The parties disputed the success of a sale by a mortgagee in possession of various properties. The parties disputed the apportionment of costs.
Held: The appeal failed. Where there is no express agreement concerning the division of costs, a general rule of thumb is to divide them equally between the relevant parties. But that is only a general rule and is not to be allowed to produce injustice. Where costs can be shown to be attributable to one party rather than another, the liability falls only on that party. And where the real contest is between one party A and another party B, injustice could arise if that were not recognised in the way in which the costs of B and other parties employing the same solicitor are apportioned. The judge in this case had made a factual determination in favour of an equal apportionment.
The court considered the proper approach to the costs when calling a solicitor to give evidence as a witness of fact. Warren J set out the three tasks of a solicitor who was also a witness as: (a) assistance and general preparation on the case as a solicitor, (b) producing the witness statement, and (c) cost of attendance at court. The costs incurred in relation to (a) and (c) are, in principle allowable. He continued: ‘As to (b), the position is more complex. There are, at least in theory, two components of the work involved in producing the witness statement. This can be illustrated by considering the position had Mr Hawkins not been involved, in his capacity as a practising solicitor, in preparing the witness statement but had, instead, been treated in the same way by the legal team as any other witness of fact. In that case, Mr Hawkins would have needed to spend time and effort (including, possibly, being proofed) in producing for the legal team the material for them to turn into the witness statement. The cost attributable to first component, the work done by Mr Hawkins, would not be allowable (any more than it would be allowable in the case of any other witness of fact); the cost attributable to the second component, the work done by the legal team, would be allowable.’
 EWHC 2635 (Ch)
England and Wales
See Also – Meretz Investments Nv and Another v ACP Ltd and others ChD 30-Jan-2006
The applicant challenged the exercise of a power of sale under a mortgage, saying that the mortgagee’s purposes included purposes not those under the mortgage. The parties had been involved in an attempted development of a penthouse.
Held: The . .
Cited – Ellingsen v Det Skandinaviske Compani CA 1919
The court considered an apportionment of the legal costs as between the parties.
Held: On the authorities, each client was only liable to the solicitors for half of the costs of the joint items of defence and the whole of any separate items of . .
Cited – Adams v London Improved Motor Coach Builders Ltd CA 1921
The plaintiff successfully sued his employers for wrongful dismissal. The defendant argued it should not pay costs since it was the plaintiff’s union who had retained the solicitors in the case, and it was the union to which the solicitors looked . .
Cited – Dyson Technology Ltd v Strutt ChD 24-Jul-2007
Cited – Russell Young and Co (A Firm) v Brown and others CA 31-Jan-2007
The court was asked to consider the liability of a tortfeasor to a claimant for a share of those costs which have been incurred by the claimant’s solicitor in investigating and settling a large number of claims of a similar nature, and which have . .
Cited – Korner v Korner and Co CA 1951
It was submitted by the receiving parties (being 7 out of 8 defendants) that they should receive an equal portion of the total costs of the defendants by number, that is to say 7/8ths. The taxing master disagreed, permitting each defendant 7/8ths of . .
Cited – Regina v Miller and Glennie; Miller v- Glennie 1983
The question was whether or not the litigants had incurred liability for costs in cases in which they had been supported by their employer.
Held: Where the solicitor is on the record for the client in the litigation, there is a rebuttable . .
See Also – Meretz Investments Nv v ACP Ltd QBD 27-May-2002
Meretz sued ACP for monies alleged to be due under agreements. . .
Cited – Rogers v Merthyr Tydfil County Borough Council CA 31-Jul-2006
The Court considered the validity of after the event legal expenses insurance and conditional fee agreements schemes, and in particular whether an ATE premium was recoverable by a successful claimant. The damages had been agreed in the sum of pounds . .
Cited – Kris Motor Spares Ltd v Fox Williams Llp QBD 12-May-2010
The claimant sought to challenge the After the Event Insurance (ATE) bought by its solicitors late in the day in their claim, before then withdrawing the conditional fee agreement. The premium was over andpound;90,000.
Held: The appeal failed. . .
Appeal from – Meretz Investments Nv and Another v ACP Ltd and others CA 11-Dec-2007
The claimant alleged that when exercising its power of sale under a mortgage over its land, the mortgagee had done so in order to override the claimant’s intention of granting a sub-lease, and that this was a tortious intention to induce a breach of . .
Lists of cited by and citing cases may be incomplete.
Land, Costs, Legal Professions
Updated: 07 February 2022; Ref: scu.261306