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These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  














Costs - From: 2001 To: 2001

This page lists 122 cases, and was prepared on 20 May 2019.

 
Fence Gate Ltd v NEL Construction Ltd (2001) 82 Con LR 41
2001

His Honour Judge Thornton QC
Arbitration, Costs
An Arbitrator's Award on costs was altered by the Court for a variety of errors by the Arbitrator in his original Award, which were held matters of law. Held: The court set out the principles for such applications: i) For the complaint about a costs award to arise in the form of an appeal, it must be one that can be expressed in the form of a clear question of law. ii) If the complaint is that the decision that the Arbitrator arrived at was wrong because of an error in his appreciation or understanding of the material used as the basis of the award, it may amount to a serious irregularity. But it does not give rise to a question of law. iii) The Arbitrator must not take into account matters which the law or the powers given him by the parties or the general law preclude him from acting on and, conversely, he must not fail to take account of, and give effect to matters that the law requires him to take account of. Moreover, since the tribunal must observe and give effect to the law, the overall discretionary exercise must not be perverse nor one that a reasonable arbitration tribunal properly directing itself could not have reached. iv) A question of law can arise, if it is contended that the Arbitrator misdirected himself by taking into account factors which he should not have done or by failing to take into account factors he should have done (Paragraph 40 of the Judgment).
1 Citers



 
 A v A (Maintenance Pending Suit: Payment of Legal Fees); FD 2001 - [2001] 1 WLR 605
 
In Re C (Legal Aid: Preparation of Bill of Costs) [2001] 1 FLR 602
2001
CA
Hale LJ
Legal Aid, Costs
The appellant argued that the Costs Practice Direction, supplementing Parts 43-48 of the CPR, had the same force in law as the Legal Aid in Family Proceedings (Remuneration) Regulations 1991; and that they impliedly amended or repealed them in so far as they were inconsistent. Held. The argument was rejected. Hale LJ said: "Unlike the Lord Chancellor's orders under his 'Henry VIII' powers, the Civil Procedure Rules 1998 themselves and the 1991 Remuneration Regulations, the Practice Directions are not made by Statutory Instrument. They are not laid before Parliament or subject to either the negative or positive resolution procedures in Parliament. They go though no democratic process at all, although if approved by the Lord Chancellor he will bear ministerial responsibility for them to Parliament. But there is a difference in principle between delegated legislation which may be scrutinised by Parliament and ministerial executive action. There is no ministerial responsibility for Practice Directions made for the Supreme Court by the Heads of Division. As Professor Jolowicz says . . 'It is right that the court should retain its power to regulate its own procedure within the limits set by statutory rules, and to fill in gaps left by those rules; it is wrong that it should have power actually to legislate'."
Legal Aid in Family Proceedings (Remuneration) Regulations 1991 - Civil Procedure Rules
1 Citers



 
 Boxall v Waltham Forest Borough Council; 2001 - (2001) 4 CCLR 258
 
Gorlov v Institute of Chartered Accountants [2001] EWHC Admin 22
2001

Jackson J
Administrative, Costs
The court considered the principles applicable when considering an award of costs against a professional body carrying out its disciplinary function.
1 Citers



 
 Regina v Clerk to Liverpool Magistrates' Court Ex Parte McCormick; Regina v Same; Ex Parte Larkin; QBD 12-Jan-2001 - Times, 12 January 2001
 
Joseph v Boyd and Hutchinson (No 2) [2001] EW Costs 1
16 Jan 2001
SCCO
Mr Justice Jacob sitting with Assessors
Costs
CourtService This is one of the last of the "old" Review cases which will come before the courts antedating as it does the CPR. The Defendant Solicitors had represented the Claimant and her sister in their claim for damages for personal injuries arising out of a traffic accident in 1989. The Claimant is almost uniquely qualified, in that she has been a barrister, is a solicitor and is also a fully qualified costs draftsperson. After those proceedings were successful the Defendants prepared a bill for agreement with the insurers, which claimed a lower hourly rate than that subsequently sought in the bills delivered to the Claimant and her sister. Those costs were agreed and paid, but problems arose over accounting to the Claimant (her sister had assigned all her rights to the Claimant) and accordingly the Claimant, in 1996, started Chancery proceedings for an account. Within those proceedings the Chancery Master directed taxation of the Solicitor’s bill, and this took place over a protracted period, between 1996 and 1999, some of the earlier history being dealt with in Review No.1 of 1999. On this Review a number of points were raised. Firstly, it was contended by the Defendants that the Claimant was a difficult client who had to be handled with special care because of her qualifications, a view which the Judge on appeal rejected.
Secondly, the evidence before the Costs Judge was that the client care letter justifying the higher hourly rate had never been communicated to the Claimant’s sister, and whilst the Costs Judge could not be satisfied that it had been sent to the Claimant, he nevertheless felt that the hourly rates claimed were justified. The Judge disagreed, partly on the basis that the inter partes bill in the same matter had been approved at a lower rate, and also because the Claimant, when drafting bills for the Defendants, in her capacity of a costs draftsperson, had done so at lower hourly rates.
The Judge also rejected the Costs Judge’s view that the interlocutory uplift for conferences etc should be 50% rather than 35%.
Finally the Judge felt that the Claimant should recover her costs of the Review on the indemnity basis because of the conduct of the Defendants in not keeping the Claimant fully informed of what was happening in her name (notably not notifying her that a Calderbank offer had been made in respect of the inter partes costs).
Some of the evidence had not been before the Costs Judge, but nevertheless the Judge felt that it was an appropriate case to direct that the Defendants should pay costs on the indemnity basis, and the matter was remitted to a different Costs Judge for final resolution

 
Joseph v Boyd and Hutchinson (No.2) [2001] EWHC 9002 (Costs)
16 Jan 2001
SCCO

Costs

[ Bailii ]
 
Slot and Another v East Hampshire District Council [2001] EWCA Civ 1214
19 Jan 2001
CA
Jonathan Parker LJ
Costs

[ Bailii ]
 
S Hackett v Vaw Motorcast Ltd EAT/10/00
22 Jan 2001
EAT
His Honour Judge Collins Cbe
Costs, Employment
The appellants appealed a decision awarding costs against them following a failed application. An order had been made under the rules requiring them to deposit costs against the expectation of the tribunal that their claim would fail. The eventual order of the tribunal, upon that failure, included a further order for costs against them The appeal was on the basis that at no pint in the decision did the chairman say how he had concluded that rule 12(7) applied, and how they had been unreasonable in persisting. The decision was at fault. Although the application could be expected to fail, it was on a difference of fact, and it was not so unreasonable of the applicants to have persisted. The decision awarding costs against them was set aside.
EAT Unfair Dismissal - Compensation
Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993
1 Cites


 
The Secretary of State For Trade and Industry v John Backhouse Times, 23 February 2001; Gazette, 01 March 2001; [2001] EWCA Civ 1222
26 Jan 2001
CA

Costs, Company
Although the director of the companies being wound up was not himself a party to the winding up process, it was clear that he had exercised such entire control of them as to have treated them as an extension of himself. He had arranged for the proceedings to be resisted disregarding the interests of creditors, and for the purpose only of protecting his own personal reputation. In such circumstances it was proper to order him to pay the costs of the proceedings himself.
[ Bailii ]
 
Secretary of State for Trade and Industry v Blackhouse [2001] EWCA Civ 67; [2001] 1 BCLC 468; [2002] BCC 441
26 Jan 2001
CA

Insolvency, Costs

[ Bailii ]
 
Forrester Ketley and Co v Brent [2001] EWCA Civ 199
29 Jan 2001
CA
Chadwick, Keene LJJ
Costs
Appeal by client against orders for payment of his patent agents' fees.
[ Bailii ]
 
Turkan and Co (A Firm) and Another v Toplum Postasi Ltd and Another [2001] EWCA Civ 99
29 Jan 2001
CA
Tuckey LJ
Defamation, Costs
Application for security for costs by the claimants in these proceedings who are respondents to an appeal by the unsuccessful defendants in this libel case.
[ Bailii ]
 
Deg-Deutsche Investitions Und Entwicklungsgesellschaft Mbh v Koshy and others [2001] EWCA Civ 79
30 Jan 2001
CA

Costs

[ Bailii ]
 
Ahmed v Blackburn and Co and others [2001] EWCA Civ 141
31 Jan 2001
CA
May LJ
Costs

[ Bailii ]

 
 Eagleson v Liddell; CA 2-Feb-2001 - [2001] EWCA Civ 155
 
Standard Chartered Bank v Pakistan National Shipping Corporation and others [2001] EWCA Civ 183
6 Feb 2001
CA

Torts - Other, Costs

[ Bailii ]
 
Howell v Virani and Another [2001] EWCA Civ 156
6 Feb 2001
CA

Torts - Other, Costs
Application for leave to appeal - refusal to correct mistake in costs order
[ Bailii ]
 
Carr v Bemrose and Another [2001] EWCA Civ 194
7 Feb 2001
CA

Land, Costs
Costs order after neighbour dispute.
[ Bailii ]
 
Deg-Deutsche Investitions Und Entwicklungsgesellshaft Mbh v Koshy and Others Times, 20 February 2001; Gazette, 01 March 2001; [2001] EWCA Civ 1228
20 Feb 2001
CA

Legal Aid, Costs
The effect of revocation of a party's emergency civil legal aid certificate was that he was to be deemed never to have been an assisted person. Accordingly where two costs orders had been made in interlocutory proceedings, and the defendant had been protected from an order for costs because of the legal aid certificate, it was open to a judge to revisit those costs orders after revocation and to consider substituting orders which could not have been made when he was legally aided. The provisions in this case survived some of the repeals under the new legislation.
Legal Aid Act 1988 - Access to Justice Act 1999 - Civil Legal Aid (General) Regulations 1989
1 Citers

[ Bailii ]
 
Gore v Jones and Another Times, 21 February 2001
21 Feb 2001
ChD

Costs
The imposition of costs against a defendant on acceding to an application to set aside a judgment was not automatic, but an exercise of the judge's discretion. An appeal might still only be allowed if the judge's order was wrong in law or unjust through some serious procedural or other irregularity.


 
 Regina v Leicester Crown Court, ex parte Commissioners of Customs and Excise; QBD 23-Feb-2001 - Times, 23 February 2001
 
John Weth and Others v Her Majesty's Attorney General and Others [2001] EWCA Civ 263
23 Feb 2001
CA
Lord Justice Mummery Lord Justice Rix and Mr Justice Holman
Charity, Costs
A charitable trust had been established. Protracted disputes had taken place, and the burden of the costs required to be apportioned. The financial practices of the charity had been informal leading to confusion, and dissension. An intervention by the Charity Commission had been opposed. The judge had refused an order that the trustees who had been removed should be indemnified from the fund. Held: The order made was within the discretion available to the judge. He had obtained all the necessary information about the matter. The appeals entered into by the applicants had no possible benefit for the charity. It was pointless, and there was no reason for the applicants to be indemnified in costs.
1 Cites

[ Bailii ]
 
Stacey v Player and Another Gazette, 08 March 2001; Times, 23 February 2001
23 Feb 2001
ChD

Costs, Legal Aid
A party was legally aided in proceedings. A third party offered to pay his costs in interlocutory proceedings. He was successful, and the losing party appealed an order to pay his costs. He succeeded. Whilst he was legally aided, his solicitors could only receive payment from the Legal Services Commission, and the fact that someone else might have paid did not allow an order against the third party. Such an order would leave the solicitors receiving payment other than from the LSC.
Civil Legal Aid (General) Regulations 1989 64

 
Jones and Another, Regina (on the Application of) v North Warwickshire Borough Council [2001] EWCA Civ 315; [2001] PLCR 31; [2001] JPL 1434 (Note); [2001] 2 PLR 59; [2001] NPC 52
1 Mar 2001
CA

Planning, Costs

[ Bailii ]
 
Doncaster Metropolitan Borough Council v Hancock [2001] EW Costs 2
2 Mar 2001
SCCO
Silber Jm with Assessors
Costs
CS The Defendant had been employed by the Claimant ouncil for many years, initially as an advisor on further and higher education, but latterly as an education assistant. The Claimants informed the Defendant that his contract of employment would terminate on grounds of redundancy with effect from 15 December 1995. On that date, when the Defendant’s contract of employment terminated, the Claimants paid into his bank account over £24,000, being the redundancy payment due to him calculated in accordance with the Claimants redundancy scheme. However, on the same day, the Defendant had contacted the Claimants explaining that he had suffered a breakdown in his mental health, and asking if they would consider allowing him to retire on medical grounds, to which the Claimants did agree, provided that he did not in fact receive a larger sum than the redundancy payment that had already been paid. However a second payment was made, and the Claimants therefore obtained a freezing injunction to prevent the Defendant spending that sum, and in July 1996 a Queens Bench Master granted summary judgment to the Claimants for £24,000 odd with over £1,100 interest and costs. The Defendant applied for permission to appeal out of time, and although Ian Kennedy J granted that permission, he nevertheless dismissed the appeal with costs. The Defendant’s main objection to the assessment which took place before the Costs Judge was that his rights under the European Convention on Human Rights, as brought into English law by the Human Rights Act 1998, had been infringed. He in particular relied on Article 6. His primary contention was that because the application for summary judgment was heard in Chambers, by both the Master and the Judge, they were in breach of Article 6, but, after reviewing the authorities, the Judge rejected that contention. The Judge also rejected a contention by the Defendant that his Human Rights had been breached by the obtaining of the Claimants of their freezing injunction on an ex parte basis. Next the Defendant contended that the reasoning of the Queens Bench Master could be impugned because he had not produced it in writing. The Judge held that he had no obligation to do so, but, even if he had, any defect was cured, because, on appeal, the Judge had given full and adequate reasons, which had not been the subject of any further appeal. The final principal ground of objection by the Defendant was that the Costs Judge had not sought to enlist the assistance of the Official Solicitor as a Friend of the Court. The Judge, who of course heard the Defendant in person, said: "I suspect that there are many competent lawyers who if instructed on behalf of the Defendant would not have been as able to put forward as persuasive a case as the Defendant has. Having reviewed the evidence, I am also satisfied that there were no arguments open to him that he did not pursue." The Judge accordingly held that this was not a good ground of appeal, but, even if it had been, it would not have allowed the Defendant to impugn the costs order or the order of the Costs Judge. There was also a cross appeal by the Claimants in respect of the Costs Judge’s decision disallowing the Claimant’s costs of their successful application for the grant of the freezing injunction. The Judge held that the Costs Judge had been wrong in this respect, but as the Claimants only wished to pursue their cross appeal if and to the extent that the Defendant was successful in his own appeal, their cross appeal was formally dismissed.

 
Doncaster Metropolitan Borough Council v Hancock [2001] EWHC 9003 (Costs)
2 Mar 2001
SCCO

Costs

[ Bailii ]

 
 Regina v Legal Aid Board, Ex Parte Burrows; CA 8-Mar-2001 - Gazette, 08 March 2001; Times, 16 March 2001
 
Edwards v Devon and Cornwall Constabulary [2001] EWCA Civ 388; [2001] CPLR 323
13 Mar 2001
CA
Sir Andrew Morritt VC, Robrt Walker LJ
Costs
Appeal from summary costs asessment.
[ Bailii ]
 
Pertemps Group Ltd v Needham and Needham Ltd [2001] EWCA Civ 390
15 Mar 2001
CA
Latham LJ
Costs

[ Bailii ]
 
Regina v Her Majesty's Coroner for Inner London North ex parte Peter Francis Touche Gazette, 17 May 2001; [2001] EWCA Civ 383; [2001] QB 1206
21 Mar 2001
CA

Coroners, Costs
The applicant's wife had died of a cerebral haemorrhage, the result of severe hypertension, possibly secondary to eclampsia. The coroner decided not to hold an inquest. The issue raised was whether he was required to hold an inquest because there was reasonable cause to suspect that she had died an unnatural death. Held: The coroner was wrong to conclude that a death was not unnatural within the Act where the death had occurred at a hospital when the hospital had failed adequately to monitor her blood pressure. The failure of a hospital to maintain standards of care was of concern to the public, and one of the coroners. Costs were awarded to the claimant both at the Court of Appeal and at the High Court, against the coroner when directing a new inquest into the death when there was no other means of indemnifying him for the expense to which he had been put, even though the coroner was a judicial officer who had conducted himself impeccably.
Coroners Act 1988 8(1)(a)
1 Cites

1 Citers

[ Bailii ]
 
Clark v Ardington Electrical Services [2001] EWCA Civ 585
4 Apr 2001
CA

Litigation Practice, Costs

1 Citers

[ Bailii ]

 
 In Re Wiseman Lee (Solicitors) (Wasted Costs Order) (No 5 of 2000); CACD 5-Apr-2001 - Times, 05 April 2001
 
Stockinger v Highdorn Co Ltd and Ors [2001] EW Costs 3; [2001] EWHC 9004 (Costs)
5 Apr 2001
SCCO

Costs
The Claimant, a highly qualified lawyer in several foreign jurisdictions, only acquired a practising certificate in this country in 1998. He was a successful commercial lawyer practising as a sole practitioner in the City of London, but in his "spare time" was working on a revision of the Merchant Shipping Acts. In that connection he had accumulated a substantial and very distinctive personal library of books which he kept in his flat. When that flat had to be rewired the landlords asked him to put the books into a outbuilding, from which unfortunately they were taken and destroyed. He brought proceedings, acting in person throughout, claiming damages against those responsible, and succeeded to the extent of £96,000, together with costs. Those costs were assessed by a Deputy Costs Judge over a four day period, spread over several months, and a number of difficult points arose, of which the Claimant wished to bring 25 on appeal. He was allowed to bring forward only five, and of these only three justify mention in this summary. The first is the hourly rate to be allowed to him for work done in the period prior to that in which he got an English practising certificate. The Deputy Costs Judge had allowed him £90 per hour, being £10 per hour less than two thirds of the hourly rate claimed. The Judge upheld the Deputy Costs Judge’s view that if the Defendant had chosen to instruct solicitors he would not have gone to a City firm for this sort of case, which was conducted in Clerkenwell County Court, but rather would have gone to a medium sized Holborn or West End firm. Nevertheless the Judge held that the Claimant was entitled to the full two thirds of what a solicitor would have charged, and there was no warrant for any reduction such as made by the Deputy Costs Judge.
The next point concerned time spent by the Claimant in preparing a schedule of lost books for the benefit of loss adjusters before the action was brought. The Deputy Costs Judge held that that work was done too far before the institution of proceedings to be recoverable as part of the costs of the proceedings, but the Judge on appeal took the opposite view.
The third point concerns the appropriate way to charge the hours spent in calculating the value of the lost books. The Claimant in fact used para-legals from his office at an hourly rate of £75. However his own expert in evidence in the County Court proceedings had said that it was a mechanical exercise which could be conducted by someone of a lower clerical level. The Deputy Costs Judge allowed the higher rate, but for a far lower number of hours than claimed by the Claimant. On appeal the Judge, on advice from his assessors, held that the hourly rate claimed and allowed was too high, but that the hours allowed by the Deputy Costs Judge had been too few, and he substantially increased these accordingly, resulting in a small net increase for the claimant on this head of his appeal.
The final argument was that the Claimant was entitled to a much higher figure for costs overall than he had been allowed, based on a comment of Mr Justice Lightman in the case of Bank of Credit International SA (in liquidation) v Ali [2000] The Times, 2 March, where that Judge had said:
"The costs order in favour of the successful party is generally to be adopted as calculated to achieve the ends of justice, but the court in any particular case might make a different order if on the facts of that case justice so required."
The Judge in this appeal held that those words were not directed to an assessment of costs which had its own specific and clear rules, and concluded:
"Whilst any Judge dealing with this matter is seeking to arrive at a just result it has to be obtained within the parameters of the Civil Procedure Rules when taken as a whole."
On the question of the costs of the appeal the Judge awarded the Claimant 60% of these on the basis that his success in monetary terms had been relatively modest in relation to the substantial claims advanced on the appeal.
[ Bailii ]
 
Johnsey Estates and Limited v Secretary of State for Environment [2001] EWCA Civ 535
11 Apr 2001
CA
Chadwick LJ
Costs
Chadwick LJ: "The principles applicable in the present case may, I think, be summarised as follows: (i) costs cannot be recovered except under an order of the court; (ii) the question whether to make any order as to costs - and, if so, what order - is a matter entrusted to the discretion of the trial judge; (iii) the starting point for the exercise of discretion is that costs should follow the event; nevertheless, (iv) the judge may make different orders for costs in relation to discrete issues - and, in particular, should consider doing so where a party has been successful on one issue but unsuccessful on another issue and, in that event, may make an order for costs against the party who has been generally successful in the litigation; and (v) the judge may deprive a party of costs on an issue on which he has been successful if satisfied that the party has acted unreasonably in relation to that issue; (vi) an appellate court should not interfere with the judge's exercise of discretion merely because it takes the view that it would have exercised that discretion differently."
1 Citers

[ Bailii ]
 
Solutia UK Limited v Griffiths [2001] EWCA Civ 736; [2001] 2 Costs LR 247; [2001] CP Rep 92; [2002] PIQR P16; [2001] CPLR 419
26 Apr 2001
CA
Latham.Mance LJJ, Sir Christopher Staughton
Costs, Civil Procedure Rules
The court considered issues relating to the appropriateness of the claimants instructing London solicitors in a case in which those solicitors had submitted a bill of costs totalling £220,000 in connection with a claim in which their clients had recovered £90,000. Sir Christopher Staughton said: "So surely case management powers will allow a judge in the future to exercise the power of limiting costs, either indirectly or even directly, so that they are proportionate to the amount involved."
Mance LJ said: "The present litigation was conducted under the old rules preceding the Woolf reforms. It is to be hoped that subsequent to the Woolf reforms judges conducting cases will make full use of their powers under the Practice Direction about costs, section 6, which appears in the Civil Procedure White Book 43/PD-006, to obtain estimates of costs and to exercise their powers in respect of cost and case management to keep costs within the bounds of the proportionate in accordance with the overriding objective."
1 Citers

[ Bailii ]
 
Patterson v Cape Darlington and 15 other Defendants [2001] EW Costs 4
1 May 2001
SCCO
Mr Justice Astill sitting with Assessors
Costs
CourtService This was an appeal by the sixteen Defendants. The Claimant had brought a claim for damages for personal injuries, namely, an asbestosis related disease sustained in consequence of his employment with some or all of the Defendants. The Claimant lived and worked in Liverpool. He was a member of the General and Municiple Boilerman’s Union and of the Liverpool & District Victims of Asbestos Support Group. This group advised him to instruct a London firm of solicitors to act for him in connection with his claim. This he did and the proceedings were brought in the Central London County Court. The case was settled. At the detailed assessment hearing of the Claimant’s Bill of Costs, the Defendants representatives challenged the use of London Solicitors and submitted that the Claimant should have instructed Liverpool solicitors and that the hourly rate should be adjusted accordingly. The Defendants had instructed solicitors in the North East of England. It was accepted by Counsel for both sides that an appeal from the Master is limited to a review of his decision and that on appeal it had to be shown by the Appellant that the Costs Judge’s decision was either wrong in law or was unreasonable. Held: On the facts of this case the decision was not wrong in law, and it was not unreasonable. The Claimant had been advised by both his Union and the Liverpool & District Victims of Asbestosis Support Group to use a particular firm of solicitors whose offices were in London. The Judge stressed that on the facts of this case he could not find that the decision of the Master was either wrong in law or that it was unreasonable. The Judgment was given in chambers and neither side had requested transcripts of the Judgment.

 
Bassett v Gateway 2000 Europe [2001] EWCA Civ 683
4 May 2001
CA
Pill LJ
Costs
Appeal against dismissal of claim after failure to pay expert and other costs
[ Bailii ]
 
Oko-Jaja v Lewisham Borough of Lewisham EAT/417/00; [2001] UKEAT 417 - 00 - 0805
8 May 2001
EAT
Mrs Recorder Cox QC
Discrimination, Employment, Costs
The applicant had complained of disability discrimination, and failed. He had been ordered to pay a sum towards the costs of the respondent. He appealed that order. He had previously issued a complaint, and lost that complaint, being warned then of the possibility of such an order. This second complaint was of victimisation, but the decision makers knew nothing of his first complaint. His complaint was dismissed. The tribunal recognised the unreasonableness of his complaint, and the substantial cost to the respondent, and awarded pounds 250 costs. The respondent cross appealed, saying that the award should not have been so limited. Held: In making that decision the tribunal had taken into account a suggestion that the appellant had had all relevant evidence available to him from an early stage. The nature of victimisation complaints is that they are difficult to prove, and it may often be proper for a complainant to rely upon the hope of cross examination.
EAT Procedural Issues - Employment Tribunal.
Employment Tribunals Constitution and Procedure Regulations 1993 Sch 1 r 12
1 Cites

[ Bailii ] - [ EAT ]
 
Patterson v Cape Darlington and others [2001] EWHC 9005 (Costs)
15 May 2001
SCCO

Costs

[ Bailii ]

 
 1-800 Flowers Inc v Phonenames Ltd; CA 17-May-2001 - Times, 09 July 2001; Gazette, 12 July 2001; [2002] FSR 191; [2001] EWCA Civ 721; (2001) 24(7) IPD 24042; [2002] Masons CLR 5; [2001] 2 Costs LR 286
 
Clark Goldring and Page Ltd v ANC Ltd Gazette, 17 May 2001
17 May 2001
ChD

Costs
A defendant made a payment into court in respect of some but not all of the issues in the case. The payment in was accepted, and the claimant continued to litigate the balance of his claim. He sought his costs in respect of the matters settled by the payment in. He was not entitled to them as of right, but the court could order them to be paid in its discretion. The rule as to payment was only automatic when it brought an end to the proceedings as a whole. There is some small conflict within the rules, but the overall intent is clear.
Civil Procedure Rules 36.11 (1) and 36.13

 
Stocznia Gdanska SA v Latvian Shipping Company and Others Times, 25 May 2001; [2001] EWHC 500 (Comm)
25 May 2001
ComC
Thomas J
Costs, Insolvency
When a claimant commenced litigating several issues, but succeeded only on some of the them, the rule allowing an award of costs to the generally successful party was not dependent upon questions of whether the party was reasonable to have raised them. The reasonableness of pursuing a point was not necessarily relevant. The sub-paragraph was distinct from other allowing issues as to the conduct of the parties. One purpose of the rules was to persuade parties to reduce the number of claims they made to encourage a reduction in the costs of litigation.
Civil Procedure Rules 44.3(2)
1 Cites

1 Citers

[ Bailii ]
 
Zappia Middle East Construction Company Ltd and Another v Clifford Chance (A Firm) [2001] EWCA Civ 946
5 Jun 2001
CA

Costs
Application for leave to appeal.
[ Bailii ]
 
Cantor Fitzgerald International v Tradition (UK) Ltd and others [2001] EWCA Civ 942
11 Jun 2001
CA

Costs

[ Bailii ]

 
 Regina (Gunn) v Secretary of State for the Home Department Regina (Kelly) v Same Regina (Zahid Khan) v Same; CA 14-Jun-2001 - Times, 20 June 2001; Gazette, 05 July 2001; [2001] EWCA Civ 891; [2001] 1 WLR 1634; [2001] CP Rep 107; [2001] 3 All ER 481; [2001] 2 Costs LR 263
 
Pegler Ltd v Wang (Uk) Ltd and Another [2001] EWCA Civ 1019
18 Jun 2001
CA
Kay LJ, Keene LJ
Contract, Damages, Costs
Costs had been awarded against the third party, the parent company of the defendant. Leave to appeal was sought. Held: It was arguable that the judge had not taken into account properly the interest of the company in protecting the interests of creditors and not just itself. Leave was given.
Supreme Court Act 1981 51
1 Cites

[ Bailii ]
 
Lionel Goldstein v Ron Conley (2) Gazette, 21 June 2001; [2001] EWCA Civ 637
21 Jun 2001
CA

Landlord and Tenant, Costs
A case went from the leasehold valuation tribunal, where there was no jurisdiction to award costs, to the Lands Appeal Tribunal where the Tribunal awarded costs against the applicant, and again to the High Court where the landlord sought to enforce the costs award. The tenant argued that the LAT had no power to award costs on an appeal from the LVT. It was held that the proceedings at the LAT were separate proceedings for which a full power to award costs existed, and that the High Court had full power to enforce the costs order, through its inherent powers, just as it had power to enforce a judgment of a foreign court.
Leasehold Reform Housing and Urban Development Act 1993
[ Bailii ]
 
Times Newspapers Ltd v Chohan Gazette, 26 July 2001; [2001] EWCA Civ 964
22 Jun 2001
CA
Aldous LJ, Robert Walker LJ, Jonathan Parker LJ
Costs, Limitation
The limitation period on collection of an award of costs, must run from the date of the costs certificate. It was only at that point when it became enforceable. It would be an abuse to bring an action for enforce the costs award before that date. The word enforceable had to mean enforceable in a practical way. Until certified there was nothing to enforce.
Limitation Act 1980 24
1 Cites

[ Bailii ]
 
O'Shea v Abbey National [2001] EW Costs 4
29 Jun 2001
SCCO
Mr Justice Grigson sitting with Assessors
Costs
CS The Claimant had defaulted on his mortgage with Abbey National and possession proceedings had taken place. Under the terms of the Claimant's mortgage, the Abbey National was entitled to add the costs of the possession proceedings to the advance. Concerned at the level of these costs the Claimant issued proceedings in person under the Solicitors Act and obtained an order for detailed assessment of the Abbey's solicitors charges, Messrs Shoosmiths. Following 1.5 days argument, the Claimant secured very modest reductions and failed to beat the one fifth rule. He was ordered to pay the costs of reference and the Master refused permission to appeal on the grounds that there were no reasonable prospects of success, disproportionate costs would be incurred in an appeal and there was no breach of the Claimant's human rights. The Claimant applied to Mr Justice Gray for permission to appeal. This was given on the grounds that: "In the absence of any documents relating to the hearing and the assessment before the Costs Judge, it is impossible for me to say whether an appeal would have a realistic prospect of success. Bearing in mind that the Appellant is acting in person, I think that the convenient course is to grant permission."
The appeal came before Mr Justice Grigson sitting with assessors (Anthony Cowen and myself) on 29 June 2001. At the outset of the hearing, the usher informed the Judge that the Claimant now had a solicitor acting for him. However it transpired during the course of argument that the Claimant's representative was a legal executive who had assisted as a McKenzie Friend during the detailed assessment. The Judge permitted him to continue as an advocate on the Claimant's behalf.
The Claimant had served a lengthy notice of appeal taking wide ranging points. These were largely abandoned by the legal executive who confined his submissions to two principal issues:-
(1) The bills which had been rendered to the Abbey National by Shoosmiths were not proper bills because they were unaccompanied by narratives and did not comply with the Solicitors Act. The Judge dismissed this submission for three reasons. First, the point had not been taken before the Master. Second, the Claimant had consented to the order for detailed assessment of Shoosmiths bills and thereby had waived any right to argue that they did not comply with the Solicitors Act. Third, the Master had found as a fact that the narratives had been attached to the invoices; this was a decision he was entitled to take on the evidence before him and was not now susceptible to appeal.
(2) The Master had been wrong to deduct disallowances from the breakdowns of the bills and should, instead, have applied the reductions to the gross sum bill. The Judge rejected this submission. He said that it was common practice for solicitors to round down bills and that as Shoosmiths had not charged Abbey National as much as they could reasonably have done, this was to the Claimant's advantage since he was ultimately responsible for payment of their accounts.
The Master had assessed the invoices at £14,021.33 inclusive of VAT plus £6,218.75 costs. The Defendant's schedule of costs for the appeal including VAT claimed £8,973.60. On advice from the assessors, the Judge allowed £5,000 plus VAT. Of this sum, £1,209 plus VAT represented the cost of a transcript of the hearing before the Master which was obtained subsequent to the application to Gray J. In his Notice of Appeal, the Claimant had contended that the Master had prevented him taking advice from his McKenzie Friend and that no account had been taken of the Claimant's assertions that the claims for timed letters and telephone calls were unreasonable. The transcript revealed that the Claimant's submissions had no basis or foundation which was probably the reason why the appeal on these points was abandoned.

 
O'Shea v Abbey National [2001] EWHC 9006 (Costs)
29 Jun 2001
SCCO

Costs

[ Bailii ]
 
McPhilemy v Times Newspapers Ltd (No 4) Times, 03 July 2001; [2001] EMLR 858
3 Jul 2001
CA
Lord Woolf MR
Costs, Defamation
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 condemnation of the plaintiff. Nor was it wrong to award interest on the costs. The purpose of the rule was to correct the perceived injustice of the general rule against awarding interest on costs in defamation cases. The general rule that interest is not awarded on damages costs is because the assessment of damages by the jury is intended to reflect the damage to reputation up to the date of the award.
Simon Brown LJ said: "When dismissing the principal appeal, we left over for decision whether The Times should pay the respondent's costs of that appeal on a standard or an indemnity basis. Clearly rather more of a stigma attaches to an indemnity costs order made in this context than in the context of a rule 36.21 offer - although even then no moral condemnation of the appellant's lawyers is necessarily implied. ."
Civil Procedure Rules 36.21
1 Cites

1 Citers


 
Sengoz v Secretary of State for the Home Department Times, 13 August 2001
5 Jul 2001
CA
Potter LJ, Hale LJ
Costs
The applicant had sought and been granted leave to appeal from the Immigration Appeal Tribunal. At a late stage, the Secretary of State agreed that the matter should be reheard. The applicant sought the costs wasted in preparing for the appeal. Held: It was incumbent upon the Secretary to keep in mind the need to avoid unnecessary incurring of costs, but the normal result of such an application would be that no order for costs would be made. Parties should not be discouraged from seeking settlements. Until the grounds of appeal had been gully considered, the Secretary could not have made a decision, and in this case no costs order should be made.


 
 Molloy v Shell UK Ltd; CA 6-Jul-2001 - [2001] EWCA Civ 1272; [2002] PIQR P7
 
Daly v Hubner [2001] EWHC 530 (Ch); [2002] Lloyd's Rep PN 461
9 Jul 2001
ChD
Etherton J
Costs
Etherton J considered a wasted costs order application. Held: The case did not satisfy the merits test in paragraph 53.6(1)(a) CPD. Etherton J considered the proportionality test in paragraph 53.6(1)(b) also. In that case the costs in issue were 75% of $98,000. The costs of the applicant for wasted costs to date were $24,000 and the costs of the respondents together so far were $46,000. Thus $70,000 so far had been spent to seek an order for $73,500. Etherton J held that the costs of pursuing the wasted costs jurisdiction were so disproportionate to the costs of the issue that even if he had been of a different view on the merits test, he would not be satisfied that the application or its further pursuit would be justified.
Civil Procedure Riles 53.6(1)(b)
1 Citers

[ Bailii ]
 
Sir Elton Hercules John and Others v Price Waterhouse and Others Times, 22 August 2001; Gazette, 06 September 2001; [2001] EWHC Ch 391; [2002] EWCA Civ 899
12 Jul 2001
ChD
The Hon Mr Justice Ferris
Company, Costs
The applicants were auditors to the company, and, having successfully defended a claim by the company, sought their costs on an indemnity basis, rather than on the standard basis as awarded. Held: The auditors, as also for directors, were given a right under Table A to an indemnity, and that indemnity was not displaced by an otherwise comprehensive terms of appointment letter. Even though they might have the right to commence a second action to recover the difference between the costs award and their rights under the appointment, a court should be reluctant, in costs proceedings, to make an award on this basis. Even though the company may have no effective defence to a second claim, the costs in the case before the court should be on the standard basis.
Companies (Tables A to F) Regulations 1985 (1985 No 805)
[ Bailii ] - [ Bailii ]
 
Hamilton v Al-Fayed and Others (No 3) Times, 25 July 2001; [2001] EWHC QB 389
13 Jul 2001
QBD
The Hon Mr Justice Morland
Costs, Defamation, Litigation Practice
Where a person funded another's court action as an act of charity, it should be exceptional to order that third party to contribute to the costs of the successful opponent. Nevertheless there could be no absolute rule against such orders. There is a clear distinction between those who act in this way as pure funders, and those who funded litigation from some contractual obligation. Another relevant consideration was whether the funder had information to suggest that the claimant had a reasonable prospect of success, or whether he acted as some quixotic philanthropist.
Courts and Legal Services Act 1990 4(1)
[ Bailii ]

 
 Callery, Gregory Charles Russell v Charles Gray, Pal Pak Corrugated Ltd (No 1); CA 18-Jul-2001 - Times, 18 July 2001; Gazette, 13 September 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

 
 Fereidooni v Pettman Smith; SCCO 18-Jul-2001 - [2001] EW Costs 6; [2001] EWHC 9007 (Costs)
 
Surzur Overseas Ltd v Nicholas Koros and others [2001] EWHC 9008 (Costs)
20 Jul 2001
SCCO

Costs

[ Bailii ]
 
Surzur Overseas Ltd v Nicholas Koros and Others [2001] EW Costs 7
20 Jul 2001
SCCO
Mr Justice Forbes sitting with Assessors
Costs
The Claimant company, a subsidiary of Société Generale of France, lent substantial sums of money to a group of ship owning companies managed by Blue Flag Navigation Ltd. The principal of Blue Flag was Mr Koros the First Defendant, he also guaranteed the loans to the various shipping companies. By the end of 1996 the companies were in default of their obligations under the loan facilities and in December 1996 the claimant company demanded repayment of some US $54 million from the First Defendant as guarantor. In January 1997 Surzur obtained a mareva injunction over Mr Koros’ assets and issued proceedings against him. In April 1997 judgment was obtained against him in the sum of US $35 million. The Claimant’s case in these proceedings was that the various Defendants conspired between themselves and with Mr Koros to use unlawful means to cheat and defraud Surzur by concealing Mr Koros’ assets. It was asserted that the Defendants made fraudulent and misleading statements, forged documents, gave false and misleading instructions to solicitors, made dishonest and malicious applications to court and procured and deployed false evidence both in and out of court. The 2nd, 13th and 14th Defendants were all resident in Greece and made applications to set aside the service of the proceedings against them on various grounds. One of these proved successful before Longmore J, namely that the case against them was not reasonably arguable because, as a matter of law, they were immune from suit on the basis of witness immunity. Longmore J found in favour of the Defendants and the Claimant appealed to the Court of Appeal where that decision was reversed. The Defendants’ petition for leave to appeal to the House of Lords was dismissed.

 
Kelway v Guardian Insurance Ltd [2001] EWCA Civ 1265
25 Jul 2001
CA
Tuckey LJ
Costs
Application by proposed respondent to appeal for security for costs
[ Bailii ]
 
Director General of Fair Trading v Proprietary Association of Great Britain and Another [2001] EWCA Civ 1217
26 Jul 2001
CA
Lord Justice Brooke, Lord Justice Robert Walker, Master of the Rolls
Administrative, Costs, Human Rights
The appeal court had previously remitted a matter to the Restrictive Practices court, having found that the court might be biased. The parties having settled the main litigation, they sought the additional costs incurred by them in correcting what they said was the fault of the court. The Lord Chancellor responded that the parties were acting only in a representative capacity, the court hearing was not determinative of their rights, thus their Human rights had not been infringed. No representative order had been made. The request failed.
Supreme Court Act 1981 51 - Human Rights Act 1998 - Restrictive Practices Court (Resale Prices) Rules 1976 9(b)
[ Bailii ]
 
Mahmood and Another v Penrose and others [2001] EWCA Civ 1336
30 Jul 2001
CA
Mance LJ
Costs

[ Bailii ]
 
Sunrise Radio Ltd v Sharma [2001] EWCA Civ 1312
31 Jul 2001
CA

Costs

[ Bailii ]
 
Callery v Gray (No 2) Times, 24 October 2001; [2001] EWCA Civ 1246; [2001] 1 WLR 2142; [2001] 2 Costs LR 205; [2002] RTR 11; [2001] 4 All ER 1; [2001] CPLR 501; [2001] Lloyd's Rep IR 765
31 Jul 2001
CA
Lord Phillips of Worth Matravers, Master of the Rolls, and Lord Justice Brooke
Costs, Personal Injury
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 recoverable, but the court did not have sufficient information to decide what was a reasonable premium. Several elements were clearly required to be covered by a premium, such as would make the insurer's business properly viable, but the premium was challenged as to the benefit payable by way of re-imbursement of disbursements paid by the insured in the event of a failure of the claim. S29 should be read to include the insurance for costs which were not recoverable from the other party, including such disbursements.
The court defined insurance: 'Insurance is the purchase of an indemnity against the risk of loss caused by a fortuity'.
Access to Justice Act 1999 29
1 Cites

1 Citers

[ Bailii ]

 
 Regina (Leach) v Commissioner for Local Administration; QBD 2-Aug-2001 - Times, 02 August 2001; [2001] EWHC Admin 445
 
Appleyard v Thanet District Council and Another [2001] EWCA Civ 1382
29 Aug 2001
CA
Tuckey LJ
Costs, Personal Injury
Renewed application for permission to appeal part of an order for costs.
[ Bailii ]
 
Wulfsohn, Regina (on the Application of) v Legal Services Commission [2001] EWCA Civ 1413
31 Aug 2001
CA
Dyson LJ
Costs
Mr Wulfsohn sought (and was granted) leave to appeal against an assessment of the costs payable to him as a successful litigant in person.
1 Citers

[ Bailii ]

 
 McDougall v Tawse; ScSf 14-Sep-2001 - [2001] ScotSC 17
 
Sarwar v Alam Times, 11 October 2001; [2001] EWCA Civ 1401; [2002] RTR 12; [2001] 4 All ER 541; [2002] 1 WLR 125; [2002] 1 Costs LR 37; [2002] Lloyd' Rep IR 126; [2002] PIQR P15
19 Sep 2001
CA
Judge Halbert, District Judge Wallace
Litigation Practice, Damages, Costs, Legal Professions, Insurance
Litigation had followed an accident. The claimant, a passenger, sought and won damages for personal injuries. He had taken out legal expenses insurance, and at dispute was the recovery of the cost of that insurance. He had been unaware of having the insurance and had also paid out for after the event insurance. He sought to recover the costs of the legal expenses insurance. A challenge of a judge's award in costs only proceedings should only rarely succeed. In such questions, the danger of conflicts of interest between the various insurance companies is real, and had been provided for in the regulations. Solicitors should inspect the client's various policies to clarify what legal expenses insurance was available. The need to provide free choice of solicitors did not override common provisions for small cases referring such matters to insurance panel solicitors. In a case where a passenger sued his driver, it was not appropriate for his choice of solicitor to be determined by the defendant's insurers, and after the event legal expenses insurance was a proper and reasonable expense and should be recoverable.
Insurance Companies (Legal Expenses Insurance) Regulations 1990 - Conditional Fee Agreements Regulations 2000 - Civil Procedure Rules 44.12A
1 Cites

[ Bailii ]
 
Bensusan v Freedman [2001] EWHC 9001 (Costs)
20 Sep 2001
SCCo

Costs

[ Bailii ]

 
 Regina (Ecclestone) v Legal Aid Board; SCCO 5-Oct-2001 - [2001] EW Costs 8
 
E v Legal Aid Board [2001] EWHC 9009 (Costs)
5 Oct 2001
SCCO

Costs

[ Bailii ]
 
Snowden v Ministry of Defence [2002] EWHC 9014 (Costs)
10 Oct 2001
SCCO

Costs

1 Cites

[ Bailii ]
 
Snowden v Ministry of Defence [2001] EWCA Civ 1524
10 Oct 2001
CA

Costs, Legal Aid

Civil Legal Aid (General) Regulations 1989 109
1 Citers

[ Bailii ]
 
Bright v Bright [2001] EWCA Civ 1581
12 Oct 2001
CA
Thorpe LJ
Family, Costs

[ Bailii ]
 
Dibb and Clegg (A Firm) v Recover Ltd and Others [2001] EW Costs 10
12 Oct 2001
SCCO
Mr Justice Davis sitting with Assessors
Costs
CourtService This was an appeal against the decision of a Costs Judge given on 31 August 2000 on a preliminary issue raised in the course of a detailed assessment of the Claimant Solicitors’ bills delivered to the Defendants. The background to the matter is that the Claimant firm had been endeavouring to recover outstanding legal fees from the Defendants for whom the firm had acted in a substantial commercial dispute. The trial in the Queen’s Bench Division had been expected to last 10 days. On 20 October 1998 the Claimant entered into a Contentious Business Agreement ("CBA") with the two corporate Defendants and two of the individual Defendants (D4 and D5).
The CBA provided for payment of agreed fees by agreed instalments. The trial lasted 5 weeks. The Defendants succeeded in their defence and were awarded their costs on the indemnity basis but little if anything has been recovered from the Plaintiffs. The Defendants paid some but by no means all of the agreed costs to the Claimant firm. The Claimant pressed for payment. They served statutory demands and applied for a freezing order. In an affidavit sworn by D4 in July 1999 in support of an application to get aside the statutory demands D4 said that the CBA was unenforceable because it had been signed under pressure from the Claimant and that D4 and D5 were "putting in hand an application for the CBA to be set aside and for there to be a detailed assessment of the bills delivered".
In the event, the parties entered into a Consent Order in Tomlin form made by Steel J on 2 August 1999 under which the Claimant was to submit new bills and to withdraw the statutory demands. The Claimant was, under the Order, to submit the new bills for detailed assessment and the Defendants were to pay the assessed costs within 14 days of the completion of the assessment (less all sums previously paid - any dispute as to what those sums were was to be resolved by arbitration). The Claimant also agreed, in the Schedule, not to rely upon the CBA dated 20 October 1998 or any other CBA. As part of the Order D4 gave undertakings not to sell or lease certain property until after the completion of the detailed assessment or further order.
The Claimant served new bills on 6 August 1999 (‘the new bills’) which totalled about £444,000 whereas the old bills had totalled about £364,000.
On 28 September 1999 Steel J made another Consent Order which varied the undertakings given by D4 in the order of 2 August 1999 so as to add further properties to the security provided and which also amended that Order to include an order for the detailed assessment of the new bills and lay down a procedural timetable for that detailed assessment. On 30 November 1999 the Claimant served a breakdown of the new bills and on 28 February 2000 the Defendants served Points of Dispute in which it was contended that the new bills should be subject to a "cap" being the sum the Defendants had agreed to pay under the CBA.
At the hearing on 31 August 2000, D4 (who was by this time acting in person) asked the Costs judge (through the Costs draftsman who had been permitted to speak on her behalf) to make a declaration that the Claimant was bound by the CBA whereas the Defendants were not because the Defendants had not agreed not to rely on the CBA and it had not been expressly set aside. The Costs judge held that the Defendants were unable to rely on the CBA and that accordingly the detailed assessment must proceed. When the detailed assessment had been completed the new bills had been reduced from about £444,000 to about £423,000. It had been established (in arbitration proceedings pursuant to the Order of 2 August 1999) that the Defendants had paid nearly £200,000 and so some £223,000 (plus some further sums) remained payable to the Claimant.
D4 and D5 lodged Notice of Appeal against the decision of the Costs judge that the Defendants were not entitled to invoke the CBA. Permission was given for the appeal by Eady J on 21 February 2001. The Notice of Appeal says that the Costs judge was wrong to hold that the Appellants could not rely on the CBA and that he ought to have held that the Order of Steel J only prevented the Claimant from relying on it.
By the time the appeal came on for hearing on 12 October 2001, D4 had been adjudged bankrupt and so the only remaining Appellant was D5. Mr Fortune, Counsel for D5, submitted that the Orders of Steel J had to be construed objectively and he drew attention to the Schedule to the Order of 2 August 1999 where the Claimant agreed that the CBA would not be relied on whereas the Defendants did not and there was no Order setting the CBA aside. He submitted that it was accordingly open to the Defendants to fall back on the CBA which contained a "capping" arrangement.
Mr Farber, the Claimant’s Counsel, submitted that one had to have regard to the factual matrix - including the affidavit sworn by D4 in July 1999 where she contended that the CBA should be set aside. It was plain, he submitted, that the intention of the parties was that the CBA should be set aside and that there should be a detailed assessment. Indeed he contended that there could not be an Order for a detailed assessment if the CBA was not set aside.
Referring to Sections 59-63 of the Solicitors Act 1974, the learned judge said that the overall scheme of the legislation was, in the ordinary way, to remove costs which were subject to a contentious business agreement from the process of detailed assessment, but in so doing to enable justice to be done. On the facts of this case it was plain that both sides were abandoning the CBA and had decided to go down the detailed assessment route. Indeed, the Order of 2 August 1999 provided for the preparation of new bills and for them to be paid within 14 days of assessment. That was reinforced by the fact that the Solicitors served new bills and there was an order (i.e. the Order of 28 September 1999) for the detailed assessment of those bills. It was difficult to see how Steel J could have made that Order if there was still a live CBA. The Defendants were not entitled to blow hot and cold. In any event (even if he was wrong about that) he would hold (agreeing with Mr Farber’s submission) that the Defendants were estopped from raising the point or were deemed to have waived it in view of the large sums of money which the Claimant had already expended in the detailed assessment before the Defendants first raised it in their Points of Dispute. The costs judge had been right.
The appeal was dismissed and the 5th Defendant was ordered to pay the Claimant’s Costs which the judge summarily assessed.

 
Dibb and Clegg (A Firm) v Recover Ltd and others [2001] EWHC 9011 (Costs)
12 Oct 2001
SCCO

Costs

[ Bailii ]
 
Walton v Gardner and Another [2001] EWCA Civ 1788
15 Oct 2001
CA

Costs

[ Bailii ]
 
Argonaut Property Development Ltd v Collyer-Bristow (A Firm) [2001] EW Costs 9; [2001] EWHC 9010 (Costs)
16 Oct 2001
SCCO

Costs
CourtService The Claimant company, registered in the Isle of Man and acting throughout by their London agent Miss T, instructed the Defendant Solicitors in connection with proceedings brought against the Claimants by former tenants of property they owned in Clerkenwell. In total five bills were rendered by the Defendant to the Claimant, totalling £7,425.61, including disbursements and VAT. Four of those bills were paid, but the fifth was not paid, and the Claimants succeeded in obtaining an order for detailed assessment thereof. That detailed assessment was conducted by a Deputy Costs Judge. After the principal persons concerned had given oral evidence before her, and been cross examined thereon, she found as a fact that Miss T had stipulated that the work should be handled by the Defendants by a solicitor, and in fact it had been handled by a Mr P, who was a legal executive. Accordingly, the Deputy Costs Judge assessed the Defendants final bill at nil, and directed the Defendants to repay the amount of the earlier bills, following the case of Pilbrow v Peerless De Rougemont. Then, late in the day, there was argument as to the quantum of the Claimants costs, they being represented on that occasion by a costs draftsman instructed by another firm of solicitors. It was ultimately agreed that as final figures were not available these would be submitted by the solicitors concerned, commented on by the Defendants, and that the Costs Judge would then make a decision on costs without the necessity for either party to attend before her again.
The Claimant’s schedule included claims for interest on the monies paid by the Claimants to the Defendants, but ordered to be repaid, together with claims for costs, both in respect of the period when the solicitors were on the record for the Claimant, and also an earlier period where Miss T acted on their behalf.
The Deputy Costs Judge disallowed claims for interest, on the basis that they had not been claimed in the original proceedings, and made certain other reductions in the claim endorsing her brief reasons onto a copy of the Claimant’s schedule, which had been submitted to her, and after of course taking into account the Defendants representations.
The Claimants still acted through Miss T, obtained permission to appeal on what it became common ground was the basis of unintentionally misleading information put before the Judge. Permission to appeal was granted in respect of the failure to allow interest, and the reduction in costs by the disallowance of litigant in person costs.
The Judge on this appeal held that had the true facts been placed before the Judge who granted permission he would never have done so, and even the amended grounds of appeal suggested by Mr Webb, who again represented the Claimants on the appeal, could not save the appeal, which had therefore to be dismissed.
Although that was sufficient to dispose of the appeal, and everything else that the Judge said was strictly obiter, his findings on the question of interest merit report. Interest was claimed on one of four alternative bases: (a) Section 35(A) of the Supreme Court Act; (b) the general equitable jurisdiction of the courts; (c) Section 66(a) of the Solicitors Act 1974; and (d) Regulation 24 of the 1991 Solicitors Accounts Rules, or Regulation 25 of the 1998 Rules (it was not entirely clear which governed, but the wording is virtually the same).
The Judge held that Section 35(A) could not apply, because this was not a claim for a debt or damages. So far as the equitable jurisdiction of the court was concerned the Judge held on the basis of the very old case of Wright v Southwood, decided in 1827, that no such claim was permissible in the circumstances of this case. So far as Section 66(a) Solicitor Act 1974 is concerned the Judge held that money was not "improperly retained" by the solicitor where all that the solicitor did was to retain money paid for bills pending the decision of the Costs Judge as to whether or not those bills were payable in full or in part. Finally, so far as the Solicitor Accounts Rules were concerned, the Judge held firstly that they only applied to money held in client account, and the evidence was that the monies paid by the company went straight into office account, because they were in settlement of bills. In any event however the Judge held that the Defendants terms of business, which expressly excluded the right of the claimant to interest, survived, because the contract was not, as suggested by Mr Webb, void ab initio.
The Judge disposed of the question of the additional costs claimed on the basis that the decision of the Costs Judge was well within the margin of permissible error, and should not be interfered with.
The Judged awarded costs to the Defendants of £4,500, but refused their application to join Miss T as a party, and to make an order for costs against her on the basis that it was her misrepresentations which caused all the expense of the appeal to be incurred.
[ Bailii ]
 
Antonelli v Allen and Another [2001] EWCA Civ 1563
16 Oct 2001
CA

Costs
Application for security for costs of an appeal.
1 Cites

[ Bailii ]
 
BT3G Ltd and Others, Regina (on the Application of) v Secretary of State for Trade and Industry [2001] EWCA Civ 1539
17 Oct 2001
CA

Costs

[ Bailii ]
 
Brown v Edwards [2001] EWCA Civ 1617
18 Oct 2001
CA
Sedley LJ
Costs

[ Bailii ]
 
Bradford Metropolitan District Council v Yorkshire Water Services Ltd [2001] EWHC Admin 803
19 Oct 2001
Admn

Costs, Local Government
After a finding in favour of the respondents, the applicants sought to argue that they should not be ordered to pay the costs, since they had been following a statutory duty in bringing the claim. They had made an administrative decision acting honestly, properly and on grounds that reasonably appeared to be sound, in the exercise of its public duty. Held: Whether the council could seek assistance from some other party for clarifying an obscure point of law was not for the court. They had lost their case and should pay the other party's costs.
[ Bailii ]
 
Martin v Holland and Barratt Ltd [2001] EWHC 9012 (Costs)
19 Oct 2001
SCCO

Costs

[ Bailii ]
 
Martin v Holland and Barratt Ltd [2001] EW Costs 11
19 Oct 2001
SCCO
Mr Justice Holland sitting with Assessors
Costs
CourtService On the 16th January 1995 the claimant was sitting in a folding chair, working at a computer screen. The chair collapsed. He fell back against the wall injuring his neck and back. On 6th August 1997 Judgment was entered by consent with damages to be assessed. Certain payments into court were made eg £5,4730.79 on 19th March 1998. Counsel advised in conference on 6th April 1998 and settled the Schedule of Damages on 27th May 1998. He claimed £435.00 and £440.00 respectively and was allowed £350.00 on each occasion. On Wednesday 6th October 1998 there was a further payment into court of £21,965.35. The total offer then stood at about £100,000. The trial had been fixed for Wednesday 28th October 1998 for 3 days. On 14th October 1998 there was a conference with the client to advise on the payment into court.
On 15th October 1998 the brief to counsel was prepared and reached counsel the next day. The claimant’s solicitor also wrote to the defendant’s solicitor referring to their claim for some £200,000 (including general damages). The claimant was prepared to settle for £120,000 plus costs. They requested a response within 7 days. At this stage both sides raised issues on discovery and additional documents to go into the trial bundle.
On Friday 16th October the solicitors reached agreement and a draft order was sent to the defendant’s solicitors.The letter confirming the position was sent on the Monday.
The appeal proceeded on the basis that it was necessary to show that the District Judge exceeded the generous ambit within which a reasonable disagreement was possible. The judgement of Buckley J in Mealing MacLeod –v- The Common Professional Examination Board (Costs Law Report 2000 part 2 at page 224) was relevant.
The appeal concerned two issues raised by the defendant.
(a) Whether the brief fee of counsel claimed at £3,500 + VAT and allowed at £2000 + VAT was reasonable
(b) Whether the fee to the Orthopaedic surgeon claimed at £1,500 and allowed at £1,000 was reasonable.
Counsel’s Fees
Counsel’s fee sheet stated that Counsel was fully prepared. It appeared that the District Judge accepted that statement. She therefore allowed £2,350.00 + VAT for the conference on 14th October and the brief. The Judge and the assessors agreed that a brief fee at £3,500.00 was reasonable if the case had proceeded. Given the proximity of the conference on 14th October and the delivery of the brief on 15th October with the settlement the following day, the court reached the conclusion that the brief fee allowed by the District Juge was too high. It exceeded the generous ambit within which reasonable disagreement was possible. The conference should be treated as the conference on the brief. A reasonable discounted brief fee to include the conference and to reflect the early settlement should be £1,500 + VAT. Accordingly a brief fee at £1,150.00 should be allowed.
The Expert’s Fee
The expert’s terms of retainer were that his daily fee would be £1,500. per day. If the case settled more than a month before the trial the fee would be half. Inadvertently the claimant’s solicitor misinformed the defendant’s solicitor that the cancellation fee would be one half if the case settled less than a month before the hearing. The court had no hesitation in upholding the District Judge’s award of £1,000. The judge stressed the importance of good experts being able to make themselves available and to commit themselves to attend court. The expert had written to explain that he has already put in five hours of preparation before being notified of the cancellation. The date for the hearing had been specifically reserved. He explained that he had not been able to reschedule meaningful work for that day. He would have been paid about £2,500 for hip and knee operations.
The judge made no order as to costs except that the defendant paid the barrister assessors costs at £350 inclusive of VAT.
The judge’s comments on the expert’s cancellation fee reflects the judgement of Bingham J (as he then was) in Reynolds v Meston (unreported) 24th February 1986 – see also Butterworths Costs B283.

 
IBC Vehicles Ltd v Higgs [2001] EWCA Civ 1650
24 Oct 2001
CA

Costs

[ Bailii ]
 
K. Zaman Ali and Co v The Lord Chancellor [2001] EWHC 9013 (Costs)
26 Oct 2001
SCCO

Costs

[ Bailii ]
 
K Zaman Ali and Co v The Lord Chancellor; (Regina v Zaka) [2001] EW Costs 12
26 Oct 2001
SCCO
Mr Justice Butterfield sitting without Assessors
Costs, Legal Aid
This was a criminal appeal by solicitors who had submitted their bill of costs in which work was claimed at prescribed legal aid rates for grade A fee earner level, which was however accompanied by a letter, which started with the following paragraphs:
"We are grateful for the kind extension of time granted to submit our bill of costs with the further extension allowing us to send our papers by DX on Monday 22 instant.
Enhancement is respectfully claimed in this case for the following reasons ..."
No percentage enhancement however is actually mentioned in either this letter, or of course in the bill.
The Determining Officer refused to allow any enhancement, holding that what he had to consider was the bill and that any accompanying letter was a supporting document not to be read as part of the bill.
The Costs Judge affirmed the decision of the Determining Officer, but granted a certificate to allow the matter to proceed to a final appeal in the High Court.
On the facts the Judge decided the appeal against the solicitors, but he did lay down some general principles to be followed in future cases to ensure that decisions of Determining Officers were not "Wednesbury unreasonable".
He apparently suggested that the Determining Officer could, in a situation such as arose here, either refer the whole bill back to the solicitors to make a proper claim to include enhancement; he could deal with it as if enhancement had been claimed; or he could make reasonable enquiries.
What seems to have been fatal to the solicitors’ appeal in this case is that they neither claimed enhancement in the bill itself, nor did they specify in the accompanying letter what rate of enhancement they were seeking. However in the light of the Judge’s comments summarised above it seems unlikely that this situation will recur.
The Judge made no order as to the costs of the appeal, although the Lord Chancellor’s Department was represented by counsel.

 
Bennett v Customs and Excise [2001] EWCA Civ 1727
7 Nov 2001
CA

Costs

[ Bailii ]
 
Adams v MacInnes [2001] EW Costs 13; [2001] EWHC 9014 (Costs)
8 Nov 2001
SCCO
Mr Justice Gray sitting with Assessors
Costs
CourtService In this case Mr MacInnes, who was the Second Defendant, was ordered to pay the costs of proceedings for possession brought by Mr Adams. Although the case commenced as a straightforward possession action it developed into a far more complex piece of litigation. The inter partes bill was brought in at £194,139 after detailed assessment was reduced somewhat, particularly because the Master reduced the claim for uplift of 80% to 65%.
The Defendant appealed, claiming a breach of the indemnity principle and a champertous agreement between the Claimant and his solicitors. He sought to have the whole of the inter partes bill set aside on the basis that the agreement between the Claimant and his solicitors was unlawful and unenforceable.
The evidence was that in 1990 the solicitors had sent a client care letter to the Claimant setting out their terms of business and asking him to sign and return a copy of the letter. No copy of that letter survives, although there was evidence which proved conclusively that it had been sent and that the Claimant had received it. There was however no evidence that he agreed to the terms of the letter. The solicitors delivered to the Claimant periodic bills setting out the work they had done during the preceding period. The Claimant paid those bills. In August 1994 the solicitors sent a further client care letter, a copy of which was produced, setting out their terms of business and stating in terms that they would apply an uplift for care and conduct but probably not until the end of the action when they could decide what mark-up was merited. The solicitors continued to send periodic bills but it was not until May 1996 that the bills changed in format and bore a prominent message to the effect that that the bill was an interim bill. The defendants case was that the 1994 letter was evidence of a sham agreement between the Claimant solicitors and the Claimant and that had the Claimant lost he would have been charged the basic rate without uplift but that when he won the solicitors applied the maximum uplift they thought they could recover.
There was evidence that the Claimant had paid all the bills totalling £196,725. The bills which had been delivered to the Claimant until May 1996 were drawn in a way which made them look like final bills. They set out exactly what work had been done, the rate being charged and the period covered by the bill and each carried a notice informing the client of his rights to detailed assessment under the Solicitors Act.
At the hearing it became apparent that the Defendant had not seen the client care letter or any of the interim bills. Mr Hutton who appeared for the Claimant asserted that they were privileged and that whilst the Claimant had no objection to producing the documents to the court they should not be disclosed to the Defendant. Mr Justice Gray indicated that he thought this was most unsatisfactory and could constitute a breach of Article 6 ECHR and offended against the principle of equality of arms. Having taken instructions Mr Hutton accepted that the Defendant should have sight of the documents in issue. When giving judgment Mr Justice Gray indicated that he thought it should be standard practice where a client care letter was affirmatively relied on that it was produced to the paying party. He felt this should become standard practice.
On the facts of the case the Judge found that notwithstanding an affidavit by the solicitor setting out their practice in 1990 (which was not challenged on cross examination) the bills delivered by the solicitors were in such form as to raise serious doubts as to the accuracy of the solicitors’ assertion. In those circumstances the Judge found that the Master was wrong to accept the solicitors evidence and amended the Master’s certificate to disallow all care and conduct until August 1994.
The Defendant was allowed one quarter of his costs of appeal on the basis that although he had succeeded on the uplift point he had failed on his main thrust of champerty and illegality and had also failed in respect of the bills delivered after August 1994.
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Manches and Co (a Firm) v Michael Joseph [2001] EWHC QB 448
9 Nov 2001
QBD
Mr Justice Eady
Legal Professions, Costs
The claimant firm of solicitors sought their costs of representing the defendant in defamation proceedings. He was unhappy with the way the proceedings had been conducted, suggesting that an excess amount of work had been undertaken. Held: The claim was unsustainable in law. There was clear evidence contrary to the defendant's allegations, there was no suggestion of professional negligence or misconduct, and the defendant had been made aware throughout of the risks and costs.
[ Bailii ]
 
DJ and C Withers (Farms) Ltd v Ambic Equipment Ltd [2001] EWCA Civ 1776
13 Nov 2001
CA

Costs

[ Bailii ]
 
AP (UK) Ltd v West Midlands Fire and Civil Defence Authority [2001] EWCA Civ 1917
16 Nov 2001
CA

Costs, Litigation Practice
Whether, if it is right to require a claimant to put up security for the costs of an action, it may be appropriate that the security given should be by way of a charge on the claimants' own property in favour of the defendant and, if so, in what circumstances.
[ Bailii ]
 
Brown and Another v Bennett and Others (No 2) Times, 21 November 2001; Gazette, 10 January 2002
16 Nov 2001
ChD
Justice Neuberger
Legal Professions, Costs, Litigation Practice
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.
Supreme Court Act 1981 51
1 Cites

1 Citers


 
Summit Property Ltd v Pitmans (A Firm) [2002] EWHC 9017 (Costs)
18 Nov 2001
SCCO

Costs

[ Bailii ]
 
Summit Property Ltd v Pitmans [2001] EWCA Civ 2020
19 Nov 2001
CA
Chadwick LJ
Costs
Whilst surprising, it was possible that a successful claimant could be ordered to pay the majority of a defendant's costs. Under the Civil Procedure rules, it was proper to order costs on an issue by issue basis.
1 Citers


 
Summit Property Ltd. v Pitmans (A Firm) [2002] CPLR 97; [2001] EWCA Civ 2020
19 Nov 2001
CA
Chadwick, Tuckey, Longmore LJJ
Costs

[ Bailii ]
 
Union Discount Company Ltd v Robert Zoller and Others, Union Cal Ltd Times, 10 December 2001; Gazette, 17 January 2002; [2001] EWCA Civ 1755; [2002] 1 WLR 1517; [2002] CLC 314; [2002] 1 All ER 693
21 Nov 2001
CA
Lord Phillips MR, Lord Justice Schiemann, And, Lord Justice May
Jurisdiction, Costs, Damages
The claimant had incurred costs in defending an action brought by the respondents in breach of an exclusive jurisdiction agreement. They appealed a judgement against them. Held: The claim for the costs must succeed. The jurisdiction in which the claim had been brought was one which did not award costs save exceptionally. That rule did not apply in the jurisdiction agreed for, and the claim would put the claimant in the position he would have been in had the other followed the contract.
1 Cites

1 Citers

[ Bailii ]
 
Bryne v South Sefton Health Authority [2001] EWCA Civ 1904; [2002] 1 WLR 775
22 Nov 2001
CA
Peter Gibson, Chadwick, Longmore LJJ
Costs
Solicitor's appeal from costs order made against them when they had ceased acting 2 years earlier.
[ Bailii ]
 
Byrne v Sefton Health Authority Times, 28 November 2001; Gazette, 04 January 2002
22 Nov 2001
CA
Lord Justice Peter Gibson, Lord Justice Chadwick and Lord Justice Longmore
Costs, Legal Professions
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 sought their lost costs against the firm. The true test was whether the behaviour complained of was a cause of the unnecessary incurring of costs. A 'but for' test was insufficient.
Supreme Court Act 1981 51(6)
1 Cites


 
Homes Assured Corporation Plc, Re the Official Receiver v Dobson and others [2001] EWHC 9016 (Costs)
28 Nov 2001
SCCO

Costs

[ Bailii ]
 
Re: Homes Assured Corporation Plc The Official Receiver v Dobson and Others; similar [2001] EW Costs 15
28 Nov 2001
SCCO
Mr Justice Park sitting with Assessors
Costs, Legal Aid
CourtService In these two related appeals heard together the learned Judge dealt with the appropriate penalty to apply when Regulation 109 of the Legal Aid (General) Regulations was invoked. In the first case there had been a delay of 4 years between the conclusion of the proceedings and the notice of commencement of the assessment proceedings, which the Deputy Costs Judge had held to be totally unreasonable, so that he allowed no profit costs whatsoever. The authorities were reviewed. A complete disallowance of the solicitors’ profit costs was not an appropriate remedy, bearing in mind that the Legal Services Commission had not suffered any prejudice, and indeed the only prejudice suffered might have been that of the claimants’ solicitors. The Judge did not feel it appropriate to lay down any rule in relation to such applications, but, on the facts of this case where the bill was some £30,000, he felt that a 30% deduction from the bill was appropriate. In the second case the Costs Judge had taken an adverse view of the claimants solicitors conduct, which the learned Judge did not consider to have been correct, but in that case he did not feel that he had sufficient information to come to a final decision, and therefore remitted the matter to the Costs Judge for reconsideration in the light of his judgment.

 
Doncaster Metropolitan Borough Council v Hancock [2001] EWCA Civ 1980
29 Nov 2001
CA

Costs
Application for leave to appeal.
[ Bailii ]
 
MCA Records Inc v Charly Records Ltd and others (No 5) [2001] EWCA Civ 1923; [2003] 1 BCLC 93; [2002] EMLR 1
29 Nov 2001
CA
Chadwick LJ
Intellectual Property, Costs
Thre had been an action for copyright and trade mark infringement. The court considered the personal liability of directors of the company for the costs of the action.
1 Cites

1 Citers

[ Bailii ]
 
Morris v Wiltshire and Woodspring District Council (No.2) [2001] EWHC 9015 (Costs)
30 Nov 2001
SCCO

Costs

[ Bailii ]
 
Morris v Wiltshire and Woodspring District Council (No 2) [2001] EW Costs 14
30 Nov 2001
SCCO
Mr Justice Roderick Evans sitting with Assessors
Costs
Following the decision of Mr Justice Jacob in Morris v Wiltshire & Woodspring District Council (No.1) (Review Case No.3 of 1998) that it was permissible for a litigant in person to have leave to withdraw a bill and to amend it, the claimant, as he has now become, did that in this case. The matter had been referred to a Costs Judge, who, on 1 February 1999, assessed the claimant’s costs at £11,887. The defendant, having made previously unaccepted offers of £8,000 and £10,000 respectively, made a "final" offer on 16 February 1998 in the following terms:
"We now have our clients’ instructions to offer you in full settlement of your claim for costs in the amended bill the sum of £14,000. Against this [we] will of course offset the two amounts you have agreed to pay in respect of our clients’ costs on the two Chancery matters which remain struck out."
Following the Costs Judge’s decision to award £11,887, there was argument as to costs, the defendants successfully contending that the claimant had failed to beat their offer of £14,000, and should therefore pay their costs on the assessment of the amended bill, at least from the date of that payment in.
The claimant appealed, and in a detailed judgment the learned Judge decided two separate but important points.
Firstly, he held that the "old" rules, that is to say those contained in the RSC, governed this appeal, because it was the original taxation of 1996 that was still continuing, albeit under a revised bill, and therefore the claimant did not need permission to take the matter to review. However his Lordship held that even if that was wrong, on the facts he would have granted permission to appeal under CPR.
The second point which the Judge decided was that the letter quoted above did not include interest, and, following the decision of Mr Justice Vinelott in Bell v Mahoney [1991] 17 May, unreported, but quoted in Hoffman’s Civil Costs Cases Taxation Handbook, interest was not to be deemed to be included unless expressly referred to.
Applying the normal rules as to the incidence of interest the Judge concluded that, although the final figures were not before him, when the interest was added on the claimant would have beaten the payment in of £14,000, and accordingly the order of the Costs Judge that the claimant should pay the defendant’s costs of the assessment of the amended bill was reversed, which will doubtless involve yet further proceedings before the Costs Judge.

 
Singh v Law Society Times, 21 January 2002; Gazette, 21 February 2002
5 Dec 2001
QBD
Lord Justice Kennedy, Mrs Justice Hallet and Mr Justice Stanley Burnton
Legal Professions, Costs
Several partners in a solicitors practice may have been at fault, but only one partner had been brought before the tribunal. He appealed against an order making him solely responsible for the costs. Held: There was nothing necessarily wrong with such an order.
Solicitors Act 1974 47(2)(i) - Solicitors (Disciplinary Proceedings) Rules 1994 (1994 No 288) 22

 
Donnachie v Happit Limited and R and J Hopkins (Electrical) Limited [2001] ScotCS 281
5 Dec 2001
SCS
Lord Johnston
Costs

[ Bailii ]
 
Budgen v Andrew Gardner Partnership (A Firm) [2001] EWCA Civ 1922
7 Dec 2001
CA
Buxton LJ
Costs
Application for leave to appeal.
[ Bailii ]
 
Pharmacia Corporation and others v Merck and Co Inc and Another [2001] EWCA Civ 1957
14 Dec 2001
CA

Intellectual Property, Costs

[ Bailii ]
 
Slatter v Ronaldsons (A Firm) [2002] EWHC 9015 (Costs)
14 Dec 2001
SCCO

Costs

[ Bailii ]
 
Hammond Suddard, Solicitors v Agrichem International Holdings Limited [2001] EWCA Civ 191; [2001] EWCA Civ 1915; [2001] EWCA Civ 2065
18 Dec 2001
CA
Lord Justice Clarke, And, Mr Justice Wall
Costs, Legal Professions, Civil Procedure Rules
The appellant sought staying the order for him to pay costs pending the results of an appeal, and the respondent sought security for costs in fighting the appeal, and a striking out in default of payment, and for security for payment of the judgement debt. The applicant company is a limited liability company registered in the Virgin Islands and without assets within the jurisdiction. The solicitors had claimed for their costs in representing the claimant, and the claimant wished to counterclaim asserting professional negligence. The appellant filed papers showing the company's dire financial condition, but the court considered it inadequate. Held: There was no risk of the appeal being stifled by the costs being paid. An order for security for costs was appropriate in the light of the applicant's failure to disclose detailed assets. Here, leave to appeal had been refused, then granted by a single Lord Justice, and where compelling reason existed, the court could impose conditions on the appeal going ahead. The difficulty of enforcing any award, and failure of the claimant to give full disclosure, was such a compelling reason, and the court should exercise its discretion in ordering security for the judgement debt appealed against. The decision may have been different if the court had concluded that the appeal might be stifled. When considering a stay, the court should ask i) what were the risks of the appeal being stifled if a stay was refused, and ii) if a stay was granted, but the appeal failed, would the respondent be able to enfoiorce the judgment, and iii) if the stay were refused and the appeal succeeded, but the order enforced in the interim what prejudice would attach to the appellants.
Civil Procedure Rules 25.13(2)(b), 25.15(1), 52.9(1)(c)
1 Citers

[ Bailii ] - [ Bailii ]

 
 Gwembe Valley Development Co Ltd (in Receivership) v Koshy and Others (No 4); ChD 18-Dec-2001 - Times, 28 February 2002

 
 Totalise Plc v The Motley Fool Limited and Interative Investor Limited (2); CA 19-Dec-2001 - Times, 10 January 2002; Gazette, 27 February 2002; [2001] EWCA Civ 1897; [2002] 1 WLR 2450; [2002] EMLR 358; [2003] 2 All ER 872; [2002] FSR 50; [2002] CP Rep 22; [2002] EMLR 20; [2002] 1 WLR 1233; [2002] Masons CLR 3
 
Regina (on the Application of James) v Joint Disciplinary Scheme [2001] EWHC Admin 1068
20 Dec 2001
Admn
Justice Stanley Burnton
Costs
The applicant had paid a sum into court by way of costs to allow him to appeal the decision. That appeal was denied, and he turned instead to the European Court of Human Rights. The defendant applied for the sum to be paid out, and the applicant that it be left in court pending the application to the European Court. Held: The money had been paid in expressly pending the determination of the Court of Appeal. That had been paid out, and there remained no reason for the defendant to be kept out of his costs.
[ Bailii ]
 
Dardana Ltd v Yukos Oil Company Times, 04 February 2002
21 Dec 2001
QBD
Chambers J
International, Costs, Arbitration
The defendant sought to challenge the enforcement here of a foreign arbitration award. It sought security for costs. Held: The action was not a challenge to the award itself, but rather to challenge an attempt to enforce it in England. The challenge was therefore in its nature defensive, and accordingly the courts did have power to require security for costs against the claimant.
Practice Direction: Arbitrations (Civil Procedure volume 2, paragraph 2B-1) 31.3 - Arbitration Act 1996 103
1 Cites

1 Citers


 
Moore's (Wallisdown) Ltd v Pensions Ombudsman and Another; Royal and Sun Alliance Life and Pensions Ltd v Same Times, 01 March 2002
21 Dec 2001
ChD
Ferris J
Costs, Administrative
The applicants had successfully appealed against decisions of the Pensions Ombudsman. They sought their costs. The Ombudsman argued that the costs should be limited to the proportion by which they had in fact contributed to the need for an appeal. Held: The Ombudsman was no different to any other tribunal which itself became party to a case, and a costs order could be made against them. Here, the Ombudsman's and Trustee's cases were not distinguishable, and there should not have been separate representation. Though the Ombudsman should pay all the costs of the applicants, no order was made for the costs of the trustees.
1 Cites


 
Dickinson v Rushmer [2002] 1 Costs LR 98; [2001] EW Costs 17; [2001] EWHC 9018 (Costs)
21 Dec 2001
SCCO
Mr Justice Rimer sitting with Assessors
Costs, Legal Professions
CourtService After strenuously contested proceedings in the County Court for an account the claimant recovered some £18,000, and subsequently submitted a bill for £86,000 odd. The indemnity principle was raised before a Deputy Costs Judge who then asked to see the client care letter, the bill of costs sent to the client and the calculations of payments made thereunder, but refused to show these documents to the paying party, holding that he was satisfied that there had been no breach of the indemnity principle after considering the documents, and then proceeded with the assessment, which resulted in some, but only modest, reductions in the figure claimed. The defendant appealed, contending that he should have been permitted to see the documents shown to the Costs Judge.
In this case, in contrast with the case of South Coast Shipping (No.15 of 2001), the learned Judge felt able to decide the issue purely on careful analysis of the English authorities, without reference to the European legislation or authorities, though they were cited to him.
The gist of the Judge’s decision allowing the appeal is in paragraph 33 of his judgment, which reads:
"In my view, the procedure adopted by the costs judge was unfair. I can in any event see no good reason why the client care letter and the payment calculations could not have been disclosed to the defendant, since I have not been persuaded that they were privileged. But if anything in them might have been regarded as privileged, one course which might at least have been considered was the redaction from them of the privileged parts, a course which could or might also have been considered in relation to Wakefields’ bills. Ultimately, however, this was a simple situation in which the claimant chose to prove his version of a disputed issue of fact by reference to certain documents. In my view, the basic principle is that, if he wanted to do so, fairness required him also to disclose the documents to the defendant."
The learned Judge earlier held that in his opinion the bill to the client was, on the basis of the judgment of Sir G J Turner V-C in Chant v Brown [1852] 9 HARE 790, privileged from production.
1 Cites

1 Citers

[ Bailii ]
 
South Coast Shipping v Havant Borough Council [2002] 3 All ER 779; [2001] EW Costs 16; [2001] EWHC 9017 (Costs)
21 Dec 2001

Mr Justice Pumfrey sitting with Assessors
Costs, Human Rights
With respect to privileged material produced to the Costs Judge, once a document is of sufficient importance to be taken into account in arriving at a conclusion as to recoverability, then, unless otherwise agreed, it must be shown to the paying party or the receiving party must content himself with other evidence. If the costs judge has seen documents and required the receiving party to elect between giving secondary evidence of the retainer and waiving the privilege, there was no incompatibility with the Convention. This does not mean the costs judge may put the receiving party to its election for every document, regardless of relevance. The paying party may be content to agree that the costs judge alone should see the privileged documents. Only where it is necessary and proportionate should the receiving party be put to his election. The redaction and production of privileged documents, or the adducing of further evidence, will lead to additional delay and increased costs.
CourtService The court considered the impact on detailed assessment proceedings of the European Convention on Human Rights, with particular relevance to the disclosure to the paying party of sensitive material relating to their bill of costs to which privilege attached. The European cases did not override the longstanding principle of privilege in English law, but the principle that a court should not decide issues after hearing and seeing only one side of the argument was a very powerful one. He indicated that much greater use should be made of Costs Judges and District Judges of paragraph 40.14 of the Costs Practice Direction in relation to the putting of receiving parties to their election as to how they proved particular issues of this nature.
However, on the facts, and because the Costs Judge from whom the appeal was brought had clearly considered all the relevant factors in coming to his decision that there had been no breach of the indemnity principle on the evidence available to him, the Judge dismissed the appeal, saying that to do otherwise would be to generate unfortunate and unnecessary satellite litigation.
1 Citers

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