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 complainant can rely on the presumption in his favour. The defendant must raise a genuine issue as to whether the complainant is liable for his solicitors’ costs before the complainant has to adduce evidence to show that his entitlement. The complainant is presumed to be personally liable for his solicitors’ costs and it should not normally be necessary for the complainant to have to adduce evidence to that effect.
Harrison J said: ‘there is normally a presumption that the complainant will be personally liable for his solicitors’ costs and it should not normally be necessary for the complainant to have to adduce evidence to that effect.’ and
‘Where, however, there is a genuine issue raised by the defendant as to whether the complainant has properly incurred costs in the proceedings, the position will be different. A defendant may, for instance, have grounds for believing that the complainant will not be liable to pay his solicitor’s costs, whether because he has entered into an unlawful and unenforceable conditional fee arrangement with his solicitor or for any other reason. In those circumstances, where the defendant has raised a genuine issue as to whether the complainant has properly incurred costs in the proceedings, the complainant will be at risk if he continues to rely on the presumption that he is liable for his solicitor’s costs. If he does not then adduce evidence to prove that he has properly incurred costs in the proceedings and the defendant can show by evidence or argument, that he has not, he would be most unlikely to succeed in recovering his costs.
The need for a complainant to give evidence to prove his entitlement to costs rather than relying on the presumption in his favour will not, however, arise if the defendant simply puts the complainant to proof of his entitlement to costs. The complainant would be justified in relying on the presumption in his favour. It would be necessary for the defendant to raise a genuine issue as to whether the complainant is liable for his solicitors’ costs before the complainant would be called upon to adduce evidence to show that he is entitled to his costs. It will be for the trial judge to decide whether or not the defendant has raised an issue which calls for proof by the complainant of his liability to costs. Prior notice of the issue to be raised by the defendant should be given to the complainant in sufficient time before the hearing to enable the complainant to deal with it properly at the hearing and to avoid the necessity of an adjournment at the defendant’s expense.’ and
‘the mere non-acceptance by a defendant that an agreement between the complainant and his solicitor is a proper private fee agreement would not of itself be sufficient to call for evidence from the complainant. The defendant must show that there is a genuine reason for believing that it is not a proper private fee agreement before the complainant should need to consider adducing evidence to support the presumption in his favour.’
References:  4 All ER 887,  1 Costs LR 89
Judges: Lord Bingham of Cornhill CJ and Harrison J
Jurisdiction: England and Wales
This case is cited by:
- Cited – Hollins v Russell etc CA 22-May-2003 (,  EWCA Civ 718, Times 10-Jun-03, Gazette 17-Jul-03,  1 WLR 2487)
Six appeals concerned a number of aspects of the new Conditional Fee Agreement.
Held: It should be normal for a CFA, redacted as necessary, to be disclosed for costs proceedings where a success fee is claimed. If a party seeks to rely on the . .
- Cited – Kenneth L Kellar Carib West Limited v Stanley A Williams PC 24-Jun-2004 (,  UKPC 30, , ,  4 Costs LR 559, (2004) 148 SJLB 821)
(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 . .
- Cited – Pepin v Watts and Another CA 26-Jun-2002 (,  EWCA Civ 958)
Application for permission to appeal out of time (2 years) on an issue in costs. . .
- Cited – Pepin v Watts and Another CA 30-Oct-2002 (,  EWCA Civ 1652)
- Cited – Burstein v Times Newspapers Ltd (No 2) CA 28-Nov-2002 (Times 06-Dec-02, Gazette 23-Jan-03,  1 Costs LR 111, ,  EWCA Civ 1739,  All ER (D) 442)
The defendant complained that the agreement under which the claimant’s solicitors had continued to act on his behalf, despite any realistic prospect of him ever being able to pay their costs, was a sham, and requested a full hearing to determine . .
- Cited – Hollins v Russell CA 25-Jun-2003 (,  EWCA Civ 974,  1 WLR 2487,  3 Costs LR 423,  4 All ER 590)
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 . .
- Cited – Ghannouchi v Houni Limited, Ahmed Salhin El-Houni, Al Arab Publishing House Limited SCCO 4-Mar-2004 (,  EWHC 9002 (Costs))
- Cited – Ilangaratne v British Medical Association ChD 9-May-2007 (,  EWHC 920 (Ch),  1 Costs LR 101)
- Cited – Gower Chemicals Group Litigation v Gower Chemicals Ltd and Another QBD 17-Apr-2008 (,  EWHC 735 (QB))
- Cited – Dranez and others v Hayek and others SCCO 28-Apr-2008 (,  EWHC 90107 (Costs))
- Cited – Tranter v Hansons (Wordsley) Ltd SCCO 18-Jun-2009 (,  EWHC 90145 (Costs))
These lists may be incomplete.
Last Update: 12 November 2020; Ref: scu.182520