, Legal Professions

Updated: 01 November 2021; Ref: scu.550034

Cadbury UK Ltd v The Comptroller General of Patents Designs and Trade Marks: ChD 7 Jul 2016

The intervener sought an order in its favour after its petition had been successful.
Held: The application failed. Such an application had to meet three conditions: 1) Success of the petition; 2) The intervention had made a real contribution, and 3) its contribution did not repeat the submissions of the principals. In this case the intervener met the first and third conditions but not the second.

John Baldwin QC
[2016] EWHC 1609 (Ch), [2016] WLR(D) 373
Bailii, WLRD
England and Wales

Intellectual Property, Costs

Updated: 01 November 2021; Ref: scu.566876

Soreefan and Others, Regina (on The Application of) v Secretary of State for The Home Department (Judicial Review – Costs – Court of Appeal (IJR): UTIAC 28 Oct 2015

UTIAC (i) An appeal lies to the Court of Appeal against a costs order of the Upper Tribunal made in immigration judicial review proceedings.
(ii) In determining cost issues the Upper Tribunal will apply M v London Borough of Croydon [2012] EWCA Civ 595.
(iii) Provided that a costs decision of the Upper Tribunal is in harmony with established principles and has a tenable basis, permission to appeal to the Court of Appeal is unlikely to be granted because cost decisions involve a substantial measure of discretion dependent upon one particular factual matrix.
(iv) In judicial review proceedings where permission to appeal is not determined at a hearing, the time limit for applying to the Upper Tribunal for permission to appeal to the Court of Appeal is one calendar month, beginning on the date immediately following the day upon which the Tribunal’s substantive decision was sent and ending on the corresponding date in the immediately succeeding month.
(v) This time limit is capable of being extended in accordance with established principles and giving effect to the overriding objective.
(vi) Every Permission to Appeal (PTA) application must be made in writing. There is no prescribed form.
(vii) In judicial review cases, the prescribed fee for an application for permission to appeal to the Court of Appeal is presently andpound;45.00. Such applications do not require notice to the other parties.
(viii) The substantive requirements for every permission to appeal application are enshrined in rule 44(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 and are of cardinal importance.
(ix) A failure to comply with rule 44(7) engages the Upper Tribunal’s discretionary strike out powers under rule 8. The Tribunal will assess in particular the nature and gravity of the non-compliance and will give effect to the principles in R (SN) v SSHD (striking out – principles) IJR [2015] UKUT 227 (IAC).

[2015] UKUT 594 (IAC)
Bailii
England and Wales

Immigration, Costs

Updated: 01 November 2021; Ref: scu.565368

Smith v Buller: 1875

The plaintiff in a patent case had failed, and now objected to the amount of costs claimed by the defendant.
Held: Sir R Malins V-C said: ‘It is of great importance to litigants who are unsuccessful that they should not be oppressed by having to pay an excessive amount of costs.’ and ‘I think he ought to bear no more than the necessary costs. I adhere to the rule which has ready been laid down, that the costs chargeable under a taxation as between a party and party are all that are necessary to enable the adverse party to conduct the litigation, and no more. Any charges merely for conducting litigation more conveniently may be called luxuries and must be paid by the party incurring them. The plaintiff is the attacking party, and has failed, and he must therefore pay all charges necessary to the litigation. But if the Defendants give greater facilities for the conduct of the case than are strictly necessary, they ought not to be allowed to throw them upon the plaintiff.’

Sir R Malins V-C
[1874-80] All ER 425, 27 WR 803, (1875) LR 19 EQ 473
England and Wales
Cited by:
Cited – Garbutt and Another v Edwards and Another CA 27-Oct-2005
The client challenged his opponent’s solicitors bill of costs, saying that the other side had not been given an estimate of costs. The solicitor acted on several matters for the client and had not given a formal estmate.
Held: The absence of . .
Cited – KPMG Peat Marwick McLintock v The HLT Group QBD 18-Mar-1994
The plaintiffs claimed for professional fees, and the defendants counter-claimed alleging negligence. The plaintiffs obtained summary judgment under Order 14 with an order for costs on the standard basis, to be taxed if not agreed. The plaintiffs . .
Cited – Royal Devon and Exeter NHS Foundation Trust v Acres QBD 22-Mar-2013
The defendant challenged the use by the claimant of solicitors from Central London in her claim for personal injury. She was a radiographer, and her work involved exposure to dangerous materials, though in this case it arose from use of machinery . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, Costs

Leading Case

Updated: 01 November 2021; Ref: scu.471973

Yerrakalva v Barnsley Metropolitan Borough Council and Another: EAT 8 Dec 2010

EAT PRACTICE AND PROCEDURE – Costs
Discrimination claim withdrawn – Judge awards Rs 100% of their costs, not on the basis that the claim had been misconceived or unreasonably pursued from the start but because he held that C had lied in two specific respects in the course of the introductory processes prior to the withdrawal
Held, allowing the appeal, that in the absence of any reasons to suppose that the lies in question either caused any loss or demonstrated that the claim was misconceived no award was justified – McPherson v BNP Paribas discussed.

Underhill P J
[2010] UKEAT 0231 – 10 – 0812, [2012] IRLR 78
Bailii
England and Wales
Citing:
Cited – McPherson v BNP Paribas SA (London Branch) CA 14-May-2004
The claimant withdrew his claim in the Employment Tribunal. By then, his employer had incurred very substantial legal costs. He appealed against the order for costs against him.
Held: The tribunal had wrongly asked whether the withdrawal of . .
Cited – Lodwick v London Borough of Southwark CA 18-Mar-2004
The claimant alleged bias on the part of the employment appeal tribunal chairman hearing his appeal. The chairman refused to stand down, saying that he was only one of three tribunal members with an equal vote. The chairman had four year’s . .
Cited – Nicolson Highlandwear Ltd v Nicolson EAT 23-Jun-2010
EAT PRACTICE AND PROCEDURE – Costs
Employment Tribunal refused to award expenses to Respondent notwithstanding having found that the Claimant’s dismissal was on account of what the Tribunal found could be . .
Cited – Dunedin Canmore Housing Association Ltd v Donaldson EAT 8-Jul-2009
EAT PRACTICE AND PROCEDURE: Costs
Tribunal refused to award expenses where it dismissed claimant’s contractual claim. Claim was based on the claimant’s assertion that she had not breached the . .
Cited – Daleside Nursing Home Ltd v Mathew EAT 18-Feb-2009
EAT PRACTICE AND PROCEDURE: Costs
Where at the heart of a claim is an explicit lie alleging racial abuse, the Employment Tribunal was in error failing to find that the Claimant acted unreasonably in . .

Cited by:
Cited – AQ Ltd v Holden EAT 16-Apr-2012
EAT PRACTICE AND PROCEDURE – Costs
Challenge on various grounds to the Tribunal’s decision to refuse the successful employer’s application for costs at the end of a full hearing. Held – the Tribunal did not . .
Cited – Raggett v John Lewis Plc EAT 17-Aug-2012
raggett_lewisEAT2012
EAT PRACTICE AND PROCEDURE – Costs
In determining the amount of costs to be awarded having decided that the bringing of an unfair dismissal claim was misconceived and that a costs order should be made . .
Appeal from – Solihull Metropolitan Borough Council v Hickin SC 25-Jul-2012
The claimant’s parents were secure joint tenants. After her father left, the mother later died. The respondent served a notice on the father terminating the tenancy since as the survivor and not resident, he was not entitled to continue the tenancy. . .
Cited – Vaughan v London Borough of Lewisham and Others (Practice and Procedure : Costs) EAT 6-Jun-2013
EAT Practice and Procedure : Costs – Tribunal orders that Appellant should pay Respondents one-third of their costs (estimated prior to assessment at andpound;260,000) on the basis that the claim was misconceived . .

Lists of cited by and citing cases may be incomplete.

Employment, Costs

Updated: 01 November 2021; Ref: scu.427311

Americhem Europe Ltd v Rakem Ltd: TCC 13 Jun 2014

americhem_rakemTCC0614

Complaint was made that a costs estimate had been signed not by a solicitor, but by a costs draftsman.
Held: The rules required the estimate to have been signed by a ‘senior legal representative’. A costs draftsman whose involvement in the matter was restricted to the preparation of the costs schedule was not such. He had had no involvement in the conduct and presentation of the case. The schedule was not correctly validated, but, applying the rule from Summit Navigation, the defect was technical and no question of relief from sanctions arose: ‘even in the more robust environment that now obtains, the consequences of refusing relief seem to me to be disproportionate, unjust and therefore contrary to the overriding objective. The proportionate and just response, given that no one has been significantly disadvantaged by the irregularity, is to require it to be remedied at the Defendant’s cost and to compensate the Third Party for the modest cost involved in bringing the matter to the attention of the Court, summarily assessed in the sum of andpound;50.’

Stuart-Smith J
[2014] EWHC 1881 (TCC), [2014] WLR(D) 270
Bailii, WLRD
Civil Procedure Rules 2.3.1
Citing:
Applied – Summit Navigation Ltd and Another v Generali Romania Asigurare Reasigurare Sa Ardaf Sa and Another ComC 21-Feb-2014
The commercial court will not encourage time wasting procedural applications. Leggatt J summarised the principles that should be applied on an application for relief from sanctions: ‘i) On an application for relief from a sanction under CPR 3.9, it . .
Cited – The Bank of Ireland and Another v Philip Pank Partnership TCC 12-Feb-2014
It is an irregularity for a costs budget to fail to set out the Statement of truth in full. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs, Legal Professions

Updated: 01 November 2021; Ref: scu.533819

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 Legal Services Commission having withdrawn legal aid. It was argued that the protection sought would remove from the appellant school the protection on costs provided for in the 1999 Act.
Held: (Majority) It was essential that there should be representation for both sides before the Court. The case would raise issues of considerable public importance, and it was in the public interest that both sides of the argument should be properly presented. The result of the Commission’s position would be that a legally aided person could not be promised protection against personal liability for costs even if successful at all stages and took no part in an appeal.
The LSC must re-instate the legal assistance and pay the costs of the hearing.
‘It should be understood, as a principle of general application, that if the Legal Services Commission decide to fund a litigant whether by way of claim or a defence who is successful in his cause, that decision must ordinarily be seen to carry with it something close to an assurance that the Commission will continue to support him in any subsequent appeal by the unsuccessful party whilst he remains financially eligible. This will particularly be so where (a) the withdrawal of support would expose the publicly funded litigant to a substantial risk for future costs, (b) he retains a significant interest, quite apart from his interest in resisting any future costs liability, in maintaining his success in the litigation and (c) the issues raised on the appeal are of general public importance which it is in the public interest to resolve and his case on these issues is unlikely to be properly argued unless he continues to be funded by the Legal Services Commission.’

Lord Hope of Craighead, Deputy President, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood
[2009] UKSC 1, Times 17-Oct-2009, [2010] 1 All ER 1, [2009] 1 WLR 2353, [2010] 2 AC 728
Bailii, SC
Access to Justice Act 1999 7, Community Legal Service (Cost Protection) Regulations 2000 (SI 2000/824) 5
England and Wales
Citing:
At First Instance – E v The Governing Body of JFS and Another Admn 3-Jul-2008
The court considered the impact of secular discrimination policy on admissions policies of religious schools.
Held: A school admissions policy which gave priority to children of their designated faith did not discriminate unlawfully either . .
At CA – E, Regina (On the Application of) v The Governing Body of JFS and Another CA 25-Jun-2009
E challenged the admissions policy of a school which admitted by preference children acknowledged to be Jewish by the Office of their Rabbi. His mother being Jewish by conversion in a progressive synagogue, E was excluded. The claimant suggested . .
Appeal from – E, Regina (On the Application of) v Governing Body Of JFS and Another CA 10-Jul-2009
. .
Cited – Boxall v Waltham Forest Borough Council 2001
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 . .
Cited – Weaver v London Quadrant Housing Trust CA 17-Feb-2009
The respondent sought leave to appeal against a finding that as a registered social landlord it was exercising a public function and was a hybrid public authority.
Held: Leave was granted. A protective costs order was made for the respondent . .
Cited – Corner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry CA 1-Mar-2005
The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the . .
Cited – E v The Governing Body of JFS and Another Admn 16-Jul-2008
Application for leave to appeal. . .

Cited by:
See also – E, Regina (on The Application of) v Governing Body of JFS and Another SC 16-Dec-2009
E complained that his exclusion from admission to the school had been racially discriminatory. The school applied an Orthodox Jewish religious test which did not count him as Jewish because of his family history.
Held: The school’s appeal . .

Lists of cited by and citing cases may be incomplete.

Legal Aid, Costs

Updated: 01 November 2021; Ref: scu.376164

Regina v Manchester Stipendiary Magistrate, ex parte Hill; Hill v Anderton: HL 1982

The House was asked whether section 127 was satisfied where the information was laid within 6 months from the date of the alleged offence but was not considered by a magistrate, and no summons was issued, until after the expiration of the time limit. The House also considered the power of delegation where a justice of the peace or the clerk did not personally receive or consider the information in question.
Held: It was satisfied.
Lord Roskill said: ‘My Lords, perusal of these and other sections which I have not thought it necessary to set out, make two matters abundantly clear. First, in the criminal jurisdiction, what magistrates’ courts have jurisdiction to try summarily is an information, and what is required to give them that jurisdiction is that an information has been laid before them . . Their jurisdiction in criminal cases does not depend on a summons or a warrant being issued and their civil jurisdiction does not depend upon a summons being issued. As to the former, as was pointed out in argument, where a defendant is brought before a magistrates’ court next morning, there is neither a summons nor a warrant. He is charged. The information is thus laid before the magistrates’ court at the latest when the charge is read in open court, and in practice, often earlier when, no doubt, the clerk to the justices, or his or her subordinate, is informed by the police of the charge which it is proposed to bring against the defendant later that morning . . My Lords, it is of crucial importance to appreciate that the laying of an information is a matter for the prosecution just as the making of a complaint is a matter for the complainant. In each case it is for the prosecutor or the complainant to decide how the information or how the complaint shall be formulated. I agree with the Divisional Court in the present cases that the commencement of criminal proceedings lies in the hands of the prosecutor. It is, in my opinion, the prosecutor’s duty, if he wishes to prosecute, to prepare and lay the information before the magistrates’ court, which means a justice of the peace or the clerk to the justices . . Accordingly, once the information has been received at the office of the clerk to the justices, which today in most cases is likely to be at the magistrates’ court house, the information will, in my view, have been laid. No more is required of the prosecutor to launch the intended criminal proceedings . . it is the laying of an information . . which is the foundation of the magistrates’ court’s jurisdiction to try an information summarily . . and not the issue of any summons which may or may not follow the laying of an information or the making of a complaint.’

Lord Roskill
[1983] 1 AC 328, [1982] 3 WLR 331, (1982) 146 JP 348, [1982] 2 All ER 963, [1982] Crim LR 755, (1982) 75 Cr App R 346, [1982] 2 All ER 963
Magistrates Courts Act 1980 127
England and Wales
Citing:
Approved – Regina v Hughes 1879
Baron Huddleston said that: ‘objections and defects in the form of procuring the appearance of a party charged will be cured by appearance.’
Hawkins J said: ‘The information, which is in the nature of an indictment, of necessity precedes the . .

Lists of cited by and citing cases may be incomplete.

Costs, Magistrates, Criminal Practice

Leading Case

Updated: 01 November 2021; Ref: scu.197894