Category: Costs

Wheeler v Revenue and Customs (Procedure – Application for Costs v Person Who Is An Individual): FTTTx 29 May 2019

PROCEDURE – application for costs against person who is an individual – whether that person acted unreasonably – yes – whether costs incurred as a result of that person acting unreasonably – yes – whether evidence that the individual had the means to meet an award of costs – no – costs awarded but order not to be enforced without permission of Tribunal

Citations:

[2019] UKFTT 336 (TC)

Links:

Bailii

Jurisdiction:

England and Wales

Costs

Updated: 26 October 2022; Ref: scu.638519

Brown and Another v Bennett and Others (No 2): ChD 16 Nov 2001

The power to make a wasted costs order did not apply only against advocates in court, and not only against the applicant’s own representatives. The test was as to the causing of additional costs. In this case several barristers had been involved at different stages. The defendants asserted that they should have appreciated that there was no prospect of success in an allegation of fraud. A decision to plead fraud, within the terms of the barristers’ code of conduct, was a matter of professional judgement. An order should be made only if the view reached by counsel that he could plead dishonesty was unreasonable or reckless. In this case also the claimants insisted on retaining their legal privilege, and accordingly the barristers were unable properly to defend their decisions.

Judges:

Justice Neuberger

Citations:

Times 21-Nov-2001, Gazette 10-Jan-2002

Statutes:

Supreme Court Act 1981 51

Jurisdiction:

England and Wales

Citing:

Cited – Allied Maples Group Ltd v Simmons and Simmons CA 12-May-1995
Lost chance claim – not mere speculative claim
Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was . .
Cited – Three Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .

Cited by:

Distinguished – Byrne v Sefton Health Authority CA 22-Nov-2001
There was no power to make an order for wasted costs against a solicitor who had not been acting in a matter when proceedings were issued. Delays eventually led to the dismissal of a medical negligence case for limitation. The defendant authority . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs, Litigation Practice

Updated: 25 October 2022; Ref: scu.166845

BAV-TMW-Globaler-Immobilienspezialfonds v Revenue and Customs (Procedure : Costs – Application By Appellant On Ground That Appeal Allowed): FTTTx 9 Apr 2019

COSTS – application by Appellant on ground that appeal allowed – application by Respondents for costs on issue basis because successful ground only introduced in skeleton argument – Appellant’s application granted – Respondents’ application refused

Citations:

[2019] UKFTT 233 (TC)

Links:

Bailii

Jurisdiction:

England and Wales

Costs

Updated: 25 October 2022; Ref: scu.637835

Crown Prosecution Service v The Eastenders Group and Another: CACD 23 Nov 2012

‘application by the CPS for permission to appeal against . . orders made . . in the Central Criminal Court on 8 May 2012. I use the expression ‘in form’ because as will appear there are issues as to the jurisdiction of the court. The case raises important questions as to the right of a receiver, appointed by the Crown Court under s.48(2) of the Proceeds of Crime Act 2002 (‘POCA’) following the making of a restraint order under s.41(1), to recover his costs and expenses in circumstances where this court later quashes his appointment, concluding that there had been insufficient grounds upon which to treat the assets in respect of which he had been appointed as ‘realisable property’ within the meaning of POCA s.83. ‘

Judges:

Laws, Mitting, Edwards-Stuart JJ

Citations:

[2012] EWCA Crim 2436, [2013] 1 WLR 1494, [2013] Lloyd’s Rep FC 235, [2013] 2 All ER 437, [2012] WLR(D) 346, [2013] 1 Cr App R 24, [2013] Lloyd’s Rep FC 235

Links:

Bailii, WLRD

Statutes:

Proceeds of Crime Act 2002 48(2) 83

Jurisdiction:

England and Wales

Citing:

See Also – Eastenders Cash and Carry Plc and Another v Revenue and Customs Admn 4-Nov-2010
Applications for judicial review in relation to alcoholic goods detained by the Defendants on grounds of a suspicion that duty may not have been paid in respect of them.
Sales J said: ‘In my view, there is a clear reason why Parliament wished . .
See Also – Eastenders Cash and Carry Plc v Revenue and Customs FTTTx 29-Dec-2010
FTTTx Excise Duty – warehouse – application for registration as an owner of goods under Warehousekeepers and Owners of Goods Regulations 1999 (‘WOWGR’) – whether decision of HMRC could reasonably have been . .
See Also – Eastenders Cash and Carry Plc v South Western Magistrates’ Court Admn 22-Mar-2011
The claimant sought judicial review of decisions by the magistrates first to issue search warrants, and then to refuse to disclose the information on which it had been based.
Held: The documentation now having been disclosed the second part of . .
See Also – Eastenders Cash and Carry Plc and Others v HM Revenue and Customs CA 20-Jan-2012
The Court considered the lawfulness of the exercise of the power claimed by the Commissioners of Her Majesty’s Customs and Excise (HMRC) to detain goods temporarily for the purpose of investigating their status. . .
Appeal from – Barnes v Eastenders Cash and Carry Plc and Others CCC 4-Apr-2012
The respondent had had a receivership order made after ex parte restraint orders were made. The orders were set aside as unlawful, but the receiver now sought his very substantial costs from the respondent’s assets. . .

Cited by:

Cited – Eastenders Cash And Carry Plc And Others v The United Kingdom ECHR 27-Nov-2013
Statement of Facts – The company’s goods had been detained by Customs and Excise. A court later ordered their return, but found the detention to have been with reasonable cause. The Revenue had successfully argued that costs could not be awarded . .
See Also – Barnes (As Former Court Appointed Receiver) v The Eastenders Group and Another SC 8-May-2014
Costs of Wrongly Appointed Receiver
‘The contest in this case is about who should bear the costs and expenses of a receiver appointed under an order which ought not to have been made. The appellant, who is a former partner in a well known firm of accountants, was appointed to act as . .
See Also – Eastenders Cash and Carry Plc and Others, Regina (on The Application of) v Revenue and Customs SC 11-Jun-2014
Alcoholic drinks had been seized by the respondents pending further enquiries with a view to a possible forfeiture, then held and returned but only under court order. The company had complained that the detention of the goods was unlawful. The . .
Lists of cited by and citing cases may be incomplete.

Customs and Excise, Costs

Updated: 24 October 2022; Ref: scu.466267

Simpson v MGN Ltd and Another: QBD 27 Jan 2015

The court had struck out the defendant’s plea of justification. The parties now disputed the costs to be paid for that element of the action, the defendant arguing that the claimant had failed to comply with the requirements to comply with costs budgets.
Held: The court now gave its reasons for allowing the costs in part.
Warby J said: ‘i) A defendant does not have to prove the truth of every aspect of the words complained of. It is sufficient for the defence to prove the substantial truth of the defamatory sting of the words.
ii) The defence must however meet the whole defamatory sting. If the words contain a defamatory imputation of substance which is not covered by the plea of justification the defence cannot succeed.
iii) At the present stage, the question for the court is whether a trial judge could conclude that the pleaded case of justification, if established, proves the substantial truth of the words complained of.’

Judges:

Warby J

Citations:

[2015] EWHC 126 (QB), [2015] 1 Costs LR 139

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Stocker v Stocker QBD 10-Jun-2015
The claimant alleged defamation by his former wife in a post on facebook. The posting and associatedeEmails were said falsely to have accused him of serious abuse, and that the accusations had undermined his relationship with his new partner.
Lists of cited by and citing cases may be incomplete.

Defamation, Costs

Updated: 24 October 2022; Ref: scu.541926

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 beating the payment in the claimant was only given costs limited to pre-action costs and no costs thereafter.
Held: The claimant’s appeal was allowed and he was awarded 60% of his costs. Waller LJ did not gain much assistance from the authorities cited to him, save in so far as they laid down clear principles and urged that it was to the rules that one should go.

Judges:

Waller LJ

Citations:

[2007] EWCA Civ 368

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

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

Costs

Updated: 23 October 2022; Ref: scu.251454

Bell Electric Ltd v Aweco Appliance Systems Gmbh and Co Kg (1501): CA 31 Oct 2002

The respondent sought to appeal. The claimant requested the court to order that as a pre-condition of being allowed to appeal, the respondent should pay into court, or give adequate security for, the costs awarded at first instance, even though there was no evidence that a vigorously followed enforcement would not succeed if the appeal failed.
Held: There was no reason in principle to say the court had no jurisdiction to make such an order in appropriate circumstances, such as the respondent being already in breach, the refusal of a stay, or that the failure to pay was based upon a cynical taking advantage of court rules.

Judges:

Potter, Carnwath LJJ

Citations:

Times 20-Nov-2002, [2002] EWCA Civ 1501, [2003] 1 All ER 344

Links:

Bailii

Statutes:

Civil Procedure Rules 52.9

Jurisdiction:

England and Wales

Citing:

See Also – Bell Electric Ltd v Aweco Appliance Systems Gmbh and Co Kg (1589) CA 31-Oct-2002
. .
Lists of cited by and citing cases may be incomplete.

Costs, Civil Procedure Rules

Updated: 23 October 2022; Ref: scu.178085

Butler v Bankside Commercial Ltd: CA 27 Feb 2020

The Court considered the interpretation of a provision in a standard form of conditional fee agreement (a ‘CFA’) made on Law Society terms. The term in question entitles the solicitors, on termination of their retainer in certain circumstances, to payment both of their basic charges and disbursements and also their success fee if the client goes on to win her claim. What is in dispute is what triggers that entitlement. The relevant provision of the CFA expresses the trigger event as follows: ‘We can end this agreement if you reject our opinion about making a settlement with your opponent.’

Judges:

Lord Justice Lewison

Citations:

[2020] EWCA Civ 203

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Costs

Updated: 23 October 2022; Ref: scu.648516

Simms v Law Society: Admn 17 May 2005

Judges:

Lord Justice Latham

Citations:

[2005] EWHC (Admin) 938

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Simms v Law Society Admn 17-Mar-2005
The appellant challenged being struck of the solicitors roll.
Held: ‘The most serious finding of the Tribunal was, of course, that [Mr Simms] was dishonest. We agree with the Tribunal that the pattern of behaviour by [Mr Simms] establishes . .

Cited by:

Appeal from – 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 . .
Lists of cited by and citing cases may be incomplete.

Costs

Updated: 22 October 2022; Ref: scu.224939

PHI Group Ltd v Robert West Consulting Ltd: CA 10 May 2012

The court considered the application of rule 36, and the general rules as to costs, in relation to contribution proceedings between two parties both liable to a claimant for the same damage.

Judges:

Rix, Lloyd, Stanley Burnton LJJ

Citations:

[2012] EWCA Civ 588

Links:

Bailii

Statutes:

Civil Procedure Rules 36

Jurisdiction:

England and Wales

Civil Procedure Rules, Costs

Updated: 21 October 2022; Ref: scu.457605

William Ford and Threeway Pressings Ltd (Patent): IPO 27 Feb 2009

IPO This was a decision on costs following withdrawal of an entitlement reference under Section 8 after evidence was filed by both sides but before the hearing. The claimant argued that he should not have to pay costs because he still believed he was entitled to the patent application but following legal advice believed the patent invalid and therefore that the reference was not worth pursuing. The hearing officer considered that as the defendant had still been put to expense, which could have been avoided even on the claimant’s argument if the claimant had sought legal advice earlier, an award was justified. He awarded pounds 1000 in favour of the defendants following the standard scale.

Citations:

[2009] UKIntelP o06009

Links:

Bailii

Jurisdiction:

England and Wales

Intellectual Property, Costs

Updated: 21 October 2022; Ref: scu.457290

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 contentious work, and said that he tried to make the andpound;50,000 charge ‘look more appetising’ to Mr Bilkus by treating it as an uplift on all of the bills since April 2001. I do not find this explanation entirely easy to reconcile with what Mr Stockler said in his witness statement, but whatever Mr Stockler may or may not have subjectively intended, there can be no doubt that the bill would have been read by any reasonable recipient as intended to charge the uplift on the whole series of bills since April 2001. A mistake of that character in my judgment evinces a serious disregard of the Firm’s contract with its client and the relevant provisions of the Solicitors Act 1974. It is not the kind of mistake from which any firm of solicitors should expect to be relieved, let alone a firm based in the City of London and holding itself out as capable of dealing with complex High Court litigation.
I emphasise that this is not just a matter of discipline for its own sake. It is essential that the terms upon which a solicitor charges his client should be recorded in writing, and that a solicitor should not attempt to charge fees which are contrary to the terms of his retainer. It is also essential that, in all save exceptional circumstances, the client should be able to rely on the accuracy, both factual and legal, of bills which he receives from his solicitor. The particular mischief in the present case is that the Firm sought to charge an unjustified success fee of andpound;50,000, in circumstances where it was clear that the client had not agreed to this. Many clients might have been willing to pay a success fee of andpound;50,000 following a valuation which had been so successful, whether or not they were legally obliged to do so. However, Mr Bilkus was fully entitled to stand on his legal rights, and to insist that the Firm should be paid the fees which had been agreed, and no more. He may well have reflected that the Firm would have been unlikely to agree a reduction in its fees if the valuation exercise had gone against him. In any event, the important point, as it seems to me, is that the Firm deliberately sought to charge a substantial fee by way of uplift which had no possible justification. In those circumstances, the Master was in my judgment quite right to refuse the Firm permission to amend the invoice.’

Judges:

Henderson J

Citations:

[2009] EWHC 1957 (Ch), [2009] 4 Costs LR 652

Links:

Bailii

Statutes:

Solicitors Act 1974 70

Jurisdiction:

England and Wales

Citing:

Appeal from – 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 . .

Cited by:

Appeal from – 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 . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 21 October 2022; Ref: scu.368635

Hurst v Leeming: SCCO 9 May 2003

Citations:

[2003] EWHC 9026 (Costs)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Robert Alfred Hurst v Ian Leeming ChD 14-Mar-2003
. .
See Also – 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 . .
See Also – Hurst v Leeming CA 23-Jul-2002
. .
Lists of cited by and citing cases may be incomplete.

Costs

Updated: 21 October 2022; Ref: scu.235563

Ling, Carlton v Coopers and Lybrand, Charity Commissioners, HM Attorney-General: CA 24 Apr 1997

The applicant had appeared as a Mackenzie friend for the two applicants, in the latest of a long running series of actions challenging the management of a charitable foundation. The court warned him that, whilst they were prepared to hear him, he might run the risk of an order for costs against him personally if the application was felt to be frivolous. He applied for leave and appealed just that order when it was later made. The court granted leave. Whilst the court might not feel particular sympathy for the appellant, he had raised an issue which required clarification as to the power of the court to order costs against someone acting as a Mackenzie friend.

Citations:

[1997] EWCA Civ 1504

Jurisdiction:

England and Wales

Costs, Litigation Practice

Updated: 21 October 2022; Ref: scu.141900

Marshall Glover Ltd v Revenue and Customs: FTTTx 24 Apr 2019

COSTS – application for costs for unreasonable behaviour against appellant and ‘wasted’ costs against representative – whether Tribunal should infer reasons for withdrawal of appeal – whether unreasonable not to have withdrawn appeal earlier – yes; costs against appellant; – whether unreasonable for representative not to directly notify HMRC of withdrawal – yes but not proved to have caused costs to be wasted; no costs against representative

Citations:

[2019] UKFTT 271 (TC)

Links:

Bailii

Jurisdiction:

England and Wales

Costs

Updated: 21 October 2022; Ref: scu.637851

Hollins v Russell: CA 25 Jun 2003

The court considered whether a successful party should be refused his costs to the extent of the costs associated with a particular argument they had lost.
Held: In a weighty matter the court should not disallow the costs of arguments which failed unless points were unreasonably taken.

Judges:

Brooke, Hale, Arden LJJ

Citations:

[2003] EWCA Civ 974, [2003] 1 WLR 2487, [2003] 3 Costs LR 423, [2003] 4 All ER 590

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Hazlett v Sefton Metropolitan Borough Council QBD 2-Dec-1999
The need for a party claiming his costs to give evidence to prove his entitlement to costs rather than relying on the presumption in his favour, will not arise if the defendant simply puts the complainant to proof of his entitlement to costs. The . .

Cited by:

Cited – Tankard v John Fredricks Plastics Ltd; Jones v Attrill etc CA 11-Dec-2008
The defendants sought to argue that the conditional fee arrangement used by the claimant’s solicitors had been void under the 2000 regulations. They claimed that the solicitors had failed to disclose an interest in the policies sold.
Held: No . .
Lists of cited by and citing cases may be incomplete.

Costs

Updated: 20 October 2022; Ref: scu.249056

M v London Borough of Croydon: CA 8 May 2012

The court considered the proper approach to the award of costs in judicial review proceedings.
Held: The position should be no different for litigation in the Administrative Court from what it is in general civil litigation.

Judges:

Neuberger MR, Hallett VP, Stanley Burnton LJJ

Citations:

[2012] EWCA Civ 595

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

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

Judicial Review, Costs

Updated: 19 October 2022; Ref: scu.456512

Raymond Saul and Co (A Firm) v Holden and Another: ChD 16 Dec 2008

Judges:

Richard Snowden QC

Citations:

[2008] EWHC 8565 (Ch), [2009] WTLR 233, [2009] BPIR 50

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Principal judgment – Raymond Saul and Co (A Firm) v Holden and Another; In re Hemming (deceased) ChD 12-Nov-2008
The claimant was sole residuary legatee of his mother’s estate. He became bankrupt, but was released by automatic discharge from the bankruptcy before the administration of the estate was completed. He challenged the solicitors who wished to pay the . .
Lists of cited by and citing cases may be incomplete.

Costs

Updated: 19 October 2022; Ref: scu.374398

Clark v Tull (T/A Ardington Electrical Services): CA 1 May 2002

Citations:

[2002] EWCA Civ 510, [2002] 3 WLR 762, [2003] QB 36

Links:

Bailii

Statutes:

Consumer Credit Exempt Agreements Order 1989

Jurisdiction:

England and Wales

Citing:

Cited – Derbyshire v Warren 1963
The plaintiff cannot recover from the defendant by way of damages any sum greater than what is reasonably necessary for the purpose of making good his loss. . .
See Also – Clark v Ardington Electrical Services CA 4-Apr-2001
(Orse Burdis v Livsey) . .
Appeal from – Clark v Ardington Electrical Services; Dennard v Plant; Sen v Steelform Engineering Company Ltd; Lagden v O’Connor CC 3-Aug-2001
The several claimants had hired motor vehicles following accidents, being re-assured that the costs would be recovered from defendant insurers. The agreements would not comply with the requirements of the Consumer Credit Act. They each envisaged . .

Cited by:

Cited – Armchair Passenger Transport Ltd v Helical Bar Plc and Another QBD 28-Feb-2003
Objection was made to the use of an expert witness who had formerly been a senior employee of the defendant.
Held: The court set out criteria for testing the independence of a proposed expert witness: ‘i) It is always desirable that an expert . .
Lists of cited by and citing cases may be incomplete.

Costs

Updated: 17 October 2022; Ref: scu.171235

Hurndell v Hozier and Others: ChD 18 Feb 2011

Judges:

Morgan J

Citations:

[2011] EWHC 321 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Hurndell v Hozier and Another ChD 19-Mar-2008
. .
See Also – Hurndell v Hozier and Another CA 12-Feb-2009
A company sought a public listing, but too many shares were held in private hands. Shares were to be transferred by the claimant, but he now denied having signed any transfer. He now appealed against rejection of his claim saying that the judge had . .
Principal Judgment – Hurndell v Hurndell and Others ChD 17-Dec-2010
. .
Lists of cited by and citing cases may be incomplete.

Costs, Litigation Practice

Updated: 15 October 2022; Ref: scu.429655

Kuzjeva and Another, Regina (on the Application Of) v London Borough of Southwark: CA 21 Nov 2001

Application for permission to appeal which, on the face of it, is concerned solely with the incidence of costs. It does, however, raise quite clearly an important point of principle.
A family of asylum seekers who had a legal entitlement to some form of accommodation under the 1999 Act, albeit they had made a false start under the Housing Act, had to proceed by a succession of judicial review applications against the responsibility local authority, the London Borough of Southwark. If there was an issue about the legal responsibility of Southwark, it has either been conceded or gone against them because the case rapidly turned simply into a question, not of whether Southwark was responsible but of whether and when and how it was going to fulfil its responsibility.

Citations:

[2001] EWCA Civ 1829

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, Costs

Updated: 14 October 2022; Ref: scu.218534

Nigel Melling v William Butler David Birkett (Patent): IPO 28 Mar 2006

The Claimant withdrew his reference under Sections 13 and 37 and the Defendant asked for an award of costs on an ‘exemplary basis’. A decision on this issues was made on the papers and the Hearing Officer awarded the Defendants the sum of andpound;500 to be paid by the Claimant.

Judges:

Mr P Back

Citations:

[2006] UKIntelP o08806, GB 2383533 and WO/0215981

Links:

Bailii

Statutes:

Patents Act 1977 13(1)(3) 37

Jurisdiction:

England and Wales

Intellectual Property, Costs

Updated: 14 October 2022; Ref: scu.454659

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: The defendant’s appeal was dismissed. ‘Section III of Part 45 contains a carefully balanced scheme for the award of success fees in road traffic accident cases. The object of the scheme is to provide certainty and avoid litigation over the amount of success fees to be allowed to successful parties. The only circumstances in which the court may allow a success fee different from that prescribed by rule 45.16 in relation to solicitors’ fees are those described in rule 45.18.’

Judges:

May LJ, Dyson LJ, Smith LJ

Citations:

[2007] EWCA Civ 429, Times 07-Jun-2007, [2007] 1 WLR 2814, [2007] 4 Costs LR 574, [2008] RTR 4, [2007] CP Rep 33, [2007] 3 All ER 173, [2007] PIQR Q8

Links:

Bailii

Statutes:

Civil Procedure Rules 45.16(a)

Jurisdiction:

England and Wales

Citing:

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 . .
Approved – 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 by:

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

Costs, Legal Professions

Updated: 13 October 2022; Ref: scu.251772

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.
Held: The rejection was correct. Dyson LJ said: ‘There is a real distinction between (a) carrying out an assessment and deciding as part of the assessment to reduce the bill by a percentage and (b) deciding in advance of the assessment that the receiving party will only receive a percentage of the assessed costs. The figure that results from (b) represents less than 100% of the assessed costs . . In deciding in advance of the assessment that the receiving party will only receive a percentage of the assessed costs, the costs judge is not giving effect to an order that the party is entitled to his costs, to be assessed if not agreed.
Rule 44.3 gives a judge a jurisdiction to make a type (b) order. There is no doubt that at the end of a hearing, a judge may make an order of the kind sought from the district judge in the present case. In such a case, the judge is not purporting to vary an order if he disallows the successful party a proportion of his costs. He is making the order. He does not have the advantage accorded to the costs judge of having a detailed bill of costs. He cannot, therefore, carry out a detailed assessment. But he usually has the benefit, denied to the costs judge, of knowing a good deal about the case, and is often in a good position to form a view about the reasonableness of the parties’ conduct. When carrying out a detailed assessment, the costs judge is not making an order for costs. His position is quite different from that of a judge exercising the jurisdiction given by rule 44.3.
It is, in fact, quite unnecessary to give the costs judge the jurisdiction for which Miss Ayling contends. The premise on which her argument is based is that, without such a power, the costs judge cannot arrive at a fair result in certain situations. Mr Roussak concedes (rightly) that in an appropriate case, the costs judge can disallow entire sections of a bill of costs. If the costs judge considers that the claimant acted unreasonably in refusing an offer to settle made before proceedings were issued, he is entitled to disallow all the costs post-issue on the footing that they were costs ‘unreasonably incurred’: rule 44.4(1). Similarly, where he decides that a party was unreasonable to raise and pursue an issue, the costs judge is entitled to disallow the costs relating to that issue on the grounds that they were unreasonably incurred.’

Judges:

Dyson LJ

Citations:

[2007] EWCA Civ 91, [2007] 3 Costs LR 462, [2007] CP Rep 21, [2007] 1 WLR 998, [2007] PIQR P20

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Business Environment Bow Lane Ltd v Deanwater Estates Ltd ChD 31-Jul-2009
The court was asked ‘Where a claimant has picked up one or more costs orders in its favour on the way to a trial, but fails very badly at the trial (for example due to exaggeration), can the costs judge assess those costs at nil on the footing that . .
Cited – 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, . .
Lists of cited by and citing cases may be incomplete.

Costs

Updated: 13 October 2022; Ref: scu.248806

Doyle v North West London Hospitals NHS Trust: EAT 4 Apr 2012

EAT PRACTICE AND PROCEDURE – Costs
An appeal against a costs order under rule 41(1)(c) ETR that the Claimant pay the whole costs of the proceedings to be assessed.
Subject to ‘ability to pay’ point, no error of law in Tribunal’s decision to order the whole of the costs based on Claimant’s conduct and effects thereof.
On ‘ability to pay’, Tribunal erred in law in failing itself to raise the question of means before making such an order (which was going to amount to andpound;100K) against a Claimant even though she was legally represented.

Judges:

Shanks

Citations:

[2012] UKEAT 0271 – 11 – 0404

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Costs

Updated: 13 October 2022; Ref: scu.454090

Godfrey Morgan Solicitors Ltd v Marzan and Others: EAT 15 Feb 2012

EAT PRACTICE AND PROCEDURE
Costs
Appearance/response
The first appeal related to a claim by Miss Marzan that she had not been paid a month’s wages due in respect of her notice period. It was initially brought against ‘Godfrey Morgan Solicitors t/a GMS Law’. There was a solicitors’ firm, Godfrey Morgan Solicitors (of which Godfrey Morgan was a partner), and a company, Godfrey Morgan Limited t/a GMS Law (of which he was a director). The firm responded, to claim that the Employment Tribunal had no jurisdiction because the claim had not been brought against the company (the word ‘Limited’ was missing), and putting her to proof that she had ever been employed by it. This was supported by a witness statement from Godfrey Morgan which did not state that he knew that the Claimant had been an employee of the company for over a year (as he did), nor did it disclose that in the company’s possession was a copy of her contract of employment. In consequence, the day allocated to the hearing was entirely wasted save as to ordering that the company be joined as second Respondent and making consequential directions. The ET made a time preparation costs order on the basis that the conduct in defence of the proceedings was unreasonable. The appeal against this order was dismissed.
The second to fifth appeals rested on an order (headed ‘unless order’ but otherwise not indicating what consequence would follow from non-compliance) that Godfrey Morgan (who had not been present at the first hearing, saying he was abroad) should produce an airline ticket which verified this. Since (he said) he had lost or disposed of the ticket, he could not comply, and the response was first struck out (appeal 3), then continued unopposed such that Miss Marzan succeeded (appeal 4), and then further time preparation costs were ordered against the Appellant (appeal 5). Since there was no proper basis in reason, relevance or justice for ordering disclosure let alone copying of the ticket, and it was not the function of an ET to act in discipline of a solicitor, let alone the hopelessly unspecific wording of the unless order and the evidence the document was not in possession of Mr Morgan, these appeals (which all stood together) were allowed. The claim is remitted for hearing before a new Tribunal.

Judges:

Langstaff P J

Citations:

[2012] UKEAT 0465 – 11 – 1502

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Costs

Updated: 13 October 2022; Ref: scu.454077

Gorlov, Regina (on the Application of) v Institute of Chartered Accountants In England and Wales, Reviewer of Complaints: CA 9 Jul 2002

Citations:

[2002] EWCA Civ 1191

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Gorlov v Institute of Chartered Accountants 2001
The court considered the principles applicable when considering an award of costs against a professional body carrying out its disciplinary function. . .
Lists of cited by and citing cases may be incomplete.

Costs

Updated: 11 October 2022; Ref: scu.217406

Sheinberg v Abdon and Others: ChD 3 Dec 2019

Whether the court should exercise its power under CPR 38.6 to disapply the default rule that the claimant, having discontinued his claim against the second and third defendants, should pay the costs of the claim against them.

Judges:

Master Clark

Citations:

[2019] EWHC 3220 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Costs

Updated: 11 October 2022; Ref: scu.646212

In Re A Solicitors (Wasted Costs Order) (No 1 of 1994): CACD 27 Jun 1995

A witness answering and resisting a summons is a sufficient party for ‘wasted costs’ order purposes.

Citations:

Times 27-Jun-1995, Gazette 19-Jul-1995

Statutes:

Courts and Legal Services Act 1990 111, Costs in Criminal Cases (General) (Amendment) Regulations 1991 (1991 No 789)

Jurisdiction:

England and Wales

Legal Professions, Costs

Updated: 08 October 2022; Ref: scu.81682

Airways Pension Scheme Trustee Ltd v Fielder and Another: ChD 15 Jan 2019

Judges:

Arnold J

Citations:

[2019] EWHC 29 (Ch), [2019] WLR(D) 19

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Cited by:

See Also – Airways Pension Scheme Trustee Ltd v Fielder and Another (3027) ChD 11-Nov-2019
Application by the corporate trustee (the ‘Trustee’) of the Airways Pension Scheme (the ‘Scheme’) for approval of its decision to enter into a settlement agreement with the second defendant . .
See Also – Airways Pension Scheme Trustee Ltd v Fielder and Another (3032) ChD 11-Nov-2019
. .
Lists of cited by and citing cases may be incomplete.

Trusts, Costs

Updated: 07 October 2022; Ref: scu.632705

Spencer and Others v Fielder: ChD 15 Jul 2014

Beddoe proceedings by the present trustees of the Airways Pension Scheme for directions of the court in relation to their conduct of proceedings brought against them by British Airways plc.
Held: The Chancellor authorised the Trustee to defend the claim (down to and including the completion of disclosure and inspection) and ordered that the Trustee’s costs be paid out of the Scheme assets

Judges:

Sir Terence Etherton CH

Citations:

[2014] EWHC 2768 (Ch), [2015] 1 WLR 2786

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – In Re Beddoe, Downes v Cottam CA 1893
A trustee had unsuccessfully defended an action against the trust in detinue for the return of deeds. He now sought protection against a costs order. Costs having been awarded against a trustee in proceeding A, the trustee sought to be indemnified . .

Cited by:

See Also – Airways Pension Scheme Trustee Ltd v Fielder and Another (3032) ChD 11-Nov-2019
. .
Lists of cited by and citing cases may be incomplete.

Costs, Trusts

Updated: 07 October 2022; Ref: scu.550161

HMRC v Atlantic Electronics Ltd: UTTC 6 Feb 2012

UTTC COSTS – Transitional appeal – Appeal by HMRC against direction under Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009, Sch 3, para 7 for 1986 applying 2009 Rules to the proceedings – appeal dismissed
The policy that ‘in cases other than Complex cases . . the inability to recover costs is not seen as likely to lead to a denial of access to justice’ but that ‘in Complex cases, the choice of the taxpayer is to prevail’.

Judges:

Warren J

Citations:

[2012] BVC 1577, [2012] UKUT 45 (TCC), [2012] STC 931

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

At FTTTx – Atlantic Electronics Ltd v Revenue and Customs FTTTx 12-May-2011
CASE MANAGEMENT – Exclusion of evidence and admission of late evidence – Principles applicable – O’Brien v Chief Constable of South Wales Police [2005] 2 WLR 1038, HL applied – Need for balancing exercise . .

Cited by:

Cited – Eclipse Film Partners No 35 Llp v Revenue and Customs SC 11-May-2016
The issue raised on this appeal concerns the extent to which the jurisdiction of the First-tier Tribunal to make an order for costs is fettered by the provisions of the Rules regulating the procedure of the Tribunal.
Held: With one exception, . .
Lists of cited by and citing cases may be incomplete.

Taxes Management, Costs

Updated: 07 October 2022; Ref: scu.452889

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 application, now sought judicial review of the award of his costs.
Held: Lord Denning would have held that the justices had no jurisdiction to award costs, but Sir George Baker and Sir Stanley Rees disagreed.
Lord Denning MR said: ‘I must say that I am most surprised by the order of the justices. The police had done nothing wrong at all. They had taken possession of these currency notes – absolutely properly – because they were reasonably suspected by them to have been stolen. They retained them pending trial equally properly. They were absolutely right not to deliver them without a court order. If they had given them up to Mr. Prasad and the true owners had turned up afterwards, the police would have been liable in damages to the true owners. Only by a court order would they be protected. Viewed in the eyes of the civil law, the police were bailees of the goods. Their custody was like that of a sheriff – custodia legis. Faced with a claimant, the sheriff is entitled to inter-plead and to get his costs as a first charge so long as he acts properly, but he is never bound to pay any costs. So also when the police have goods in custodia legis, and act perfectly properly in regard to them, they should not be ordered to pay costs.’
Sir Stanley Rees said: ‘The proceedings before us do not include any issue or argument as to the propriety of the exercise of the discretion of the justices to make the order for costs which they did in favour of the complainant. Nevertheless, I share the considerable degree of unease in regard to the order for costs which is evident in the judgments delivered by Lord Denning M.R. in this court and in the judgments delivered in the Divisional Court by Donaldson L.J. and Kilner Brown J. [1981] 1 W.L.R. 112. If, as I am satisfied is the case, the justices are empowered to make an order for costs in proceedings by complaint and summons under the Police (Property) Act 1897 where there is a complainant and a defendant, their discretion must be exercised having regard to the exceptional and perhaps unique nature of the order sought and to the respective roles of the parties concerned. In a case in which the police have clearly indicated that they do not oppose the making of the order sought and are merely attending before the justices to confirm their attitude and to ensure that an appropriate order is made before the property is delivered to the complainant, it would indeed be difficult to justify any order for costs against the police. Even in a case in which the police do not consent to the order sought by the claimant or claimants but attend the hearing and the justices are satisfied that it was reasonable for them to do so in order to assist the court to assess the validity of the claim or claims made to the ownership of the property, it would be proper for no order for costs to be made against the police, even if the order for delivery of the property sought by a claimant were made. In short, in my judgment, the proper approach to an application for costs in such proceedings should most certainly not be on the basis that costs should simply follow the event, but rather that the discretion to award them should be sparingly exercised, having regard to the exceptional nature of the role of the police as custodians of the property in issue, who require an order of the court to protect them before the delivery up of the property to a claimant.’
Sir George Baker said: ‘I have had the advantage of reading the judgment about to be delivered by Sir Stanley Rees and wish to say that I entirely agree with him about the undesirability of justices making orders for costs in cases like the present.’

Judges:

Lord Denning MR, Sir George Baker and Sir Stanley Rees

Citations:

[1981] 1 QB 829

Statutes:

Police (Property) Act 1897 1(1)

Jurisdiction:

England and Wales

Cited by:

Cited – Perinpanathan, Regina (on The Application of) v City of Westminster Magistrates Court and Another CA 4-Feb-2010
The appellant’s daughter had been stopped entering the country with andpound;150,000 in cash. The police sought an order for its forfeiture, suspecting a link with terrorism. The magistrates found no evidence of such, and declined to make the order, . .
Lists of cited by and citing cases may be incomplete.

Police, Magistrates, Costs

Updated: 07 October 2022; Ref: scu.401965

Baird v Moule’s Patent Earth Closet Co Ltd: CA 3 Feb 1876

Where a patentee sues for infringement and then discontinues his claim against the alleged infringer and consents to the revocation of his patent, he may yet require the alleged infringer to pay a substantial proportion of his costs if he can show that this situation came about because the alleged infringer had amended his defence and counterclaim to plead a new piece of prior art.

Citations:

Unreported, 3 February 1876

Jurisdiction:

England and Wales

Cited by:

Cited – See v Scott-Paine 1933
The court granted an order allowing amendments applied for, but then to give the applicant a period of time in which to consider, in light of the amendments, whether it wished to maintain that the patent or design in suit was valid and continue with . .
Cited – Williamson v Moldline Limited and Others 1986
The purpose of a Scott-Paine order is to impose on a party attacking the validity of a patent the obligation to take reasonable steps to ensure that the full attack is put before the patentee at the earliest time. The imposition of that obligation . .
Cited – Fresenius Kabi Deutschland Gmbh and Others v Carefusion 303, Inc ChD 12-Oct-2011
The claimant sought an order debarring the defendant from relying on any evidence to support their case at the forthcoming trial for the revocation of a patent. . .
Cited – Fresenius Kabi Deutschland Gmbh and Others v Carefusion 303 Inc CA 8-Nov-2011
The parties had litigated the validity of a patent. . .
Cited – Edison Telephone Company v India Rubber Company 1881
. .
Cited – Ungar v Sugg 1892
Lord Esher MR discussed the costs of patent infringement litigation: ‘Well, then, the moment there is a patent case one can see it before the case is opened, or called in the list. How can we see it? We can see it by a pile of books as high as this . .
Cited – In re GEC Alsthom Limited’s Patent ChD 1996
Laddie J pointed out a number of injustices that could be produced by the making of an Earth Closet order, including: ‘i) Such an order was a disincentive to a defendant to plead his best case, particularly since prior art from all over the world . .
Cited – CIL International Ltd v Vitrashop Ltd ChD 2002
Pumfrey J held that an Earth Closet order was not incompatible with the CPR. His reason was that such an order was not incompatible with the overriding objective: ‘That being the existing state of the law prior to the Civil Procedure Rules it may be . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Costs

Updated: 07 October 2022; Ref: scu.448482

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 fresh correct bill. Jenkins LJ said: ‘I entirely agree with the judge when he said that one has to take a strict view to maintain the necessary safeguards, and nothing I say is to be regarded as suggesting to solicitors that they can be careless or unbusiness like in a matter such as this, and then as of course apply for and receive the assistance of the court. It is only in exceptional cases, cases of special circumstances, of genuine mistake of inadvertence, that assistance ought to be given.’

Judges:

Jenkins LJ

Citations:

[1956] 1 WLR 818

Statutes:

Solicitors Act 1843

Jurisdiction:

England and Wales

Cited by:

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

Legal Professions, Costs

Updated: 07 October 2022; Ref: scu.401611

Sutton, Regina (on The Application of) v Calderdale Council: Admn 21 Mar 2012

The claimant had instituted judicial review proceedings as to his care provided by the repsondent. He then withdrew the request, but now sought his costs, saying that he had achieved everything he sought in the settlement.
Held: No order for costs.

Judges:

Behrens HHJ

Citations:

[2012] EWHC 637 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Costs

Updated: 06 October 2022; Ref: scu.452387

Growcott v Glaze Auto Parts Ltd: EAT 6 Feb 2012

EAT PRACTICE AND PROCEDURE – Costs
The employee was, after investigation dismissed for misconduct. Her unfair dismissal claim failed, as did her appeal against the Employment Tribunal’s decision. The employers then sought and obtained an order that the employee should pay their costs from the date of an email sent to the employee by the employers’ solicitors warning her of the issues in the unfair dismissal proceedings, and of the Burchell principles and that if she persisted they would apply for costs. She went ahead despite the email.
The employee appealed against the costs order; her criticisms of the ET were largely criticisms of their original rejection of her unfair dismissal claim.
Held: that the ET were entitled to find that the employee had acted unreasonably in continuing her claim after the email.

Judges:

Burke QC J

Citations:

[2012] UKEAT 04193 – 11 – 0602

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Costs

Updated: 05 October 2022; Ref: scu.451887