swarb.co.uk - law index
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Costs - From: 1992 To: 1992
This page lists 14 cases, and was prepared on 20 May 2019.
Giles v Thompson [1993] 3 All ER 321
1992
CA
Steyn LJ
Litigation Practice, Legal Professions, Costs
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". He added that, while champerty had not "wither[ed] away", its "scope . . has been shrunk greatly". The correct question was whether "in accordance with contemporary public policy, the agreement has in fact caused the corruption of public justice. The court must consider the tendency of the agreement."
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Lockley v National Blood Transfusion Service [1992] 1 WLR 492; [1992] 2 All ER 589
1992
CA
Farquharson LJ, Sir John Megaw, Scott L
Legal Aid, Costs
There was an interlocutory dispute over the granting of an extension of time for service of the defence. The legally aided plaintiff challenged the costs orders made by the district registrar and the judge. Each ordered that the costs be the defendants', "not to be enforced without leave of the court save by way of set-off as against damages and/or costs". Held: The plaintiff's appeal on the costs order failed. "The issue in this appeal is whether, in a case where one party is legally aided, an order for costs in favour of the other party can direct that those costs be set-off against either damages or costs to which the legally aided party has become, or may in future become, entitled in the action."
The court confirmed the right of a party to set off a costs award against a subsequent damages or costs award in favour of an assisted person. Section 16(8) simply preserved those rights of set-off that the general law would allow and protected them against the charge created by section 16(6). It did not create any new right of set-off. Its effect was to make it clear that whatever rights of set-off were available under the general law were available against legally aided parties notwithstanding the board's charge.
Scott LJ discussed the principles applying on an application for set-off costs: "The broad criterion for the application of set-off is that the plaintiff's claim and the defendant's claim are so closely connected that it would be inequitable to allow the plaintiff's claim without taking into account the defendant's claim. As it has sometimes been put, the defendant's claim must, in equity, impeach the plaintiff's claim.
Set-off of costs or damages to which one party is entitled against costs or damages to which another party is entitled depends upon the application of the equitable criterion I have endeavoured to express. It was treated by May J in Currie & Co v The Law Society [1977] QB 990, 1000, as a "question for the court's discretion". It is possible to regard all questions regarding costs as being subject to the statutory discretion conferred on the court by section 51 of the Supreme Court Act 1981. But I would not have thought that a set-off of damages against damages could properly be described as a discretionary matter, nor that a set-off of costs against damages could be so described." and "A set-off of costs against costs, when all are incurred in the prosecution or defence of the same action, seems so natural and equitable as not to need any special justification. I would expect a party objecting to the set-off to give some special reason for the objection. It is, in my opinion, less obvious that a set-off of costs against damages would always be justified."
Legal Aid Act 1974 16(8)
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Knight v FP Special Assets Ltd (1992) 174 CLR 178
1992
Mason CJ, Deane, Dawson, Gaudron JJ, and McHugh J (dissenting)
Costs
(High Court of Australia) Two orders for the payment of costs had been made against the receivers and managers of the claimant in the action, Forest Pty Ltd, and the defendant to a counterclaim brought by the defendants to the action, Howe Corporation Pty Ltd. An order for security for costs had been made against Forest but proved to be insufficient. Judgments were entered by the defendants against both Forest and Howe. The solicitors of record for both Forest and Howe were the solicitors who acted for the creditors secured by the charges under which the receivers and managers were appointed. The solicitors received their instructions in respect of the action and counterclaim from the banks and the receivers and managers. The Supreme court had held that the judges who made those orders had had jurisdiction to do so and, by a majority, that the discretion conferred by the relevant legislation had been properly exercised. Held: The court considered that there was the jurisdiction to make an award.
Mason CJ : "Obviously, the prima facie general principle is that an order for costs is only made against a party to the litigation. As our discussion of the earlier authorities indicates, there are, however, a variety of circumstances in which considerations of justice may, in accordance with general principles relating to awards of costs, support an order for costs against a non-party. Thus, for example, there are several long-established categories of case in which equity recognized that it may be appropriate for such an order to be made.
For our part, we consider it appropriate to recognize a general category of case in which an order for costs should be made against a non-party and which would encompass the case of a receiver of a company who is not a party to the litigation. That category of case consists of circumstances where the party to the litigation is an insolvent person or man of straw, where the non-party has played an active part in the conduct of the litigation and where the non-party, or some person on whose behalf he or she is acting or by whom he or she has been appointed, has an interest in the subject of the litigation. Where the circumstances of a case fall within that category, an order for costs should be made against the non-party if the interests of justice require that it be made."
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Carborundum Abrasives Ltd v Bank of New Zealand (No 2) [1992] 3 NZLR 757
1992
Tompkins J
Commonwealth, Costs
(New Zealand High Court) The court considered the position of company directors in litigation by their companies: "The directors of a company may frequently be in a position different from other non-parties with a direct financial interest in promoting or defending proceedings. Even where a company is in receivership, directors may have a duty to prosecute or defend a claim through the company in the interests of creditors other than the creditor that had appointed the receiver, or in the interests of the shareholders."
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Johnson v Reed Corrugated Cases Ltd [1992] 1 All ER 169
1992
Legal Professions, Costs
The costs principles set out in the Masters' Practice Notes and which endorsed the dual approach of assessing and adding an element to reflect the value at stake in litigation as well as the hourly expense rate of providing that service in all contentious work was applied.
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Loveday v Renton (No 2); 1992 - [1992] 3 All ER 184
C and H Engineering v F Klucznic and Sons Limited [1992] FSR 667
1992
Costs
It is for a defendant to make a clear and unambiguous offer and nothing short of this will provide the protection against costs which is sought.
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Regina v Darling (Wreck Commissioner) Ex Parte Swan Hunter Shipbuilders Ltd; Similar Gazette, 08 January 1992
8 Jan 1992
QBD
Costs, Administrative, Transport
No costs order should normally be made in favour of the relatives of the deceased seamen, following an enquiry by the Wreck Commissioner, save only in cases of hardship. The responsibility for ship safety is a matter of proper concern to ship-builders as well as regulators. The Commissioner having considered all those points which he was obliged to do, his decision was not to be faulted.
Holden and Co v Crown Prosecution Service (No 2); Similar Cases; CA 8-Jan-1992 - Gazette, 08 January 1992; [1992] 1 WLR 407
Regina v Birmingham Juvenile Court Ex Parte H; QBD 8-Apr-1992 - Gazette, 08 April 1992
Regina v Legal Aid Board ex parte Bateman Gazette, 29 April 1992
29 Apr 1992
QBD
Legal Aid, Legal Professions, Costs
A Legally Aided client had no locus standi to challenge the taxation of his own solicitors' costs bill.
Re Elgindata Ltd (2) Gazette, 15 July 1992; Times, 18 June 1992; [1992] 1 WLR 1207
15 Jul 1992
CA
Nourse LJ
Costs
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) Costs are in the discretion of the court. (ii) They should follow the event, except when it appears to the court that in the circumstances of the case some other order should be made. (iii) The general rule does not cease to apply simply because the successful party raises issues or makes allegations on which he fails, but where that has caused a significant increase in the length or cost of the proceedings he may be deprived of the whole or a part of his costs."
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Re Southbourne Sheet Metal Co Ltd Gazette, 09 September 1992; [1993] 1 WLR 244
9 Sep 1992
CA
Nourse LJ
Company, Costs
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 affidavit from one of the receivers of the company. Held: The director's appeal succeeded. A discontinuance by the DTI led to a standard order for costs against the discontinuer.
Company Directors Disqualification Act 1986 - Insolvent Companies (Disqualification of Unfit Directors) Proceedings Rules 1987 (SI 1987 No.2023) 2
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Roache v News Group Newspapers Ltd Independent, 31 December 1992
23 Nov 1992
CA
Sir Thomas Bingham MR, Stuart-Smith LJ
Defamation, Costs
In his libel action the plaintiff was awarded £50,000 damages. The same sum had been paid into court, but he obtained additionally an injunction against further publication of the libel and on that account was awarded his costs by the judge below. The court was asked what costs order should be made after acceptance of a payment into court. Held: The judge must look closely at the facts of the particular case before him and ask: who, as a matter of substance and reality, has won? Has the plaintiff won anything of value which he could not have won without fighting the action through to a finish? Has the defendant substantially denied the plaintiff the prize which the plaintiff fought the action to win? The real question which the judge should have asked was: Why did the plaintiff go on to trial and not accept the money in court: Or, was it a significant factor in the plaintiff's decision not to accept the payment in but instead to proceed to trial that he was concerned to obtain an injunction which he reasonably believed he could not otherwise have got? The power to make a payment into court is a most useful weapon in the hands of a defendant faced with a greedy plaintiff making unreasonable demands for damages, but it will be completely blunted if, having failed to beat the payment into court, the plaintiff can say, 'Oh well, I'm entitled to an injunction, the defendant didn't offer me that and I have had to come to court to get it so I'm entitled to my costs.' Where there is a substantial payment into court which the plaintiff fails to beat, it cannot be right that, because the defendant omits to make a ritualistic offer of an undertaking not to repeat the libel, he has to pay all the costs after payment in.
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