Tag: Costs

Hemming Mp v Birmingham City Council: Admn 11 Mar 2015

The claimant, a local MP had brought proceedigs in the magistrates court against the authority in respect of its alleged failure to control litter. He appealed by case stated against an order that he pay the authority’s costs of defending the action, amd now challenged the cae as stated saying that it was inadeuate.
Held: The challenge failed.

[2015] EWHC 1472 (Admin)
Bailii

Magistrates, Costs

Updated: 02 January 2022; Ref: scu.550013

The Sunday Times v The United Kingdom (No 1): ECHR 6 Nov 1980

The Court had held, inter alia, that there had been a breach of Article 10 by reason of an injunction granted against Times Newspapers Limited in accordance with the English law of contempt of court but no breach of Article 14 (art. 14).
During the proceedings on the merits, the applicants, without quantifying their claim, had requested the Court to declare, in application of Article 50, that the Government of the United Kingdom should pay the costs and expenses which they, the applicants, had incurred in connection with the contempt litigation in the English courts and the proceedings before the Commission and the Court.
Held: By thirteen votes to three that the United Kingdom was to pay to the applicants, in respect of costs and expenses incurred in connection with the proceedings before the Commission and the Court, the sum of twenty-two thousand six hundred and twenty-six pounds sterling and seventy-eight pence, but rejects unanimously the remainder of the claim for just satisfaction.
The requirement of foreseeability was summarised by the court as follows: ‘A norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.’

Mr. G. BALLADORE PALLIERI, P
[1980] ECHR 6, (1981) 3 EHRR 317
Bailii
European Convention on Human Rights 50
Human Rights
Citing:
See Also – The Sunday Times (No 1) v The United Kingdom ECHR 26-Apr-1979
Offence must be ;in accordance with law’
The court considered the meaning of the need for an offence to be ‘in accordance with law.’ The applicants did not argue that the expression prescribed by law required legislation in every case, but contended that legislation was required only where . .

Cited by:
Cited – Gallagher for Judicial Review (NI) SC 30-Jan-2019
Disclosure of older minor offences to employers 48 . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Costs, Media

Updated: 02 January 2022; Ref: scu.564993

Mars Uk Ltd v Teknowledge Ltd (No 2): ChD 8 Jul 1999

Where a hearing had been in part successful for both parties an award of interim costs was appropriate, suitably reduced to be an amount reasonably payable in advance of formal assessment by taxation. A party who had sought to resolve the matter by negotiation should have that reflected in their favour when making the order.

Gazette 11-Aug-1999, Times 08-Jul-1999
England and Wales

Costs

Updated: 31 December 2021; Ref: scu.83423

Excalibur Ventures Llc v Texas Keystone Inc and Others: ComC 3 Feb 2015

Christopher Clarke LJ
[2015] EWHC 566 (Comm)
Bailii
England and Wales
Cited by:
Appeal from – Excalibur Ventures Llc v Texas Keystone Inc and Others CA 18-Nov-2016
Excalibur had entered into a conditional fee agreement with its solicitors to suport its intended claim against the respondents. Funders had advanced some andpound;13m to take the mater forward. . .

Lists of cited by and citing cases may be incomplete.

Costs

Updated: 28 December 2021; Ref: scu.543930

Oyston v The Royal Bank of Scotland Plc: SCCO 16 May 2006

The client and his solicitor had entered into a CFA in 2002 which provided for a success fee of 100% of reasonable costs, plus andpound;50,000 if the claimant recovered damages in excess of andpound;1m. This was a champertous agreement at common law which failed to comply with s 58 of the 1990 Act. In July 2005 the claimant obtained a costs order. He and his solicitors then entered into a Deed of Variation which omitted all reference to the andpound;50,000. Had the agreement been in this form from the outset it would have complied with s 58 and been enforceable.
Held: The Deed was ‘ineffective to rectify the situation as against the paying party . . Following the decision of the Privy Council in Kellar it cannot be right that a Deed of Variation can be used to impose a greater burden on the paying party than existed before judgment. The fact that the client is in agreement is of no assistance. If the position were otherwise it would be open to solicitors and their successful client to, for example, alter the level of success fee late in the day.’

Senior Costs Judge Hurst
[2006] EWHC 90053 (Costs)
Bailii, Gazette
Courts and Legal Services Act 1990 58
England and Wales
Citing:
Applied – Kellar v Williams PC 7-Feb-2000
PC (Turks and Caicos Islands) The parties disputed whether sums paid to the company had been by way of loan or as capital contributions which after payment of debts were distributable among the shareholders.
Cited by:
Cited – Radford and Another v Frade and Others QBD 8-Jul-2016
The court was asked as to the terms on which solicitors and Counsel were retained to act for the defendants. The appeals did not raise any issues concerning costs practice, and were by way of review of the Costs Judge’s rulings, and not by way of . .
Cited – Radford and Another v Frade and Others QBD 8-Jul-2016
The court was asked as to the terms on which solicitors and Counsel were retained to act for the defendants. The appeals did not raise any issues concerning costs practice, and were by way of review of the Costs Judge’s rulings, and not by way of . .

Lists of cited by and citing cases may be incomplete.

Costs, Legal Professions

Updated: 28 December 2021; Ref: scu.242321

Market and Opinion Research International Ltd v Revenue and Customs: UTTC 15 Jan 2015

COSTS – withdrawal of case by HMRC before FTT – claim for costs by appellant on basis that HMRC had acted unreasonably in defending or conducting the proceedings – rule 10(1)(b), Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 – whether FTT applied the correct legal test – whether the reasons for HMRC were not properly disclosed and FTT was led into error

[2015] UKUT 12 (TCC)
Bailii
England and Wales

Costs

Updated: 27 December 2021; Ref: scu.541530

European Commission v United Kingdom of Great Britain And Northern Ireland: ECJ 13 Feb 2014

ECJ Failure of a Member State to fulfil obligations – Public participation in decision-making and access to justice in environmental matters – Concept of ‘not prohibitively expensive’ judicial proceedings

R Silva de Lapuerta, P
[2014] EUECJ C-530/11, [2014] Env LR D2, [2014] 3 WLR 853, ECLI:EU:C:2014:67, [2014] 3 CMLR 6, [2014] WLR(D) 69
Bailii, WLRD
Directive 2003/35/EC
European
Citing:
Opinion – European Commission v United Kingdom of Great Britain And Northern Ireland ECJ 12-Sep-2013
ECJ Opinion – Aarhus Convention – Directive 2003/35/EC – Access to justice – Concept of ‘prohibitively expensive’ judicial procedures – Transposition . .
AT SC (1) – Edwards and Another, Regina (on The Application of) v Environment Agency and Others SC 15-Dec-2010
Clarification was sought of the costs principles applicable on an application to the House of Lords. The paying party said that it was a requirement of the 1998 Convention under which the application fell, that a remedy should not be available only . .
ECJ – Edwards v Environment Agency (No 2) ECJ 11-Apr-2013
ECJ Environment – Aarhus Convention – Directive 85/337/EEC – Directive 2003/35/EC – Article 10a – Directive 96/61/EC – Article 15a – Access to justice in environmental matters – Meaning of ‘not prohibitively . .
At SC (2) – Edwards and Another, Regina (on The Application of) v Environment Agency and Others (No 2) SC 11-Dec-2013
The court considered the consequences of a finding that the UK was in breach of the Aarhus Convention, as regards the ‘prohibitively expensive’ cost of proceedings. The Agency had given permission for the change of fuel for a cement works to . .

Lists of cited by and citing cases may be incomplete.

Costs, Environment

Updated: 24 December 2021; Ref: scu.540523

Edwards v Environment Agency (No 2): ECJ 11 Apr 2013

ECJ Environment – Aarhus Convention – Directive 85/337/EEC – Directive 2003/35/EC – Article 10a – Directive 96/61/EC – Article 15a – Access to justice in environmental matters – Meaning of ‘not prohibitively expensive’ judicial proceedings

L Bay Larsen, acting as P
[2013] EUECJ C-260/11, [2013] WLR(D) 136, [2013] 1 WLR 2914, [2013] 3 CMLR 18, [2014] All ER (EC) 207
Bailii
TFEU 267, Directive 85/337/EEC, Directive 2003/35/EC 10a, Directive 96/61/EC 15a
European
Citing:
Opinion – Edwards v Environment Agency ECJ 18-Oct-2012
ECJ (Opinion) Aarhus Convention – Directive 2003/35/EC – Directive 85/337/EEC – Assessment of the effects of projects on the environment – Directive 96/61/EC – Integrated pollution prevention and control – Access . .
At HL – Edwards, Regina (on the application of) v Environment Agency HL 16-Apr-2008
The applicants sought to challenge the grant of a permit by the defendant to a company to operate a cement works, saying that the environmental impact assessment was inadequate.
Held: The Agency had been justified in allowing the application . .
Reference – Edwards and Another, Regina (on The Application of) v Environment Agency and Others SC 15-Dec-2010
Clarification was sought of the costs principles applicable on an application to the House of Lords. The paying party said that it was a requirement of the 1998 Convention under which the application fell, that a remedy should not be available only . .
At SC (1) – Edwards and Another, Regina (on The Application of) v Environment Agency and Others SC 15-Dec-2010
Clarification was sought of the costs principles applicable on an application to the House of Lords. The paying party said that it was a requirement of the 1998 Convention under which the application fell, that a remedy should not be available only . .
ECJ – European Commission v United Kingdom of Great Britain And Northern Ireland ECJ 12-Sep-2013
ECJ Opinion – Aarhus Convention – Directive 2003/35/EC – Access to justice – Concept of ‘prohibitively expensive’ judicial procedures – Transposition . .

Cited by:
See Also – European Commission v United Kingdom of Great Britain And Northern Ireland ECJ 12-Sep-2013
ECJ Opinion – Aarhus Convention – Directive 2003/35/EC – Access to justice – Concept of ‘prohibitively expensive’ judicial procedures – Transposition . .
ECJ (Opinion) – Edwards and Another, Regina (on The Application of) v Environment Agency and Others (No 2) SC 11-Dec-2013
The court considered the consequences of a finding that the UK was in breach of the Aarhus Convention, as regards the ‘prohibitively expensive’ cost of proceedings. The Agency had given permission for the change of fuel for a cement works to . .
ECJ – European Commission v United Kingdom of Great Britain And Northern Ireland ECJ 13-Feb-2014
ECJ Failure of a Member State to fulfil obligations – Public participation in decision-making and access to justice in environmental matters – Concept of ‘not prohibitively expensive’ judicial proceedings . .

Lists of cited by and citing cases may be incomplete.

Environment, Costs

Updated: 24 December 2021; Ref: scu.540521

Times Newspapers Ltd v Flood: CA 4 Dec 2014

The newspaper appealed from the award of costs to the claimant who had succeeded in his claim of defamation.

Macur, Sharp LJJ, Sir Timothy Lloyd
[2014] EWCA Civ 1574
Bailii
England and Wales
Citing:
Appeal from – Flood v Times Newspapers Ltd QBD 19-Dec-2013
The claimant policeman alleged defamation in an article published by the defendant newspaper. The defendant advanced two substantive defences, a defence of public interest (Reynolds) privilege and justification. After protracted litigation, the . .

Cited by:
Appeal from – Times Newspapers Ltd and Others v Flood and Others SC 11-Apr-2017
Three newspaper publishers, having lost defamation cases, challenged the levels of costs awarded against them, saying that the levels infringed their own rights of free speech.
Held: Each of the three appeals was dismissed. . .

Lists of cited by and citing cases may be incomplete.

Defamation, Costs

Updated: 24 December 2021; Ref: scu.539588

GSM Export (UK) Ltd and Another v Revenue and Customs: UTTC 14 Oct 2014

PROCEDURE – application for an order for security for costs – CPR, rule 25 – whether reason to believe appellants will be unable to pay respondents’ costs if ordered to do so – significance of ATE insurance – whether just to make an order in all the circumstances of the case – weight to be attached to lateness of application

[2014] UKUT 457 (TCC), [2015] BPIR 47, [2015] STC 504
Bailii
Civil Procedure Rules 25
England and Wales

Costs, Civil Procedure Rules

Updated: 22 December 2021; Ref: scu.538013

Long v Value Properties Ltd and Another: ChD 30 Sep 2014

This appeal raises the following questions (i) whether a breach of the CPR has occurred here, (ii) if so, what is the applicable sanction, if any, for that breach, and (iii) whether relief from any such sanction should be granted.

Barling J
[2014] EWHC 2981 (Ch)
Bailii
Civil Procedure Rules 3.9
England and Wales

Costs, Litigation Practice

Updated: 21 December 2021; Ref: scu.537246

Mclaughlin and Harvey Limited and Openhydro Group Limited (Patent): IPO 30 May 2014

Costs, Entitlement – This was a Decision on costs following an earlier substantive Decision on entitlement in favour of the defendants. Although the claimant’s presentation of its case had suffered from some defects, the hearing officer declined to depart from the standard scale of costs. An award on the scale was made to the defendant.

Mr J Elbro
[2014] UKIntelP o23614, EP1980746
Bailii
Patents Act 1977 37
England and Wales

Intellectual Property, Costs

Updated: 17 December 2021; Ref: scu.534563

Locabail (UK) Ltd v Bayfield Properties Ltd and Others (No 3): ChD 29 Feb 2000

It can be proper to award costs against a third party to an action where his behaviour had fallen short of strictly maintaining the action. Here a husband had funded his wife’s defence knowing that she would be unable to support any order for costs against her, he had identified very closely with the defence, and his evidence had been seen to be partial and indifferent to the factual issues, and the court had dismissed the facts alleged to underpin the defence proffered.

Lawrence Collins DJ
Times 29-Feb-2000, [1999] EWHC 261 (Ch)
Bailii
England and Wales
Citing:
See Also – Locabail (UK) Ltd, Regina v Bayfield Properties Ltd CA 17-Nov-1999
Adverse Comments by Judge Need not be Show of Bias
In five cases, leave to appeal was sought on the basis that a party had been refused disqualification of judges on grounds of bias. The court considered the circumstances under which a fear of bias in a court may prove to be well founded: ‘The mere . .

Cited by:
Cited – Smithkline Beecham Plc and Advertising Standards Authority Admn 21-Dec-2000
The appellants sold a soft drink. They advertised it using a toothbrush as part of the image. They also said ‘Ribena Toothkind does not encourage tooth decay’, and cited support from the British Dental Association. The Authority held that this . .
See Also – Locabail (UK) Ltd, Regina v Bayfield Properties Ltd CA 17-Nov-1999
Adverse Comments by Judge Need not be Show of Bias
In five cases, leave to appeal was sought on the basis that a party had been refused disqualification of judges on grounds of bias. The court considered the circumstances under which a fear of bias in a court may prove to be well founded: ‘The mere . .

Lists of cited by and citing cases may be incomplete.

Costs

Updated: 11 December 2021; Ref: scu.83130

Cripps v Heritage Distribution Corporation and Others: CA 10 Nov 1999

It was proper to take into account the surrounding circumstances when considering the making of an order for the giving of security of costs against a plaintiff resident abroad. The underlying purpose of such orders had to be allowed for. Here, linked cases meant that a success against one party would mean also success against another, and the need for security for costs in the increased sum requested was not supported.

Times 10-Nov-1999, Gazette 17-Nov-1999
England and Wales

Costs

Updated: 11 December 2021; Ref: scu.79673

Macarthys Ltd v Smith (No.2): CA 17 Apr 1980

The parties had disputed a difference in payment between the woman applicant and men doing similar work. After a lengthy dispute the parties now disputed the costs.
Held: The company had correctly been ordered to pay the costs.

Lord Denning MR, Lawton, Cummin-Bruce LJJ
[1980] EWCA Civ 7, [1981] QB 180, [1980] ICR 672, [1980] IRLR 210, [1980] 2 CMLR 217, [1980] 3 WLR 929, [1981] 1 All ER 111
Bailii
England and Wales
Citing:
At EAT – Smith v Macarthys Ltd EAT 14-Dec-1977
Mrs Smith was employed by the respondents, wholesale dealers in pharmaceutical products, as a warehouse manageress at a weekly salary of andpound;50. She complained of discrimination in pay because her male predecessor whose post she took up after . .
At CA (1) – Macarthys Ltd v Smith CA 1980
The employee had taken on a job substantially similar to that of a previous male employee, but had been paid less. She succeeded in a claim under the 1971 Act before the industrial tribunal and Employment Appeal Tribunal. The employer appealed . .
At ECJ – Macarthys Ltd v Smith ECJ 27-Mar-1980
The first paragraph of article 119 of the EEC Treaty applies directly, and without the need for more detailed implementing measures on the part of the community or the member states, to all forms of direct and overt discrimination which may be . .

Lists of cited by and citing cases may be incomplete.

Employment, European, Costs

Updated: 11 December 2021; Ref: scu.262686

Cutts v Head and Another: CA 7 Dec 1983

There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining that the judge had failed to take into account an offer of settlement made by him before trial.
Held: The principles of Calderbank should be of general application, and not just within matrimonial proceedings.
Oliver LJ discussed the attempt to apply the without prejudice rule: ‘That the rule rests, at least in part, upon public policy is clear from many authorities, and the convenient starting point of the inquiry is the nature of the underlying policy. It is that parties should be encouraged so far as possible to settle their disputes without resort to litigation and should not be discouraged by the knowledge that anything that is said in the course of such negotiations (and that includes, of course, as much the failure to reply to an offer as an actual reply) may be used to their prejudice in the course of the proceedings. They should, as it was expressed by Clauson J. in Scott Paper Co. v. Drayton Paper Works Ltd. (1927) 44 R.P.C. 151, 156, be encouraged fully and frankly to put their cards on the table. The public policy justification, in truth, essentially rests on the desirability of preventing statements or offers made in the course of negotiations for settlement being brought before the court of trial as admissions on the question of liability.’
The rule applies to exclude all negotiations genuinely aimed at settlement whether oral or in writing from being given in evidence. A competent solicitor will always head any negotiating correspondence ‘without prejudice’ to make clear beyond doubt that in the event of the negotiations being unsuccessful they are not to be referred to at the subsequent trial. However, the application of the rule is not dependent upon the use of the phrase ‘without prejudice’ and if it is clear from the surrounding circumstances that the parties were seeking to compromise the action, evidence of the content of those negotiations will, as a general rule, not be admissible at the trial and cannot be used to establish an admission or partial admission.’
and ‘As a practical matter, a consciousness of a risk as to costs if reasonable offers are refused can only encourage settlement whilst, on the other hand, it is hard to imagine anything more calculated to encourage obstinacy and unreasonableness than the comfortable knowledge that a litigant can refuse with impunity whatever may be offered to him even if it is as much as or more than everything to which he is entitled in the action.’

Oliver LJ, Fox LJ
[1984] Ch 290, [1983] EWCA Civ 8, [1984] 2 WLR 349, [1984] 1 All ER 597
Bailii
England and Wales
Citing:
Cited – Calderbank v Calderbank CA 5-Jun-1975
Letter Without Prejudice Save as to Costs
Husband and wife disputed provision under 1973 Act, and a summons under section 17 of the 1882 Act. The wife had offered to transfer a house to H occupied by his mother, worth about pounds 12,000, in return for him leaving the matrimonial home. He . .
Cited – Scott Paper Co v Drayton Paper Works Ltd 1927
Parties to litigation should ‘be encouraged fully and frankly to put their cards on the table.’ . .
Cited – Walker v Wilsher CA 1889
Letters or conversations which were written or declared to be ‘without prejudice’ may not be taken into consideration in determining whether there is good cause for depriving a successful litigant of his costs.
Lord Esher MR said: ‘The letters . .
Cited – Hoghton v Hoghton CA 16-Apr-1852
When a person has made a large voluntary disposition the burden is thrown on the party benefitting to show that the disposition was made fairly and honestly and in full understanding of the nature and consequences of the transaction. Romilly MR . .
Cited – In Re Daintrey, Ex Parte Holt QBD 8-May-1893
The court was asked whether a letter could be admitted in evidence and relied upon as an act of bankruptcy. The letter was sent by the debtor to the creditor at a time when there was no dispute, headed ‘without prejudice’. It contained an offer of . .
Cited – Stotesbury v Turner 1943
Without prejudice negotiations are, as a matter of public policy, to be protected from disclosure to the court seized of the dispute. An arbitrator has the same discretion as to costs as has a High Court judge. . .
Cited – Tomlin v Standard Telephones and Cables Ltd CA 1969
Without prejudice material can be admitted if the issue is whether or not the negotiations resulted in an agreed settlement. Without considering the communications in question it would be impossible to decide whether there was a concluded settlement . .
Cited – McDonnell v McDonnell CA 1977
In family proceedings, a costs letter had been written in the form suggested in Calderbank.
Held: The court accepted and endorsed the practice suggested by Cairns LJ. Ormrod LJ said: ‘The important factor which distinguishes this case is the . .
Cited – Potter v Potter FD 1982
The court considered the admissibility of without prejudice correspondence on costs decisions. . .
Cited – Jones v Foxall CA 27-Mar-1852
Romilly MR deplored attempts to convert offers of compromise into admissions of acts prejudicial to the party making them, saying: ‘I find that the offers were in fact made without prejudice to the rights of the parties; and I shall, as far as I am . .
Cited – Transmountana Armadora v Atlantic Shipping 1978
Donaldson J discussed the nature of a sealed offer in arbitration proceedings: ‘Although the respondents’ offer of settlement has been referred to as an ‘open offer’, this is a misnomer. Offers of settlement in arbitral proceedings can be of three . .
Cited – Archital v Boot Construction 1981
. .
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Cited – Computer Machinery v Drescher ChD 1983
Sir Robert Megarry VC said: ‘For reasons that will appear, I think that I should pause in my recital of the facts in order to say something about these two cases. For a long while it has been settled law that if letters written ‘without prejudice’ . .
Cited – In re D (J) ChD 1982
The patient, a widow had five children. After she became a mental inpatient the court was asked to draft a statutory will.
Held: The court emphasised the need to provide full details of the estate assets and family background. An order that a . .
Cited – Rabin v Mendoza and Co CA 1954
The plaintiffs sued the defendants for negligence in surveying a property. Before the action commenced a meeting had taken place between the plaintiffs’ solicitor and a partner in the defendants’ firm of surveyors to see if the matter could be . .

Cited by:
Cited – Berry Trade Ltd and Another v Moussavi and others CA 22-May-2003
A defendant appealed against an order admitting as evidence, records of ‘without prejudice’ conversations.
Held: Written and oral communications, which are made for the purpose of a genuine attempt to compromise a dispute between the parties, . .
Cited – Norris v Norris, Haskins v Haskins CA 28-Jul-2003
The court considered how orders for costs were to be made in ‘big money’ cases.
Held: There were two sets of rules. Cases should be considered by first applying the Civil Procedure Rules. This would allow the court to consider the full range . .
Cited – Butcher v Wolfe and Another CA 30-Oct-1998
The parties had been partners in a family farm. On dissolution there was a dispute as to apportionment of costs. An offer had been ‘without prejudice save as to costs’.
Held: Costs may be denied to a plaintiff who had received a Calderbank . .
Cited – Prudential Insurance Company of America v Prudential Assurance Company Ltd CA 31-Jul-2003
The appellant sought to restrain the use in proceedings in New Zealand and elsewhere of ‘without prejudice’ documents discovered in court proceedings here.
Held: It was not sensible to elide the distinction between the two sources of . .
Cited – Savings and Investment Bank Ltd (In Liquidation) v Fincken CA 14-Nov-2003
Parties to litigation had made without prejudice disclosures. One party sought to give evidence contradicting the dsclosure, and the other now applied for leave to amend based upon the without prejudice statements to be admitted to demonstrate the . .
Cited – Muller and Another v Linsley and Mortimer (A Firm) CA 8-Dec-1994
The plaintiff sued his former solicitors for professional negligence. The damages he sought to recover related to loss he suffered when dismissed as a director of a private company leading to a forced sale of his shares in the company. The plaintiff . .
Cited – Reed Executive Plc, Reed Solutions Plc v Reed Business Information Ltd, Reed Elsevier (Uk) Ltd, Totaljobs.Com Ltd CA 14-Jul-2004
Walker v Wilshire still Good Law
After successfully appealing, the defendant claimant argued for a substantial part of its costs, saying that the defendant had unreasonably refused ADR. To pursue this, it now sought disclosure of the details of the without prejudice negotiations . .
Cited – Crouch v King’s Healthcare NHS Trust CA 15-Oct-2004
The defendants sought approval of their practice of making a written offer to the claimants rather than making a payment into court. The offer had been accepted but only after the defendant had purported to withdraw it.
Held: ‘it certainly is . .
Cited – Rush and Tompkins Ltd v Greater London Council and Another HL 1988
Use of ‘Without Prejudice Save as to Costs”
A sub-contractor sought payment from the appellants under a construction contract for additional expenses incurred through disruption and delay. The appellants said they were liable to pay the costs, and were entitled to re-imbursement from the . .
Cited – Bradford and Bingley Plc v Rashid CA 22-Jul-2005
The claimant sought recovery of a shortfall having sold the defendant’s house for a sum insufficient to clear the mortgage debt, and produced two letters which they claimed acknowledged the debt and restarted the limitation period running. The . .
Cited – Bradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
Followed – Daks Simpson Group plc v Kuiper 1994
The creditor sought summary judgment for an account for commissions earned. In a ‘without prejudice’ letter the defendant’s director said that he was prepared to accept that he had received such commissions in stated amounts.
Held: Lord . .
Cited – Framlington Group Ltd and Another v Barnetson CA 24-May-2007
The defendant had sought an order requiring the claimant to remove from a witness statement elements referring to without prejudice discussions between the parties before litigation began.
Held: The defendant’s appeal succeeded. The test for . .
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Cited – Brown v Rice and Another ChD 14-Mar-2007
The parties, the bankrupt and her trustee, had engaged in a mediation which failed at first, but applicant said an agreement was concluded on the day following. The defendants denied this, and the court as asked to determine whether a settlement had . .
Cited – Rush and Tomkins Ltd v Greater London Council HL 3-Nov-1988
The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the . .
Cited – BNP Paribas v A Mezzotero EAT 30-Mar-2004
EAT Appeal from ET’s decision, at directions hearing, permitting evidence to be adduced, at the forthcoming hearing of a direct sex discrimination and victimisation complaint, of the Applicant’s allegation that, . .
Cited – Ofulue and Another v Bossert HL 11-Mar-2009
The parties disputed ownership of land, one claiming adverse possession. In the course of negotations, the possessor made a without prejudice offer to purchase the paper owner’s title. The paper owner claimed that this was an acknowledgement under . .
Cited – Oceanbulk Shipping and Trading Sa v TMT Asia Ltd CA 15-Feb-2010
The parties had settled their disagreement, but now disputed the interpretation of the settlement. The defendant sought to be allowed to give in evidence correspondence leading up to the settlement which had been conducted on a without prejudice . .
Cited – Brodie v Ward (T/A First Steps Nursery) EAT 7-Feb-2007
EAT Practice and Procedure – without prejudice letter
The EAT held that the Employment Tribunal was correct in excluding a solicitor’s without prejudice letter in other proceedings which the Appellant . .
Cited – Oceanbulk Shipping and Trading Sa v TMT Asia Ltd and Others SC 27-Oct-2010
The court was asked whether facts which (a) are communicated between the parties in the course of without prejudice negotiations and (b) would, but for the without prejudice rule, be admissible as part of the factual matrix or surrounding . .
Cited – Berkeley Square Holdings and Others v Lancer Property Asset Management Ltd and Others ChD 1-May-2020
Application by the Claimants to strike out parts of the Defence as an abuse of process and an application by the Defendants to amend their Defence. However, both applications turn on the question whether certain facts on which the Defendants seek to . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs

Leading Case

Updated: 10 December 2021; Ref: scu.182471

R P Baker (Oxford) Ltd v Revenue and Customs: FTTTx 9 May 2014

COSTS -appeal against penalty for failure to comply with information notice – appeal withdrawn two days before hearing – HMRC applied for costs without costs schedule – whether extension of time to be granted for provision of schedule – Mitchell considered – yes – whether appeal had reasonable prospect of success – no – whether appellant’s conduct in bringing and maintaining appeal unreasonable – yes – costs awarded

[2014] UKFTT 420 (TC)
Bailii
England and Wales

Costs

Updated: 05 December 2021; Ref: scu.526869

Softhouse Consulting Ltd v Revenue and Customs (Costs): UTTC 19 Feb 2014

UTTC After perusing the respondents’ application for a direction in respect of their costs of and incidental to the appellant’s application for permission to appeal, there having been no representations thereon by the appellant, It is directed that the application is dismissed.

[2014] UKUT B3 (TCC)
Bailii
England and Wales

VAT, Costs

Updated: 02 December 2021; Ref: scu.523486

Lakatamia Shipping Co Ltd v Su: ComC 20 Mar 2014

Hamblen J
[2014] EWHC 796 (Comm), [2014] 3 Costs LR 532
Bailii
England and Wales
Cited by:
SeeAlso – Lakatamia Shipping Company Ltd v Su and Others CA 14-May-2014
The claimant had obtained a freezing order in standard form against the defendant company. The Director of the company had similar sole positions in three other companies. The claimant obtained a similar order against the assets of the other . .

Lists of cited by and citing cases may be incomplete.

Costs

Updated: 02 December 2021; Ref: scu.523286

Anderson v Cheltenham and Gloucester Plc: EAT 5 Dec 2013

EAT Practice and Procedure : Costs – Claimant failed to beat earlier Calderbank offer at remedy stage. Employment Tribunal made costs order against her limited to andpound;10,000. On consideration of EAT authorities, EAT concluded that ET had failed to take into account relevant factors. Having done so, costs order set aside and appeal allowed. – Observations made about setting off costs order against compensatory award.

Pdeter Clark J
[2013] UKEAT 0221 – 13 – 0512
Bailii
England and Wales

Employment, Costs

Updated: 28 November 2021; Ref: scu.520037

Bruce and Company v Ferguson: ScSf 23 Sep 2013

The Sheriff Principal, having resumed consideration of the cause, refuses the appeal; adheres to the sheriff’s interlocutors of 17 July 2012 and 6 September 2012; finds the appellants liable to the respondents in the expenses of the appeal and allows an account thereof to be given in and remitted to the Auditor of Court to report and tax; certifies the cause as suitable for the employment of junior counsel.

[2013] ScotSC 86
Bailii
Scotland

Costs

Updated: 27 November 2021; Ref: scu.519255

Aoun v Bahri and Another: ComC 6 Feb 2002

Application for security for costs against the claimant.

Moore-Bick, J
[2002] EWHC 29 (Commercial), [2002] 3 All ER 182
Bailii, Bailii
England and Wales
Cited by:
Appeal from – Mohamad Ali Aoun v Hassan Bahri, Costas Angelou CA 31-Jul-2002
The claimant wanted to appeal an order to pay the defendants’ costs already ordered, and to provide security for costs of the remaining action. The defendants requested security for the costs of the appeal. Throughout the matter the claimant had . .
Cited – Harris v Wallis ChD 10-Mar-2006
The claimant sought his profit share from a partnership. The defendant complained that the claimant had for some time put his assets beyond reach, and obtained an order for security for costs. The claimant now appealed.
Held: The appeal . .
Cited – MG v AR FD 16-Nov-2021
Family Case: Costs Security depends on Case Merits
Application for security for costs in family cases.
Held: In contrast to civil cases generally, in a family case the merits of the application and the strength of the defence necessarily have to be carefully considered. It is only by . .

Lists of cited by and citing cases may be incomplete.

Costs

Updated: 22 November 2021; Ref: scu.171170

Rubin v Rubin: FD 10 Mar 2014

The court heard an application by the wife for a legal services payment order.

Mostyn J
[2014] EWHC 611 (Fam)
Bailii
Legal Aid, Sentencing and Punishment of Offenders Act 2012
England and Wales
Citing:
Cited – TL v ML and others FD 9-Dec-2005
. .
Cited – Currey v Currey CA 18-Oct-2006
Where one party in an ancillary relief claim was not entitled to legal aid, but showed a need for legal representation which he or she could not afford, the court could make an order requiring the other party to make a costs allowance. The nature of . .
Cited – Makarskaya v Korchagin FD 21-Jun-2013
. .

Cited by:
Cited – MG v AR FD 16-Nov-2021
Family Case: Costs Security depends on Case Merits
Application for security for costs in family cases.
Held: In contrast to civil cases generally, in a family case the merits of the application and the strength of the defence necessarily have to be carefully considered. It is only by . .

Lists of cited by and citing cases may be incomplete.

Family, Costs

Updated: 22 November 2021; Ref: scu.522292

Sir Lindsay Parkinson and Co Ltd v Triplan Ltd: CA 1973

The court exercises a full discretion when ordering security for costs.
Where a plaintiff who is ordinarily resident out of jurisdiction has no assets within it, he or she may still yet convince the court against ordering security for costs if he or she were able to show that the application was being used oppressively so as to stifle a genuine claim, and the Court ‘would also consider whether the company’s want of means has been brought about by any conduct by the defendants’.
Lord Denning MR set out some of the matters which the court might, in an appropriate case, take into account in deciding whether, and if so, how, to exercise its discretion: ‘Such as whether the company’s claim is bona fide and not a sham, and whether the company has a reasonably good prospect of success . . whether there is an admission by the defendants on the pleadings or elsewhere that money is due . . whether the application for security was being used oppressively – so as to try to stifle a genuine claim . . whether the company’s want of means has been brought about by any conduct by the defendants, such as delay in payment or delay in doing their part of the work.’

Lord Denning MR
[1973] QB 609, [1973] 2 All ER 273
England and Wales
Cited by:
Cited – Keary Developments v Tarmac Constructions CA 1995
The court set out the principles to be applied by the court upon an application for security for costs.
1. The court has a complete discretion whether to order security, and accordingly it will act in the light of all the relevant . .
Cited – MG v AR FD 16-Nov-2021
Family Case: Costs Security depends on Case Merits
Application for security for costs in family cases.
Held: In contrast to civil cases generally, in a family case the merits of the application and the strength of the defence necessarily have to be carefully considered. It is only by . .

Lists of cited by and citing cases may be incomplete.

Costs

Updated: 22 November 2021; Ref: scu.225881

Myers v Rothfield: CA 1938

The solicitor had left the conduct of proceedings largely to his managing clerk. The trial judge held that the solicitor had not been guilty of professional misconduct in allowing the defences to be delivered, but that he had been guilty of such misconduct in allowing the inadequate affidavits of documents to be made. He ordered the solicitor to pay one-third of the plaintiff’s costs of the action and two-thirds of the costs of the application.
Held: (MacKinnon LJ dissenting) Assuming that the acts in question, if done by a solicitor personally, would constitute professional misconduct on his part, the solicitor was not liable as he had appointed a fully qualified clerk to prepare the defences and affidavits of documents, and the acts had been done not by the solicitor himself but by the clerk.

Greer and Slesser LJJ, MacKinnon LJ
[1939] 1 KB 109, [1938] 3 All ER 498
Cited by:
Appeal from – Myers v Elman HL 1939
The solicitor had successfully appealed against an order for a contribution to the other party’s legal costs, after his clerk had filed statements in court which he knew to be misleading. The solicitor’s appeal had been successful.
Held: The . .
Cited – Ridehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 19 November 2021; Ref: scu.279002

Sud v London Borough of Ealing: CA 30 Jul 2013

The claimant appealed against an order that he contribute one half of the defendant’s costs of defending the employment claim which he had lost.

Maurice Kay VP CA, Patten, Fulford LJJ
[2013] EWCA Civ 949, [2013] 5 Costs LR 777, [2013] ICR D39, [2013] Eq LR 993, [2013] WLR(D) 320
Bailii, WLRD
England and Wales

Costs, Employment

Updated: 18 November 2021; Ref: scu.514251

Hammersmatch Properties (Welwyn) Ltd v Saint-Gobain Ceramics and Plastics Ltd and Another: TCC 24 Jul 2013

Caim for dilapidations on the termination of a lease of the Norton Building in Welwyn Garden City.

Ramsey J
[2013] EWHC 2227 (TCC), [2013] BLR 554, (2013) 149 Con LR 147, [2013] 5 Costs LR 758
Bailii
Landlord and Tenant Act 1927 18(1)

Landlord and Tenant, Costs

Updated: 17 November 2021; Ref: scu.513786

Elvanite Full Circle Ltd v AMEC Earth and Environmental (UK) Ltd: TCC 14 Jun 2013

Following the proncipal judgment there were disputes as to the basis of assessment of costs and the interaction between the existing costs management order (which approved the defendant’s budget costs of andpound;264,708) and the total costs now sought by the defendant, in the sum of andpound;497,593.66.
Held: The court allowed the claimants to revise/rectify the approved costs management order to make plain that the approved budget excluded the success fees and the ATE insurance premiums.

Coulson J
[2013] EWHC 1643 (TCC), [2013] 4 All ER 765, [2013] TCLR 7, [2013] 4 Costs LR 612, [2013] BLR 473
Bailii
Citing:
Cited – Wates Construction Ltd v HGP Greentree Allchurch Evans Ltd TCC 10-Oct-2005
A unit constructed by the claimant had collapsed under a weight of rainwater. It had been constructed according to a design provided by the defendants. The claimants had discontinued the action on the morning of the trial, and the defendants now . .
Cited – Excelsior Commercial and Industrial Holdings Ltd v Salisbury Hammer Aspden and Johnson (A Firm) CA 12-Jun-2002
The court was asked as to when it is appropriate to order costs on an indemnity basis. Waller LJ said: ‘The question will always be: is there something in the conduct of the action or the circumstances of the case which takes the case out of the . .
Cited – Digicel (St Lucia) Ltd and Others v Cable and Wireless Plc and Others ChD 23-Apr-2010
. .
Cited – Euroption Strategic Fund Ltd v Skandinaviska Enskilda Banken Ab ComC 30-Mar-2012
. .
Cited – Henry v News Group Newspapers Ltd CA 28-Jan-2013
. .

Lists of cited by and citing cases may be incomplete.

Costs

Updated: 14 November 2021; Ref: scu.510882

Chartwell Estate Agents Ltd v Fergies Properties Sa and Another: CA 16 Apr 2014

Appeal from a decision relating to relief from sanction under CPR 3.9. The context is failure to serve witness statements within the time specified by a prior court order.

Laws, Sullivan, Davis LJJ
[2014] EWCA Civ 506, [2014] 3 Costs LR 588, [2014] CILL 3513
Bailii
Civil Procedure Rules 3.9
England and Wales

Costs

Updated: 12 November 2021; Ref: scu.525103

Valentines Homes and Construction Ltd, Regina (on The Application of) v HM Revenue and Customs: CA 31 Mar 2010

The claimant had applied for judicial review of a decision by the defendant to seek to recover a debt from them. The issue had however been settled in the County Court. Costs were ordered against them, and they now appealed. In a small company the chief manager and owner suffered a severe head injury, and his wife had failed to make PAYE payments. They said that HMRC had failed to respond to the details supplied and had pursued a sum which they ought to have known was incorrect.
Held: The appeal succeeded, and the HMRC was ordered to pay the claimants costs, though in a reducded amount.
The court considered that the defendant’s equitable liability policy, if it ever applied, applied in this case: ‘I do not consider that it was an abuse of the process of the court or unreasonable for the appellants to resort to a public law claim in the prevailing circumstances. Despite the good sense and relevance of the equitable liability practice, HMRC had initiated, and despite all reasonable efforts by the appellants to settle for the sum actually due, persisted in their statutory claim for the amount deemed to be due. HMRC failed to respond to the appellants’ proposals for over four months, notwithstanding reminders. They were then supplied with detailed and, it appears, scrupulous, calculations of the sum actually due but persisted in a claim for the sum deemed to be due under Regulation 78.’

Pill, Moore-Bick LJJ, Sir David Keene
[2010] EWCA Civ 345
Bailii
England and Wales
Citing:
Cited – Regina v Huntingdon District Council, Ex parte Cowan QBD 1984
The plaintiff sought judicial review of a refusal of a local authority to grant a liquor licence and a music and dancing licence. Review was sought despite a right of appeal to the Magistrates Court.
Held: If other means of redress are . .
Cited – Wandsworth London Borough Council v Winder HL 1985
Rent demands were made by a local authority landlord on one of its tenants. The local authority, using its powers under the Act, resolved to increase rents generally. The tenant refused to pay the increased element of the rent. He argued that the . .
Cited – Mercury Communications Ltd v Director General of Telecommunications and Another HL 10-Feb-1995
The Secretary of State’s decision on the grant of a Telecommunications licence was challengeable by Summons and not by Judicial Review. A dispute between Mercury and BT as to charges as set by the Director General is a private not a public dispute. . .
Mentioned – Kay and Another v London Borough of Lambeth and others; Leeds City Council v Price and others and others HL 8-Mar-2006
In each case the local authority sought to recover possession of its own land. In the Lambeth case, they asserted this right as against an overstaying former tenant, and in the Leeds case as against gypsies. In each case the occupiers said that the . .
Cited – Boddington v British Transport Police HL 2-Apr-1998
The defendant had been convicted, under regulations made under the Act, of smoking in a railway carriage. He sought to challenge the validity of the regulations themselves. He wanted to argue that the power to ban smoking on carriages did not . .
Cited – Pyx Granite Co Ltd v Minister of Housing and Local Government CA 1958
Pyx Granite had the right to quarry in two areas of the Malvern Hills. The company required permission to break fresh surface on one of the sites.
Held: Conditions attached to the planning permission relating to such matters as the times when . .
Cited – Al Fayed v Advocate General for Scotland (Representing the Inland Revenue Commissioners) SCS 29-Jun-2004
The petitioners reclaimed against an interlocutor refusing their petition for judicial review of the refusal of the Commissioners to abide by an agreement reached with them.
Held: The Revenue were permitted, in exercise of a managerial . .
Cited – Pyx Granite Ltd v Ministry of Housing and Local Government HL 1959
There is a strong presumption that Parliament will not legislate to prevent individuals affected by legal measures promulgated by executive public bodies having a fair opportunity to challenge these measures and to vindicate their rights in court . .

Lists of cited by and citing cases may be incomplete.

Costs, Taxes Management

Updated: 11 November 2021; Ref: scu.406624

English v Emery Reimbold and Strick Ltd; etc, (Practice Note): CA 30 Apr 2002

Judge’s Reasons Must Show How Reached

In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the decision in their case had been arrived at. Flannery preceded the Act. Reasons may be implicit from the finding itself, and in such cases more detailed reasons may not be necessary. The need varied from case to case. For costs orders, only in those cases where an order with neither reasons nor any obvious explanation was it likely to be appropriate to give permission to appeal for lack of reasons. if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the judge reached his decision. ‘Justice will not be done if it is not apparent to the parties why one has won and the other has lost’. This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge’s conclusion should be stated and the manner in which he resolved them explained. It does require the judge to identify and record those matters which were critical to his decision.

Lord Phillips of Worth Matravers, Master of the Rolls, Lord Justice Latham and Lady Justice Arden
Times 10-May-2002, Gazette 30-May-2002, [2002] EWCA Civ 605, [2002] 1 WLR 2409, [2002] 3 All ER 385, [2003] IRLR 710
Bailii
European Convention on Human Rights Art 6
England and Wales
Citing:
Cited – Flannery and Another v Halifax Estate Agencies Ltd, Trading As Colleys Professional Services CA 18-Feb-1999
A judge at first instance taking a view on an expert’s report should give reasons in his judgment for that view. On appeal, where no reasons had been given, he should be asked to provide reasons by affidavit for the appeal. An inadequately reasoned . .
Cited – Eagil Trust Co Ltd v Pigott-Brown CA 1985
There is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. When dealing with an application in chambers to strike out for want of prosecution a judge should give his reasons in . .

Cited by:
Cited – Budgen v Andrew Gardner Partnership CA 31-Jul-2002
The defendant firm of solicitors appealed an order for costs against it based upon a percentage calculation. They sought an issues based costs order.
Held: Where there was insufficient information upon which to calculate an issues based costs . .
Cited – Checkpoint Ltd v Strathclyde Pension Fund CA 6-Feb-2003
The tenants sought to challenge the arbitrator’s award setting the rent payable under the lease. They claimed that he had improperly refered to his own experience of the market, to support his decision, and this committed a serious irregularity . .
Cited – William Browning, Maureen Browning v Messrs Brachers (A Firm) QBD 15-May-2003
The claimants sought damages for professional negligence, in having failed to pursue a claim for professional negligence against a previous firm of solicitors who had acted for the claimant. . .
Cited – Merer v Fisher and Another CA 13-May-2003
A right of pre-emption had misdescribed the property when it was registered. The land was transferred without regard to the right of pre-emption. It was found as a fact that no money passed for the transfer, and the claimants said the unregistered . .
Cited – The Law Society v Kamlesh Bahl EAT 7-Jul-2003
EAT Sex Discrimination – Direct
The complainant had been suspended from her position as Vice President of the Law Society. The Society and its officers appealed findings of sex and race discrimination . .
Cited – Logan v Commissioners of Customs and Excise CA 23-Jul-2003
The respondent had at the close of the claimant’s case submitted that it had no case to answer. The tribunal agreed and discharged the claim without hearing from the respondent. The employer appealed the EAT’s decision to allow her appeal.
Cited – Grant v Director of Public Prosecutions Admn 22-Jan-2003
The appellant had been convicted of failing to give a breath test, and of driving with excess alcohol. He had falsely claimed that he had had a drink in the five minutes before being asked to take the test, and said the officer should not have . .
Cited – Richardson and Orme v North Yorkshire County Council CA 19-Dec-2003
The claimants appealed against an order dismissing their application for a judicial review of the respondent’s grant of planning permission. They contended that a councillor with an interest in the matter had wrongfully not been excluded from the . .
Cited – Sykes and Another v Taylor-Rose and Another CA 27-Feb-2004
The appellants purchased a property from the respondents. The house had been the site of a partiularly horrendous murder in 1980, but the respondents did not disclose the fact.
Held: The doctrine of caveat emptor still had application. As . .
Cited – Independent Assessor v O’Brien, Hickey, Hickey CA 29-Jul-2004
The claimants had been imprisoned for many years before their convictions were quashed. They claimed compensation under the Act. The assessor said that there should be deducted from the award the living expenses they would have incurred if they had . .
Cited – Richardson v Howie CA 13-Aug-2004
The claimant sought damages for assault. In the course of a tempestuous relationship, she said the respondent had physically assaulted her in Barbados. He was later convicted of soliciting her murder. She sought and was awarded aggravated damages, . .
Cited – Mathialagan, Regina (on the Application of) v London Borough of Southwark and Another CA 13-Dec-2004
Liability Orders were made against the appellant in respect of non-domestic rates in respect of two properties. The orders were made in the absence of the appellant or any representative. Application for judicial review was made to re-open the . .
Cited – Smithkline Beecham Plc and Another v Apotex Europe Ltd and others CA 16-Dec-2004
Following its earlier main judgment in the case, the court made use of the CPR to award costs on an appeal. The overall result had been that the patent was found to be valid but not infringed. There had been huge costs. Smithkline sought costs on an . .
Cited – Stephens and Another v Cannon and Another CA 14-Mar-2005
The claimants had purchased land from the defendants. The contract was conditional on a development which did not take place. The master had been presented with very different valuations of the property.
Held: The master was not entitled to . .
Cited – Golobiewska v Commissioners of Customs and excise CA 6-May-2005
The owner of a motor vehicle which had been seized by Customs applied to have it restored.
Held: the 1994 Act placed the burden on the applicant to establish that she was entitled to the return of her car, but the standard of proof was the . .
Cited – Law Society v Bahl CA 30-Jul-2004
The claimant had succeeded before the employment tribunal in her claim of race discrimination by the respondent and senior officers. She now appealed the reversal of that judgment. The claimant asked the tribunal to draw inferences of discrimination . .
Cited – Baird v Thurrock Borough Council CA 7-Nov-2005
The defendant council appealed a finding of negligence after a dustbinman had been injured when he was struck by a wheelie bin. He had said that a malfunction in the mechanism loading the wheelie bin caused him to be hit by one.
Held: The . .
Cited – Fielden, Graham (Executors of Cunliffe deceased) v Cunliffe CA 6-Dec-2005
The will was executed anticipating the marriage to the respondent, leaving assets on discretionary trusts for the responent and various family members and others. She had come to work for the deceased as his housekeeper, but later they came to . .
Cited – Baxendale-Walker v The Law Society Admn 30-Mar-2006
The solicitor appealed being struck off. He had given a character reference in circumstances where he did not have justification for the assessment.
Held: ‘The appellant knew that Barclays Bank trusted him to provide a truthful reference. . .
Cited – Appiah and Another v Bishop Douglas Roman Catholic High School CA 26-Jan-2007
Black students of African origin, had been excluded from school after an incident. They appealed rejection of their claims for race discrimination and victimisation, saying that they had been at first excluded wrongfully.
Held: ‘Consideration . .
Cited – Hicks Developments Ltd v Chaplin and others ChD 5-Feb-2007
The defendants had succeeded in an application before the Land Registry adjudicator for a strip of land adjoining their property to be registered in their name after a finding that they had successfully established a claim by adverse possession. The . .
Cited – Aziz v Aziz and others CA 11-Jul-2007
The claimant sought return of recordings and of money paid to the defendant through an alleged fraud or threats. She was the former wife of the Sultan of Brunei and head of state, who now sought an order requiring the court to protect his identity . .
Cited – Bryce Ashworth v Newnote Ltd CA 27-Jul-2007
The appellant challenged a refusal to set aside a statutory demand, in respect of his director’s loan account with the respondent company, saying the court should have accepted other accounts to set off against that debt.
Held: A statutory . .
Cited – EE and Brian Smith (1928) Ltd v Hodson and others CA 23-Nov-2007
The defendants appealed grant of an interim injunction to enforce restrictive employment covenants. The second defendant had sold his interest in the claimant company in 2001, but after his consultancy ended, he set up another business, the third . .
Cited – In re A (a Child) (Duty to seek reasons) CA 19-Sep-2007
Where counsel intended to file an appeal and in case of doubt, counsel should consider requesting the judge to amplify or clarfy the reasons for making his own decision before filing his appeal. . .
Cited – Wilson and Another v Burnett CA 24-Oct-2007
Insufficient Evidence of Lottery Contract
The defendant won a large prize at bingo. The claimants said they had a binding oral agreement to pool each others winnings. They now appealed dismissal of their claim.
Held: The evidence had in all material respects conflicted. The . .
Cited – Mubarak v General Medical Council Admn 20-Nov-2008
The doctor appealed against a finding against him of professional misconduct in the form of a sexualised examination of a female patient.
Held: The reasons given were adequate, and the response of erasure from the register was the only one . .
Cited – Phipps v General Medical Council CA 12-Apr-2006
Wall LJ considered the need for the Professional Conduct Committee (PCC) GMC to give clear reasons for its decisions against the background of human rights law, and concluded that the principles enunciated in English were of universal application . .
Cited – ZM v JM; Re M (children) (fact-finding hearing: burden of proof); In re M (a Child) (Non-accidental injury: Burden of proof) CA 19-Nov-2008
When a court considered which of two parents might be responsible for a non-accidental injury to their child, what the court cannot do is decide that one parent is the perpetrator but that the other parent cannot be excluded as the perpetrator. . .
Cited – Burns v Royal Mail Group Plc (No 2) (Formerly Consignia Plc), Humphrey EAT 14-Jan-2004
The hearing was an adjourned second hearing. The appeal on sex discrimination had been dismissed, and the balance of the claim for constructive unfair dismissal was adjourned. At that adjourned hearing the claimant now sought to re-open the claims . .
Cited – Rolls-Royce plc v Unite the Union CA 14-May-2009
The parties disputed whether the inclusion of length of service within a selection matrix for redundancy purposes would amount to unlawful age discrimination. The court was asked whether it was correct to make a declaratory judgment when the case . .
Applied – Green v Half Moon Bay Hotel (Antigua and Barbuda) PC 2-Jun-2009
The claimant appealed on the basis that the appeal court had not given reasons for its decision rejecting his appeal.
Held: There were real grounds to doubt elements of the applicant’s version of events, but in essence the appeal had been . .
Cited – St Albans Girls School and Another v Neary CA 12-Nov-2009
The claimant’s case had been struck out after non-compliance with an order to file further particulars. His appeal was allowed by the EAT, and the School now itself appealed, saying that the employment judge had wrongly had felt obliged to have . .
Cited – Al Rawi and Others v The Security Service and Others CA 4-May-2010
Each claimant had been captured and mistreated by the US government, and claimed the involvement in and responsibility for that mistreatment by the respondents. The court was asked whether a court in England and Wales, in the absence of statutory . .
Cited – Sher and Others v Chief Constable of Greater Manchester Police and Others Admn 21-Jul-2010
The claimants, Pakistani students in the UK on student visas, had been arrested and held by the defendants under the 2000 Act before being released 13 days later without charge. They were at first held incognito. They said that their arrest and . .
Cited – Punch Pub Company Ltd v O’Neill EAT 23-Jul-2010
EAT UNFAIR DISMISSAL
Reasonableness of dismissal
Procedural fairness/automatically unfair dismissal
The Employment Tribunal failed to consider the effect of S98A(2) of the Employment Rights Act . .
Cited – Hazelhurst and Others v Solicitors Regulation Authority Admn 11-Mar-2011
The claimants appealed against disciplinary orders. A member of staff had stolen substantial sums from client account. They had admitted breaches of the Accounts and Practice rules, but personally made good all losses. They said that the Solicitors . .
Cited – Potts v Densley and Another QBD 6-May-2011
potts_densleyQBD11
The claimant had been a shorthold tenant. The landlord had failed to secure the deposit as required, but offered to repay it after the determination of the tenancy. The claimant now appealed against a refusal of an award of three times the deposit. . .
Cited – J K Bansi v Alpha Flight Services EAT 3-Feb-2004
EAT Redundancy – Collective consultation and information. Serota QC J said: ‘In English v Emery Reimbold and Strick Ltd . . the Court of Appeal gave guidance as to the circumstances in which a Judge might be . .
Cited – In re T (A Child: contact) CA 24-Oct-2002
The court considered an appeal in care proceedings, where it was felt that the judge’s reasons for his findings were inadequately set out. Arden LJ pointed out that the principles in Emery Reimbold applied also in care proceedings, and set out . .
Cited – Adebowale v Peninsula Business Services Ltd EAT 20-Jan-2003
Burton J P said that the CA had ‘expressly encouraged Courts considering whether an appeal should proceed on grounds of alleged failure to make findings, or alleged absence of reasons, to consider referring the case back to the lower Court for . .
Cited – Re L and B (Children) SC 20-Feb-2013
The court was asked as to the extent to which a court, having once declared its decision, could later change its mind. Though this case arose with in care proceedings, the court asked it as a general question. The judge in a fact finding hearing in . .
Cited – In re L and B (Children) CA 18-Jul-2012
In care proceedings, there had been protracted fact finding hearings. The judge had given a preliminary report as to her conclusions, but received a communication from counsel for the father requesting her to re-address certain aspects. She later . .
Cited – Sterlite Industries (India) Ltd v Bhatia EAT 27-Mar-2003
The respondent had been found to be unfairly dismissed. The appellants wished to appeal and sought disclosure of certain documents from the respondent’s solicitors. They now appealed against that refusal.
Held: The appeal succeeded. The . .
Cited – The Attorney General for Northern Ireland v Crawford and Another ChNI 4-May-2016
The AG sought leave to appeal against a decision by the tribunal for the removal of a trustee of a police charity.
Held: Permission was given. The decision of the tribunal was open to proper criticism. The appeal raised several important . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Litigation Practice, Costs

Leading Case

Updated: 11 November 2021; Ref: scu.170288

K v K: FD 29 Jul 2016

Costs of enforcement Order

The parties, mother and father, had divorced in Russia, and an order was made or the residence of their daughter with F, with contact for M. After coming to England, M obtained an order to enforce the first order. The court now considerd liability for costs.

MacDonald J
[2016] EWHC 2002 (Fam), [2016] WLR(D) 474
Bailii, WLRD
England and Wales

Children, International, Costs

Updated: 11 November 2021; Ref: scu.569168

Marshall and Co v Revenue and Customs: UTTC 7 Mar 2016

UTTC Costs – settlement of case before First-tier Tribunal – whether HMRC acted unreasonably in defending or conducting the proceedings – Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009, rule 10(1)(b) – whether FTT erred in law in refusing appellant’s application for costs.

[2016] UKUT 116 (TCC)
Bailii
England and Wales

Taxes Management, Costs

Updated: 11 November 2021; Ref: scu.562432

Aidiniantz v The Sherlock Holmes International Society Ltd: ChD 15 Jun 2016

Solicitor does not warrant his client’s case

The company had appealed from an order for its winding up. The solicitors had acted on the instructions of a director, whose authority was now challenged.
Held: The claim for costs against the solicitors failed. They had been properly retained and had had continuing ostensible authority. The litigation which followed had been as to the very issue now put. A solicitor does not warrant that his client has a good case.

Mark Anderson QC
[2016] EWHC 1392 (Ch), [2016] WLR(D) 526
Bailii, WLRD
England and Wales
Citing:
Main Judgment – The Sherlock Holmes International Society Ltd v Aidiniantz ChD 23-May-2016
The company appealed against a winding up order . .

Cited by:
Applied – Zoya Ltd v Sheikh Nasir Ahmed (T/A Property Mart) and Others ChD 7-Oct-2016
No warranty of authority on claimas to authority
Complaint was made that proceedings had been made by the claimant company when the solicitors acted on the instructions of somebody describing himself wrongly as a director of the company.
Held: The defendant’s request for costs against the . .

Lists of cited by and citing cases may be incomplete.

Costs, Legal Professions

Updated: 10 November 2021; Ref: scu.565851

Royal National Lifeboat Institution and Others v Headley and Another: ChD 28 Jul 2016

Beneficiaries’ right to information from estate

The claimant charities sought payment of interests under the will following the dropping of two life interests. They now requested various documents forming accounts of the estate.
Held: The charities were entitled to some but not to all of the documents sought, including accounts of capital and lists of investments, and the trustee’s fees insofar as they impacted on capital. They were not generally entitled to matters relating to income. They were allowed to see the documents underlying the trust and to be informed as to the history of the identities of the trustees and the status of life interest holders.
As to costs, the trustees had failed to engage properly at all with what were proper requests, and the claimant charities should be entitled to their costs. The claimants also sought an order disallowing the trustees an indemnity from the estate, and ‘In my judgment, notwithstanding the lack of participation or explanation on behalf of the Defendants, it is clear that the Second Defendant in failing to account to the Claimants over so many years acted for a benefit other than that of the estate, and in failing to take part in these proceedings at all acted unreasonably. I have no hesitation in saying that any costs incurred by the Second Defendant in the context of these proceedings, including the costs which I have ordered him to pay to the Claimants, were not ‘properly incurred’ within s 31(1) and CPR rule PD46 para 1.1, and hence he is not entitled to be reimbursed out of the trust fund in respect of them.’
Master Matthews said: ‘Every beneficiary is entitled to see the trust accounts, whether his interest is in possession or not’, but ‘There is some danger of misunderstanding here. When the books and cases talk about beneficiaries ‘entitlements to accounts’ or to trustees being ‘ready with their accounts’ they are not generally referring to annual financial statements such as limited companies and others carrying on business (and indeed some large trusts) commonly produced in the form of balance sheets and profit and loss accounts, usually through accountants, and – in the case of limited companies – filed at Companies House. Instead they are referring to the very notion of accounting itself. Trustees must be ready to account to their beneficiaries for what they have done with the trust assets. This may be done with formal financial statements, or with less formal documents, or indeed none at all. It is no answer for trustees to say that formal financial statements have not yet been produced by the trustees’ accountants.’

Master Matthews
[2016] EWHC 1948 (Ch)
Bailii
England and Wales
Citing:
Cited – Re Cowin 1886
. .
Cited – In re Tillott ChD 1892
The plaintiff was entitled under a will trust to a one twelfth share in the capital of the residue, contingently on the death of his mother, who was a life tenant. The residue included Bank of England Consols. He had already obtained from the court . .
Cited – In re Dartnall CA 1895
. .
Cited – Nestle v National Westminster Bank ChD 1988
The plaintiff was the remainder beneficiary under the will trust of her grandfather, who died in 1922. The trust fund was then worth about andpound;50,000. The last outstanding life interest under the trust was that of her father John, who died in . .
Cited – D v United Kingdom ECHR 1997
In the circumstances of the case, where the applicant was in the advanced stage of a terminal illness (AIDS), to implement a decision by the respondent to remove the appellant to St Kitts in the West Indies would be a violation of his rights under . .
Cited – Armitage v Nurse; etc CA 19-Mar-1997
A clause in a trust deed may validly excuse trustees from personal liability for even gross negligence. The trustee was exempted from liability for loss or damage ‘unless such loss or damage shall be caused by his own actual fraud’.
Held: The . .
Cited – Vadim Schmidt v Rosewood Trust Limited PC 27-Mar-2003
PC (Isle of Man) The petitioner sought disclosure of trust documents, as a beneficiary. Disclosure had been refused as he had not been a named beneficiary.
Held: Times had moved on, and trust documents had . .
Cited – O’Rourke v Darbishire HL 1920
Sir Joseph Whitworth had died in 1887. In 1884 he had made a will appointing three executors and leaving his residuary estate to charity. By a codicil made in 1885 he altered his will to leave his ultimate residue to his executors for their own . .
Cited – Burrows v Walls 10-Mar-1855
A testator, by his will, gave the residue of his property to three trustees, whom he appointed executors, upon trust to sell and invest the same and to pay the income thereof to his widow for life, and after her decease, to his children, who were . .
Cited – O’Rourke v Darbishire HL 1920
Sir Joseph Whitworth had died in 1887. In 1884 he had made a will appointing three executors and leaving his residuary estate to charity. By a codicil made in 1885 he altered his will to leave his ultimate residue to his executors for their own . .
Cited – Murphy v Murphy ChD 2-May-1998
Where a plaintiff could show that he might have some potential interest under a discretionary trust, the settlor could be obliged by the court to disclose the names and addresses of the settlement trustees. . .
Cited – Brittlebank v Goodwin 1868
A trustee is bound to inform a beneficiary, who, on attaining majority is entitled to share in a trust fund, of that interest . .
Cited – Heugh v Scard CA 1875
Sir George Jessel MR said: ‘In certain cases of mere neglect or refusal to furnish accounts, when the neglect is very gross or the refusal wholly indefensible, I reserve to myself the right of making the executor or trustee pay the costs of . .
Cited – In Re Skinner ChD 1904
A beneficiary of a will trust brought an action for an account, having had little or no accounting from the executors and trustees (one a professional solicitor, entitled to charge) since the testator died more than two years before the action was . .
Cited – Blades v Isaac and Another ChD 21-Mar-2016
Claim by beneficiary under discretionary trust.
Held: A trustee’s wrongful failure to provide information does not necessarily justify an adverse costs order. . .

Cited by:
Cited – Henchley and Others v Thompson ChD 16-Feb-2017
The Claimants sought an order directing the Defendant to provide a full account of his dealings with the assets of the two trusts as a trustee or as a de facto trustee.
Held: The court has a discretion whether or not to make an order for an . .

Lists of cited by and citing cases may be incomplete.

Trusts, Costs

Updated: 09 November 2021; Ref: scu.567848

Leeds City Council v Price and Others: QBD 4 Apr 2011

The council had successfully defended a case brought by the defendant under legal aid. The parties now disputed whether it could recover the costs from the Legal Service Commission. The LSC answered that it had not been given proper notice of the costs application and was not bound by it.
Held: The order for payment of the costs was revoked. But for the various Regulations, there was no power to recover costs from the LSC. The purported notice given by the Council was out of time and did not meet th enecessary requirements. The Order for payment obtained by the Council from the court ‘ was obtained as a result of a without notice application which did not contain full and frank disclosure by the Council of the dispute between the Council and the LSC. ‘

Behrens J
[2011] EWHC 849 (QB)
Bailii
Access to Justice Act 1999 11, Community Legal Service (Costs Protection) Regulations 2000 5, Community Legal Service (Costs) Regulations 2000 9
England and Wales
Citing:
Cited – Regina (Gunn) v Secretary of State for the Home Department Regina (Kelly) v Same Regina (Zahid Khan) v Same CA 14-Jun-2001
The new Regulations and court rules expressly reserved to a costs judge the decision about whether a costs order should be made against the Legal Services Commission. The former practice of the trial judge making this decision must no longer apply. . .

Lists of cited by and citing cases may be incomplete.

Legal Aid, Costs

Updated: 02 November 2021; Ref: scu.431737

Liddington v 2Gether NHS Foundation Trust: EAT 28 Jun 2016

Award of Costs Against ET litigant in person

EAT PRACTICE AND PROCEDURE – Costs
The appeal challenges a decision to award costs based on a finding of unreasonable conduct by the Claimant and a subsequent refusal to reconsider that Order.
Having dealt with a number of earlier Preliminary Hearings, the Employment Judge was familiar with the pleadings and the issues to be addressed and was in the best position to consider and determine whether the Claimant’s conduct was unreasonable when looked at in the round and in the knowledge of the issues that would have to be dealt with at a Full Hearing if it came to it. The Employment Judge expressly recognised that the standard of pleading expected of a lawyer did not apply to the Claimant and that she could not be expected to provide a detailed legal pleading. However, the Employment Judge concluded that the Claimant should have been able to articulate in layman’s terms what it is that was said or done, by whom and on what dates that formed the basis of her complaints. The Employment Judge found that the Claimant was not able to do this on 12 May 2015. She gave a few examples of this inability. She found that the Claimant could not identify the dates of four of the six protected acts referred to, nor the detriments relied upon, nor the names and characteristics of actual or hypothetical comparators for the direct and harassment discrimination claims. The Employment Judge held that the significance of the Claimant’s inability to relay the dates of the acts was highlighted in the hearing when she concluded that certain alleged detrimental acts pre-dated the protected acts relied on and thus could not be pursued. The Employment Judge concluded that, notwithstanding that the Claimant is a litigant in person and not to be held to the standards of a lawyer, given the number of earlier hearings at which detailed particulars were sought to be elicited from her, her inability to provide the particulars required at the hearing on 12 May 2015 amounted to unreasonable conduct.
The grounds disclosed no arguable error of law relating to either decision. The finding of unreasonable conduct was not based on inability alone. The decision is adequately reasoned and causation adequately identified. Nor was the high threshold for a perversity appeal even arguably established.

Simler DBE P J
[2016] UKEAT 0065 – 16 – 2806, [2016] UKEAT 0002 – 16 – 2806
Bailii, Bailii
England and Wales

Employment, Costs

Updated: 02 November 2021; Ref: scu.570974

Excalibur Ventures Llc v Texas Keystone Inc and Others: CA 18 Nov 2016

Excalibur had entered into a conditional fee agreement with its solicitors to suport its intended claim against the respondents. Funders had advanced some andpound;13m to take the mater forward.

Tomlinson, Gloster, David Richards LJJ
[2016] EWCA Civ 1144
Bailii
Senior Courts Act 1981 51(3)
England and Wales
Citing:
Cited – Hamilton v Al Fayed and Others (No 2) CA 17-May-2002
The claimant had lost a libel action and been bankrupted. The defendant sought to recover his costs from those who had financially supported the claimant. He now appealed a dismissal of his request for contributions.
Held: An order for the . .
Appeal from – Excalibur Ventures Llc v Texas Keystone Inc and Others ComC 3-Feb-2015
. .
Cited – Dymocks Franchise Systems (NSW) Pty Ltd v Todd and others (No. 2) PC 21-Jul-2004
PC (New Zealand) Costs were sought against a non-party, following an earlier determination by the Board.
Held: Jurisdiction to make such an order was not complete. Where the order sought was against a . .
Cited – Excalibur Ventures Llc v Texas Keystone Inc and Others ComC 28-Jun-2011
The court gave its reasons for the grant of an order restraining the claimant from also pursuing arbitration proceedings at the International Court of Arbitration.
Held: Gloster J was, found on the evidence then before her a strong arguable . .

Lists of cited by and citing cases may be incomplete.

Costs

Updated: 02 November 2021; Ref: scu.571747

Walker v Wilsher: CA 1889

Letters or conversations which were written or declared to be ‘without prejudice’ may not be taken into consideration in determining whether there is good cause for depriving a successful litigant of his costs.
Lord Esher MR said: ‘The letters and the interview were without prejudice, and the question is whether under such circumstances they could be considered in order to determine whether there was good cause or not for depriving the plaintiff of costs. It is, I think, a good rule to say that nothing which is written or said without prejudice should be looked at without the consent of both parties, otherwise the whole object of the limitation would be destroyed. I am, therefore, of opinion that the learned judge should not have taken these matters into consideration.’
Lindley LJ said: ‘What is the meaning of the words ‘without prejudice’? I think they mean without prejudice to the position of the writer of the letter if the terms he proposes are not accepted. If the terms proposed in the letter are accepted a complete contract is established, and the letter, although written without prejudice, operates to alter the old state of things and to establish a new one. A contract is constituted in respect of which relief by way of damages or specific performance would be given. Supposing that a letter is written without prejudice then, according both to authority and to good sense, the answer also must be treated as made without prejudice.’
and ‘No doubt there are cases where letters written without prejudice may be taken into consideration, as was done the other day in a case in which a question of laches was raised. The fact that such letters have been written and the dates at which they were written may be regarded, and in so doing the rule to which I have adverted would not be infringed. The facts may, I think, be given in evidence, but the offer made and the mode in which that offer was dealt with – the material matters, that is to say, of the letters – must not be looked at without consent.’
Bowen LJ said: ‘In my opinion it would be a bad thing and lead to serious consequences if the Courts allowed the action of litigants, on letters written to them ‘without prejudice’, to be given in evidence against them or to be used as material for depriving them of costs. It is most important that the door should not be shut against compromises, as would certainly be the case if letters written ‘without prejudice’ and suggesting methods of compromise were liable to be read when a question of costs arose.’ and ‘What is the meaning of the words ‘without prejudice’? I think they mean without prejudice to the position of the writer of the letter if the terms he proposes are not accepted. If the terms proposed in the letter are accepted a complete contract is established and the letter, although written without prejudice, operates to alter the old state of things and to establish a new one.’

Bowen LJ, Lord Esher MR, Lindley LJ
(1889) 23 QBD 335
England and Wales
Cited by:
Cited – Reed Executive Plc, Reed Solutions Plc v Reed Business Information Ltd, Reed Elsevier (Uk) Ltd, Totaljobs.Com Ltd CA 14-Jul-2004
Walker v Wilshire still Good Law
After successfully appealing, the defendant claimant argued for a substantial part of its costs, saying that the defendant had unreasonably refused ADR. To pursue this, it now sought disclosure of the details of the without prejudice negotiations . .
Cited – Rush and Tompkins Ltd v Greater London Council and Another HL 1988
Use of ‘Without Prejudice Save as to Costs”
A sub-contractor sought payment from the appellants under a construction contract for additional expenses incurred through disruption and delay. The appellants said they were liable to pay the costs, and were entitled to re-imbursement from the . .
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Applied – Stotesbury v Turner 1943
Without prejudice negotiations are, as a matter of public policy, to be protected from disclosure to the court seized of the dispute. An arbitrator has the same discretion as to costs as has a High Court judge. . .
Cited – Rush and Tomkins Ltd v Greater London Council HL 3-Nov-1988
The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the . .
Cited – Oceanbulk Shipping and Trading Sa v TMT Asia Ltd CA 15-Feb-2010
The parties had settled their disagreement, but now disputed the interpretation of the settlement. The defendant sought to be allowed to give in evidence correspondence leading up to the settlement which had been conducted on a without prejudice . .
Cited – Oceanbulk Shipping and Trading Sa v TMT Asia Ltd and Others SC 27-Oct-2010
The court was asked whether facts which (a) are communicated between the parties in the course of without prejudice negotiations and (b) would, but for the without prejudice rule, be admissible as part of the factual matrix or surrounding . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs

Leading Case

Updated: 01 November 2021; Ref: scu.199274

Medway Oil and Storage Co Ltd v Continental Contractors Ltd: HL 1929

The court set down the principles to be applied when apportioning costs between a claim and counterclaim. Where both the claim and the counter-claim are dismissed with costs, the amount that the Claimant will recover in defeating the counter-claim are the costs that arose solely defending the counter-claim, (for example counsel’s fee for settling the defence to counterclaim) together with costs that were common to both claim and counterclaim. Absent a special direction by the court as to the apportionment of costs between the parties, any such order made on a detailed assessment will produce an element of injustice between the parties in a case where the same issue arises on both claim and counterclaim. Viscount Haldane said: ‘The distinction, between division and apportionment may in certain circumstances be a thin one’ but it was fundamental.
There may be items which on their face are single but in reality double, that is, in part relate to the claim and in part relate to the counter-claim; and, will add, in part to one issue and in part to another: ‘In such cases there must be a division’.

Viscount Haldane
[1929] AC 88
England and Wales
Cited by:
Cited – Horth v Thompson QBD 6-Jul-2010
After a personal injury claim, the judge had apportioned liability and ordered each side to pay the costs of the other. The case had been allocated to the fast track.
Held: The appeal failed. The existence of the Conditional Fee Agreement did . .
Confirmed – Burchell v Bullard and others CA 8-Apr-2005
Each side had succeeded in part on their claims and counterclaims, but the Respondent was andpound;5,000 out of pocket. Each party had been ordered to pay the costs of the other.
Held: The appeal succeeded. The judge had correctly recognised . .
Cited – Parkes v Martin CA 9-Jul-2009
The claimant appealed against the costs order made after a trial following a road traffic accident, awarding blame as to 65% for the Claimant and 35% to the defendant. The Defendant had requested costs in that proportion. After reminding himself of . .

Lists of cited by and citing cases may be incomplete.

Costs

Leading Case

Updated: 01 November 2021; Ref: scu.420382

Thomson v Berkhamsted Collegiate School: QBD 2 Oct 2009

Costs were to be sought against third parties to the action. A pupil had taken court action against the school seeking damages, alleging that it had failed to protect him from bullying. His action was discontinued. The school now sought its costs (andpound;250,000) from his parents, who had funded their son’s claim. The school sought disclosure of various documents.
Held: The court had power to make any necessary ancillary orders in a costs application. General principles were set down: ‘i) The order for payment of costs by a non-party would always be exceptional and any application should be treated with considerable caution.
ii) The application should normally be determined by the trial judge who could give effect to any views he had expressed as to the conduct of the non-party without constituting bias or the appearance of bias.
iii) The mere fact that someone has funded proceedings would generally be insufficient to support an application that they pay the costs of the successful party. Pure funders, as described at the case of Hamilton v Al-Fayed No. 2 [2002] EWCA Civ 665 reported [2003] QB 117 at [40], will not normally have the discretion exercised against them. That definition of ‘pure funders’ means those with no personal interest in the litigation, who do not stand to benefit from it, are not funding it as a matter of business and in no way seek to control its course.
iv) It is relevant but not decisive that the defendant has warned the non-party of the intention to seek costs or that the non-party’s funding has caused the defendant to incur the costs it would not otherwise have had to incur;
v) The conduct of the non-party in the course of the litigation and other than as a pure witness of material fact is of relevance and potential weight.
vi) Most of the decided cases on the exercise of the court’s discretion under section 51 concerned commercial funders or corporate bodies closely associated with the party who incurred the costs liability which they were unable to satisfy. In the family context, the courts have been reluctant to impose third party costs orders against those family or friends who in the interests of access to justice assist a party to come to court for philanthropic and disinterested reasons.
vii) In determining these applications the court must exercise its case management powers to ensure that the application does not turn into satellite litigation that results in prolonged, complex and over-extended arguments about costs about costs. For that reason the inherent strength of the application is always a relevant factor.’
In this case the parents were not acting in a disinterested fashion. There was a reasonable prospect of the claim for third party costs succeeding, and appropriate disclosure was ordered.

Blake J
[2009] EWHC 2374 (QB), [2010] CP Rep 5
Bailii
Supreme Court Act 1981, Civil Procedure Rules 48.2
England and Wales
Citing:
Cited – Dymocks Franchise Systems (NSW) Pty Ltd v Todd and others (No. 2) PC 21-Jul-2004
PC (New Zealand) Costs were sought against a non-party, following an earlier determination by the Board.
Held: Jurisdiction to make such an order was not complete. Where the order sought was against a . .
Cited – Grecoair Inc v Tilling and others QBD 14-Jan-2009
The court has power to exercise disclosure orders in order to facilitate in an economical fashion a fair hearing of the application, although disclosure is often made without formal order. . .
Cited – PR Records Ltd v Vinyl 2000 Limited and others ChD 15-Jan-2008
The defendant in the main action sought a third party costs order. . .

Lists of cited by and citing cases may be incomplete.

Costs, Litigation Practice, Civil Procedure Rules

Updated: 01 November 2021; Ref: scu.375580

Barnes (As Former Court Appointed Receiver) v The Eastenders Group and Another: SC 8 May 2014

Costs of Wrongly Appointed Receiver

‘The contest in this case is about who should bear the costs and expenses of a receiver appointed under an order which ought not to have been made. The appellant, who is a former partner in a well known firm of accountants, was appointed to act as management receiver of the assets of a group of companies referred to as Eastenders on the application of CPS. The order was made under section 48 of the 2002 Act but was quashed on appeal.’
Held: The Receiver’s appeal against the refusal of the court to order payment by CPS succeeded.
At common law, a receiver was entitled to his costs from the estate under receivership, howver the issue here was as to whether the order was proportionate in this case under A1P1. The taking of property without compensation is, in general, a disproportionate interference with A1. In this case the company was not a defendant, and nor were the assets those of the defendant.
The Receiver having acted under appointent of and by agreement with the CPS, they were responsible.

Lady Hale, Deputy President, Lord Kerr, Lord Wilson, Lord Hughes, Lord Toulson
[2014] UKSC 26, [2014] WLR(D) 194, [2014] 2 WLR 1269, UKSC 2013/0006
Bailii, Bailii Summary, WLRD, SC Summary, SC
Proceeds of Crime Act 2002, European Convention on Human Rights P1 A1
England and Wales
Citing:
See Also – Eastenders Cash and Carry Plc and Another v Revenue and Customs Admn 4-Nov-2010
Applications for judicial review in relation to alcoholic goods detained by the Defendants on grounds of a suspicion that duty may not have been paid in respect of them.
Sales J said: ‘In my view, there is a clear reason why Parliament wished . .
See Also – Eastenders Cash and Carry Plc v Revenue and Customs FTTTx 29-Dec-2010
FTTTx Excise Duty – warehouse – application for registration as an owner of goods under Warehousekeepers and Owners of Goods Regulations 1999 (‘WOWGR’) – whether decision of HMRC could reasonably have been . .
See Also – Eastenders Cash and Carry Plc v South Western Magistrates’ Court Admn 22-Mar-2011
The claimant sought judicial review of decisions by the magistrates first to issue search warrants, and then to refuse to disclose the information on which it had been based.
Held: The documentation now having been disclosed the second part of . .
See Also – Eastenders Cash and Carry Plc and Others v HM Revenue and Customs CA 20-Jan-2012
The Court considered the lawfulness of the exercise of the power claimed by the Commissioners of Her Majesty’s Customs and Excise (HMRC) to detain goods temporarily for the purpose of investigating their status. . .
See also – First Stop Wholesale Ltd, Regina (on The Application of) v Revenue and Customs Admn 27-Mar-2012
The claimant sought judicial review of the defendant’s decisions to seize and detain alcoholic drinks from his business premises.
Held: Goods could not lawfully be detained under section 139(1) for the purpose of ascertaining whether the power . .
See Also – Eastenders Cash and Carry Plc v Revenue and Customs FTTTx 27-Mar-2012
FTTTx Procedure – costs – application for costs out of time – whether discretion to entertain an application should be exercised – Rule 5 (3) (a) Tribunal Rules 2009 – whether direction should be made to apply . .
See Also – Eastenders Cash and Carry Plc and Another v HM Revenue and Customs CA 22-May-2012
The appellants had succeeded in resisting proceedings commenced by the respondents for the seizure of goods. The respondent now argued that costs should not follow the event, asserting a statutory bar. The appellant additionally argued that any such . .
See Also – First Stop Wholesale Ltd, Regina (on The Application of) v Revenue and Customs Admn 16-Jul-2012
The applicant challenged the court’s refusal to pay its costs after a finding that the seizure of goods by the respondent had been unlawful. The defendant argued that section 144 of the 1979 Act protected it against such an order.
Held: . .
See Also – First Stop Wholesale Ltd R (on The Application of) v Revenue and Customs Admn 5-Oct-2012
Claim for judicial review of various seizure notices issued by the defendants. The question was whether a statement in the notices that ‘no evidence of UK duty payment has been provided’ was a sufficient statement of the grounds for seizing the . .
See Also – Crown Prosecution Service v The Eastenders Group and Another CACD 23-Nov-2012
‘application by the CPS for permission to appeal against . . orders made . . in the Central Criminal Court on 8 May 2012. I use the expression ‘in form’ because as will appear there are issues as to the jurisdiction of the court. The case raises . .
Cited – HM Revenue and Customs v First Stop Wholesale Ltd and Another CA 12-Mar-2013
‘Appeals . . against orders . . arising out of the detention . . by HMRC of large quantities of alcohol from the warehouse and other premises of First Stop, the respondent to the first two appeals and the appellant in the third. At the time the . .
Cited – Capewell v Commissioners for HM Customs and Excise and Sinclair CA 2-Dec-2004
The court approved guidelines for the appointment and remuneration of a receiver appointed under the 1988 Act. . .
Cited – Capewell v Revenue and Customs and Another HL 31-Jan-2007
The defendant appealed against an order regarding the remuneration of a receiver appointed to administer a restraint order placed on the assets of the defendant under the 1988 Act on the basis of an allegation that the defendant had been involved in . .
Cited – Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd HL 15-Jun-1942
A contract for the supply by the respondents of special machinery to be manufactured by them was treated as an ordinary contract for the sale of goods. It began valid, but suffered frustration by the outbreak of war.
Held: Lord Wright restated . .
Cited – Sporrong and Lonnroth v Sweden ECHR 23-Sep-1982
Balance of Interests in peaceful enjoyment claim
(Plenary Court) The claimants challenged orders expropriating their properties for redevelopment, and the banning of construction pending redevelopment. The orders remained in place for many years.
Held: Article 1 comprises three distinct . .
Cited – James and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
Cited – Raimondo v Italy ECHR 22-Feb-1994
The applicant was arrested and placed under house arrest on charges relating to his association with the Mafia. As an interim measure some of his property was seized. The proceedings ended in his acquittal. He claimed that the seizure of his . .
Cited – Benham v United Kingdom ECHR 8-Feb-1995
Legal Aid was wrongfully refused where a tax or fine defaulter was liable to imprisonment, and the lack of a proper means enquiry, made imprisonment of poll tax defaulter unlawful. A poll tax defaulter had been wrongly committed to prison by . .
Cited – In Re Andrews CA 25-Feb-1999
The defendant and his son had been charged with offences relating to their joint business, and restraint orders were made. The son was convicted, but the defendant was acquitted and awarded his costs out of central funds. The taxing officer held . .
Cited – Roxborough v Rothmans of Pall Mall Australia Ltd 6-Dec-2001
High Court of Australia – Rothmans were licensed to act as wholesalers of tobacco products under a New South Wales statute. They sold products to retailers for a price including licence fees, which were in reality a form of indirect taxation, . .
Cited – Hughes and Another v Commissioners of Customs and Excise etc CA 20-May-2002
N was charged with VAT fraud. He was the joint owner of a company with his brother T each holding 50% of the shares. T was never charged. A restraint and receivership order was made against N, preventing the company from dealing in any way with its . .
Cited – Crown Prosecution Service v Compton, Comptons of Brighton Limited, Coyne, Compton CA 27-Nov-2002
Appeal against refusal of restraint order.
Held: It is enough that on the documents a good arguable case arises for treating the relevant assets as the realisable property of the defendant.
Lord Justice Simon Brown said: ‘All that I . .
Cited – Frizen v Russia ECHR 24-Mar-2005
Violation of P1-1. A confiscation order made by a Russian criminal court was unlawful and involved a violation of the applicant’s rights under A1P1. The husband was convicted of fraud. She was not herself charged with any criminal offence. After his . .
Cited – Stanford International Bank Ltd, Re CA 25-Feb-2010
Hughes LJ said: ‘it is essential that the duty of candour laid upon any applicant for an order without notice is fully understood and complied with. It is not limited to a duty not to misrepresent. It consists in a duty to consider what any other . .
Cited – Sinclair In her Capacity As the Former Receiver v Glatt Executors of Estate of Glatt and Glatt and Glatt CA 13-Mar-2009
The court considered the recovery of expenses by a receiver appointed to administer assets of money launderer. The receiver sought to exercise a lien over assets held for the prisoner by the prison to recover the costs of the receivership after the . .

Cited by:
See Also – Eastenders Cash and Carry Plc and Others, Regina (on The Application of) v Revenue and Customs SC 11-Jun-2014
Alcoholic drinks had been seized by the respondents pending further enquiries with a view to a possible forfeiture, then held and returned but only under court order. The company had complained that the detention of the goods was unlawful. The . .

Lists of cited by and citing cases may be incomplete.

Customs and Excise, Costs, Human Rights, Criminal Practice

Leading Case

Updated: 01 November 2021; Ref: scu.524663

Myers v Elman: HL 1939

The solicitor had successfully appealed against an order for a contribution to the other party’s legal costs, after his clerk had filed statements in court which he knew to be misleading. The solicitor’s appeal had been successful.
Held: The Court of Appeal’s decision was reversed. The plaintiff was not asking the court to exercise its disciplinary jurisdiction over officers of the court but, rather, its jurisdiction to order a legal practitioner to pay costs by reason of some misconduct, default or negligence in the course of proceedings, a jurisdiction which could be exercised where the solicitor was merely negligent, so that the solicitor could not ‘shelter himself behind a clerk, for whose actions within the scope of his authority he is liable’
A solicitor’s duty advising his client on discovery is to investigate the position carefully and to ensure so far as is possible that full and proper disclosure of all relevant documents is made. He has overall responsibility for the process and should not leave it all to his client. The House considered and set out the court’s powers to disallow an award of costs, or to award them to be paid by the solicitor personally: ‘The court’s jurisdiction to make a wasted costs order against a solicitor is founded on breach of the duty owed by the solicitor to the court to perform his duty as an officer of the court in promoting within his own sphere the cause of justice.’
and ‘The underlying principle is that the Court has a right and a duty to supervise the conduct of its solicitors, and visit with penalties any conduct of a solicitor which is of such a nature as to tend to defeat justice in the very cause in which he is engaged professionally, as was said by Abinger C.B. in Stephens v. Hill. (1) The matter complained of need not be criminal. It need not involve peculation or dishonesty. A mere mistake or error of judgment is not generally sufficient, but a gross neglect or inaccuracy in a matter which it is a solicitor’s duty to ascertain with accuracy may suffice. Thus, a solicitor may be held bound in certain events to satisfy himself that he has a retainer to act, or as to the accuracy of an affidavit which his client swears. It is impossible to enumerate the various contingencies which may call into operation the exercise of this jurisdiction. It need not involve personal obliquity. The term professional misconduct has often been used to describe the ground on which the Court acts. It would perhaps be more accurate to describe it as conduct which involves a failure on the part of a solicitor to fulfil his duty to the Court and to realize his duty to aid in promoting in his own sphere the cause of justice. This summary procedure may often be invoked to save the expense of an action. Thus it may in proper cases take the place of an action for negligence, or an action for breach of warranty of authority brought by the person named as defendant in the writ. The jurisdiction is not merely punitive but compensatory. The order is for payment of costs thrown away or lost because of the conduct complained of. It is frequently, as in this case, exercised in order to compensate the opposite party in the action.’
Viscount Maugham said: ‘My Lords, as I understand the judgment of Greer and Slesser L.JJ., those learned judges were of opinion that the jurisdiction of the Court to order a solicitor to pay the cost of proceedings is a punitive power resting on the personal misconduct of the solicitor and precisely similar to the power of striking a solicitor off the rolls or suspending him from practice . . The jurisdiction to strike off the rolls or to suspend a solicitor seems to me to be of a very different character. Apart from the statutory grounds it is of course true that a solicitor may be struck off the rolls or suspended on the ground of professional misconduct, words which have been properly defined as conduct which would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency: in Re a Solicitor. Ex parte The Law Society (1912) 1 K.B. 302. Mere negligence even of a serious character, will not suffice.’ and ‘These cases did not depend on disgraceful or dishonourable conduct by the solicitor, but on mere negligence of a serious character, the result of which was to occasion useless costs to the other parties . . I think the authorities show that the jurisdiction may be exercised where the solicitor is merely negligent.’
Lord Wright said: ‘A solicitor was long ago held to be an officer of the Court on the Roll of which he was entered and as such to be subject to the discipline of that Court. The Court might strike him off or suspend him . . But alongside the jurisdiction to strike off the Roll or to suspend, there existed in the Court the jurisdiction to punish a solicitor or attorney by ordering him to pay costs, sometimes the costs of his own client, sometimes those of the opposite party, sometimes, it may be, of both. The ground of such an order was that the solicitor had been guilty of professional misconduct (as it is generally called) not, however, of so serious a character as to justify striking him off the Roll or suspending him.’
‘The underlying principle is that the court has a right and a duty to supervise the conduct of its solicitors, and visit with penalties any conduct of a solicitor which is of such a nature as to tend to defeat justice in the very cause in which he is engaged professionally as was said by Abinger C.B. in Stevens v. Hill [(1842) 10 M.and W. 28]. The matter complained of need not be criminal. It need not involve peculation or dishonesty. A mere mistake or error of judgment is not generally sufficient, but a gross neglect or inaccuracy in a matter which it is a solicitor’s duty to ascertain with accuracy may suffice. Thus, a solicitor may be held bound in certain events to satisfy himself that he has a retainer to act, or as to the accuracy of an affidavit which his client swears. It is impossible to enumerate the various contingencies which may call into operation the exercise of this jurisdiction. It need not involve personal obliquity. The term ‘professional misconduct’ has often been used to describe the ground on which the Court acts. It would perhaps be more accurate to describe it as conduct which involves a failure on the part of a solicitor to fulfil his duty to the Court and to realize his duty to aid in promoting in his own sphere the cause of justice. This summary procedure may often be invoked to save the expense of an action Thus, it may, in proper cases, take the place of an action for negligence, or an action for breach of warranty of authority brought by the person named as defendant in the writ. The jurisdiction is not merely punitive, but compensatory. The order is for payment of costs thrown away or lost because of the conduct complained of. It is frequently, as in this case, exercised in order to compensate the opposite party in the action.’
Lord Wright went on to say that the jurisdiction applied for the costs of either party, and was as to behaviour which was professional misconduct falling short of what might lead to a striking off, and: ‘The underlying principle is that the Court has a right and a duty to supervise the conduct of its solicitors and visit with penalties any conduct of a solicitor which is of such a nature as to tend to defeat justice in the very cause in which he is engaged professionally, as was said by Abinger CB in Stephens v Hill (1842) 10 M and W 28. The matter complained of need not be criminal. It need not involve peculation or dishonesty. A mere mistake or error of judgment is not generally sufficient, but a gross neglect or inaccuracy in a matter which it is a solicitor’s duty to ascertain with accuracy may suffice. Thus, a solicitor may be held bound in certain events to satisfy himself that he has a retainer to act, or as to the accuracy of an Affidavit which his client swears. It is impossible to enumerate the various contingencies which may call into operation the exercise of this jurisdiction. It need not involve a personal obliquity. The term professional misconduct has often been used to describe the ground on which the Court acts. It would perhaps be more accurate to describe it as conduct which involves a failure on the part of a solicitor to fulfil his duty to the Court and to realise his duty too. The summary procedure may often be invoked to save the expense of an action. Thus it may in proper cases take the place of an action for negligence or an action for breach of warranty of authority brought by the person named as Defendant in the writ. The jurisdiction is not merely punitive but compensatory. The order is for payment of costs thrown away or lost because of the conduct complained of. It is frequently, as in this case, exercised in order to compensate the opposite party to the action.’
and ‘The summary jurisdiction thus involved a discretion both as to procedure and as to substantive relief ‘
Lord Atkin said: ‘From time immemorial judges have exercised over solicitors . . a disciplinary jurisdiction in cases of misconduct . . If the Court is deceived or the litigant is improperly delayed or put to unnecessary expense, the solicitor on the record will be held responsible and will be admonished or visited with such pecuniary penalty as the Court thinks necessary in the circumstances of the case . . What is the duty of the solicitor? He is at the early stage of the proceedings engaged in putting before the court on the oath of his client information which may afford evidence at the trial. Obviously he must explain to his client what is the meaning of relevance: and equally obviously he must not necessarily be satisfied by the statement of his client that he has no documents or no more than he chooses to disclose. If he has reasonable ground for supposing that there are others, he must investigate the matter; but he need not go beyond taking reasonable steps to ascertain the truth.’
As to the awarding of costs against a solicitor, he considered this to be a disciplinary jurisdiction arising by the solicitor’s failure in its duty to the court itself, and not a form of summary jurisdiction in contract or tort in awarding compensation. As to the standard of misconduct: ‘by misconduct is meant something which would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute; for example wilfully misleading the Court in the conduct of a case.’

Viscount Maugham, Lord Wright and Lord Porter
[1940] AC 282, [1939] 4 All ER 484, (1939) 56 TLR 177, (1939) 162 LT 113, (1939) 109 LJKB 105
England and Wales
Citing:
Appeal from – Myers v Rothfield CA 1938
The solicitor had left the conduct of proceedings largely to his managing clerk. The trial judge held that the solicitor had not been guilty of professional misconduct in allowing the defences to be delivered, but that he had been guilty of such . .

Cited by:
Cited – Ridehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .
Cited – Hedrich and Another v Standard Bank London Ltd and Another CA 30-Jul-2008
Wall LJ said: ‘A cigarette packet carries the warning that smoking can kill you. Solicitors’ standard terms of business should carry a warning that litigation can cost you. For litigation is an inherently risky business: there are no certain . .
Cited – Nelson v Nelson CA 6-Dec-1996
A solicitor appealed against an order requiring him to contribute to the costs of Mareva injunction applied for on behalf of his bankrupt client.
Held: Solicitors were not liable in costs personally for starting proceedings on behalf of a . .
Cited – Ulster Bank Ltd v Fisher and Fisher ChNI 21-Dec-1998
. .
Cited – Medcalf v Mardell, Weatherill and Another HL 27-Jun-2002
The appellants were barristers against whom wasted costs orders had been made. They appealed. They had made allegations of fraud in pleadings, but without being able to provide evidence to support the allegation. This was itself a breach of the Bar . .
Cited – Dempsey v Johnstone CA 30-Jul-2003
The solicitors appealed against a wasted costs order. . .
Cited – Harley v McDonald; Glasgow Harley (A Firm) v McDonald PC 10-Apr-2001
(New Zealand) A solicitor’s duty to the court was not breached merely because he had, on his client’s instructions, pursued a case which was hopeless. It was also inapposite to penalize him for work undertaken before the court had warned him of the . .
Cited – Al-Kandari v J R Brown and Co CA 1988
A solicitor had undertaken to look after certain passports, but failed to do so. The husband had twice previously kidnapped his children whose custody was an issue before the court. Once the husband regained the passports, he again fled with the . .
Cited – Taylor and Taylor v Ribby Hall Leisure Limited and North West Leisure Holdings Limited CA 6-Aug-1997
In supervisory proceedings against lawyers, claims of abuse of process are to be pursued at the substantive hearing and not by way of pre-emptive applications. Delay in bringing an application to enforce a solicitor’s undertaking can be relevant to . .
Cited – Wagstaff v Colls and Another CA 2-Apr-2003
The action had been stayed by an order on agreed terms. The claimant sought a wasted costs order against the defendants’ solicitors on the ground that they had witheld certain facts during the litigation. The defendants argued that they should first . .
Cited – Sprecher Grier Halberstam Llp and Another v Walsh CA 3-Dec-2008
Ward LJ said: ‘a man cannot be deceived if he knows the truth’ . .
Cited – In re P (a Barrister) (Wasted Costs Order) CACD 23-Jul-2001
The procedure for making a wasted costs order was primarily compensatory, for costs wasted, rather than punitive for malpractice. The procedure is summary, and more in line with applications for costs made under the Civil Procedure Rules rule 44.3, . .
Cited – Phillips, Harland (Suing As Administrators of the Estate of Christo Michailidis), Papadimitriou v Symes (A Bankrupt) Robin Symes Limited (In Administrative Receivership) Jean-Louis Domercq ChD 20-Oct-2004
Dr Zamar had given expert evidence in the principal proceedings. It was now said that that evidence had not been given in the proper way, and a remedy was now sought. . .
Cited – Axa Sun Life Services Plc v Cannon and Another QBD 30-Oct-2007
. .
Cited – Mitchells Solicitors v Funkwerk Information Technologies York Ltd EAT 8-Apr-2008
EAT PRACTICE AND PROCEDURE: Costs
After the Claimant’s discrimination claim failed the Respondents sought an order for costs against her or a wasted costs order against her solicitors for pursuing a hopeless . .
Cited – Angel Solicitors v Jenkins O’Dowd and Barth ChD 19-Jan-2009
Actions were brought to enforce undertakings given by solicitors to redeem mortgages on the sale of properties, and as to redemption figures provided by lenders who then refused to release the properties. The solicitors had replied to standard form . .
Cited – Geoffrey Silver and Drake v Baines (trading as Wetherfield Baines and Baines) (a firm) CA 1971
The court’s summary jurisdiction over solicitors is extraordinary, and therefore should only be exercised sparingly (i) if justice requires this procedure to be adopted, as opposed to some other procedure.
There is a recognised jurisdiction to . .
Cited – Coll v Floreat Merchant Banking Ltd and Others QBD 3-Jun-2014
The court was asked whether it was possible to bring contempt proceedings against a solicitor for the breach of an undertaking other than one given to the court. The parties had been employee and employer. On the breakdown of that relationship, the . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Leading Case

Updated: 01 November 2021; Ref: scu.279003

Re Buckton, Buckton v Buckton: ChD 1907

An application was made for the payment of the costs of the action from the deceased’s estate.
Held: Kekewich J identified three situations where an issue might arise about the payment of legal costs out of a fund. First, a trustee may seek guidance from the Court in order to ascertain the interests of the beneficiaries: and see Rules of the Supreme Court 1971, O 66 r 9. Second, beneficiaries may apply to the court by reason of some difficulty of construction or administration that would have justified an application by the trustee, but where it was not convenient for the trustee to apply. In both of those situations, the costs of all parties can be characterised as necessarily incurred for the benefit of the estate. Provided the application was not, in substance, unreasonable, the court might direct costs to be taxed as between solicitor and client and paid out of the estate. Mr Justice Kekewich recorded that: ‘In a large proportion of the summonses adjourned into court for argument the applicants are trustees of a will or settlement who ask the court to construe the instrument of trust for their guidance and in order to ascertain the interests of the beneficiaries or else ask to have some question determined which has arisen in the administration of the trusts. ‘ In such cases the costs of all parties are necessarily incurred for the benefit of the estate and the court directed them to be taxed as between solicitor and client and paid out of the estate.

Kekewich J
[1907] 2 Ch 406
England and Wales
Cited by:
Cited – Jump and Another v Lister and Another ChD 12-Aug-2016
Omnibus Survivorship Clauses
Wills for two people hade been drafted with survivorship clauses which provided for others according to the order in which they died, but in the event, having died together it had been impossible to say which died first. The parties disputed the . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Costs

Leading Case

Updated: 31 October 2021; Ref: scu.570852

Yagomba v AXA UK Plc and 16 Others: EAT 9 Feb 2016

EAT Practice and Procedure: Withdrawal – PRACTICE AND PROCEDURE – Costs
A late withdrawal of an appeal that became academic some time before the hearing, led to costs applications by both sides.
The Appellant’s costs application failed. The Appellant’s conduct in pursuing the appeal after it had become academic was unreasonable. He was ordered to pay a proportion of the costs claimed by the Respondent.

Simler DBE P J
[2016] UKEAT 0281 – 15 – 0902
Bailii
England and Wales

Employment, Costs

Updated: 31 October 2021; Ref: scu.562543

McDonnell v McDonnell: CA 1977

In family proceedings, a costs letter had been written in the form suggested in Calderbank.
Held: The court accepted and endorsed the practice suggested by Cairns LJ. Ormrod LJ said: ‘The important factor which distinguishes this case is the fact that the appellant husband’s solicitors took advantage of a recent decision of this court in Calderbank v. Calderbank. On December 16, 1975, shortly after serving the notice of appeal, they wrote a letter to the wife’s solicitors offering to withdraw the appeal altogether if the wife would agree to a modification of Mrs. Justice Lane’s order in respect of the house. In accordance with the procedure suggested in Calderbank, they headed the letter ‘Without Prejudice’ but reserved the right to bring it to the attention of the court after judgment on the question of costs.’
and ‘Clearly this is a very important consideration in exercising the court’s discretion with regard to costs.It would be wrong, in my judgment, to equate an offer of compromise in proceedings such as these [ancillary proceedings following a divorce] precisely to a payment into court. I see no advantage in the court surrendering its discretion in these matters as it has to all intents and purposes done where a payment into court has been made. A Calderbank offer should influence but not govern the exercise of the discretion. The question to my mind is whether, on the basis of the facts known to the wife and her advisers and without the advantage of hindsight, she ought reasonably to have accepted the proposals in the letter of December 16, bearing always in mind the difficulty of making accurate forecasts in cases such as this. On the other hand, parties who are exposed to the full impact of costs need some protection against those who can continue to litigate with impunity under a civil aid certificate.’
Ormrod LJ
[1977] 1 WLR 34
England and Wales
Citing:
Approved – Calderbank v Calderbank CA 5-Jun-1975
Letter Without Prejudice Save as to Costs
Husband and wife disputed provision under 1973 Act, and a summons under section 17 of the 1882 Act. The wife had offered to transfer a house to H occupied by his mother, worth about pounds 12,000, in return for him leaving the matrimonial home. He . .

Cited by:
Cited – Butcher v Wolfe and Another CA 30-Oct-1998
The parties had been partners in a family farm. On dissolution there was a dispute as to apportionment of costs. An offer had been ‘without prejudice save as to costs’.
Held: Costs may be denied to a plaintiff who had received a Calderbank . .
Cited – Norris v Norris, Haskins v Haskins CA 28-Jul-2003
The court considered how orders for costs were to be made in ‘big money’ cases.
Held: There were two sets of rules. Cases should be considered by first applying the Civil Procedure Rules. This would allow the court to consider the full range . .
Cited – Gojkovic v Gojkovic (No 2) CA 1-Apr-1991
In ancillary relief proceedings, the husband had not made frank disclosure of his assets. The final Calderbank offer of andpound;600,000 was made only the day before the substantive hearing. The offer was rejected. The judge awarded the wife a lump . .
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.186057

Norris v Norris, Haskins v Haskins: CA 28 Jul 2003

The court considered how orders for costs were to be made in ‘big money’ cases.
Held: There were two sets of rules. Cases should be considered by first applying the Civil Procedure Rules. This would allow the court to consider the full range of circumstances of each case. The court required a full discretion, and that should be retained. When looking at Calderbank offers, the court could make fuller use of the provisions of the 1999 Rules, GW -v- RW needs rethinking, and the rules should be amended.
Dame Butler Sloss, Thorpe and Mantell LJJ
[2003] EWCA Civ 1084, Times 26-Aug-2003
Bailii
Family Proceedings (Amendment No 2) Rules 1999 (1999 No 3491) 2.69B, Civil Procedure Rules 44.3
England and Wales
Citing:
Doubted – GW v RW (Financial Provision: Departure from Equality) FD 18-Mar-2003
An entitlement to an equal division must reflect not only the parties’ respective contributions ‘but also an accrual over time’, and it would be ‘fundamentally unfair’ that a party who has made domestic contributions during a marriage of 12 years . .
Cited – Gojkovic v Gojkovic (No 2) CA 1-Apr-1991
In ancillary relief proceedings, the husband had not made frank disclosure of his assets. The final Calderbank offer of andpound;600,000 was made only the day before the substantive hearing. The offer was rejected. The judge awarded the wife a lump . .
Cited – Calderbank v Calderbank CA 5-Jun-1975
Letter Without Prejudice Save as to Costs
Husband and wife disputed provision under 1973 Act, and a summons under section 17 of the 1882 Act. The wife had offered to transfer a house to H occupied by his mother, worth about pounds 12,000, in return for him leaving the matrimonial home. He . .
Cited – McDonnell v McDonnell CA 1977
In family proceedings, a costs letter had been written in the form suggested in Calderbank.
Held: The court accepted and endorsed the practice suggested by Cairns LJ. Ormrod LJ said: ‘The important factor which distinguishes this case is the . .
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Cited – Butcher v Wolfe and Another CA 30-Oct-1998
The parties had been partners in a family farm. On dissolution there was a dispute as to apportionment of costs. An offer had been ‘without prejudice save as to costs’.
Held: Costs may be denied to a plaintiff who had received a Calderbank . .
Cited – Singer (formerly Sharegin) v Sharegin 1984
In family proceedings, the starting point for the award of costs is that they prima facie follow the event but that presumption may be displaced much more easily than, and in circumstances which would not apply, in other divisions of the High Court. . .

Cited by:
Cited – Vaughan v Vaughan CA 2-Nov-2007
H appealed an ancillary relief order giving certain extra rights in the family property on its sale.
Held: ‘the case demonstrates that, in an ancillary relief appeal, even the most conscientious appellate judge can fall into error if, having . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.184906

Francis Hoff and others v Mary Atherton: ChD 2004

A challenge to testamentary capacity falls within the second exception in Spiers v English and not the first.
Nicholas Warren QC
[2004] EWHC 2007 (Ch)
England and Wales
Citing:
Cited – Re Cutliffe’s Estate CA 1958
In attacking the will, the unsuccessful defendants had pleaded undue influence as well as lack of due execution and want of knowledge and approval, but their evidence had been disbelieved. They complained that in awarding costs against them the . .

Cited by:
Appeal from – Hoff and others v Atherton CA 19-Nov-2004
Appeals were made against pronouncements for the validity of a will and against the validity of an earlier will. The solicitor drawing the will was to receive a benefit, and had requested an independent solicitor to see the testatrix and ensure that . .

Lists of cited by and citing cases may be incomplete.
Updated: 08 October 2021; Ref: scu.263528

Plevin v Paragon Personal Finance Ltd: SC 29 Mar 2017

The court had ordered the respondent to pay the claimant’s costs. These were high because the solicitors had acted under a conditional fee agreement, and disproportionate to the funds at issue. The respondents challenged assignments of the original CFA.
Held: The appeal failed. Unless the effect of the deeds was to discharge the original CFA and replace it with new agreements made at the dates of the deeds, the success fee may properly be included in the costs order. Whether a variation amends the principal agreement or discharges and replaces it depends on the intention of the parties. The deeds of variation were not a sham. An amendment of the existing CFA is a natural way of dealing with further proceedings in the same action. They therefore take effect according to their terms.
‘proceedings’ is not a defined term in the legislation, nor is it a term of art under the general law. Its meaning must depend on its statutory context and on the underlying purpose of the provision in which it appears, so far as that can be discerned.
If there had been ATE cover in respect of liability for the costs of the trial, the insured is entitled after the commencement date to take out further ATE cover for appeals and to include them in his assessable costs under the 1999 costs regime.
Lady Hale, Deputy President, Lord Clarke, Lord Sumption, Lord Carnwath, Lord Hodge
[2017] UKSC 23, [2017] 1 WLR 1249, [2018] 1 All ER 292, [2017] WLR(D) 223, [2017] 2 Costs LO 247, UKSC 2014/0037
Bailii, WLRD, Bailii Summary, SC, SC Summary, SC Summary video, SC 2017 Feeb 08 am Video
Access to Justice Act 1999 27 58 58A, Legal Aid, Sentencing and Punishment of Offenders Act 2012, Courts and Legal Services Act 1990
England and Wales
Citing:
Main judgment – Plevin v Paragon Personal Finance Ltd SC 12-Nov-2014
PPI Sale – No Recovery from Remote Parties
The claimant sought repayment of payment protection insurance premiums paid by her under a policy with Norwich Union. The immediate broker arranging the loan was now insolvent, and she sought repayment from the second and other level intermediaties. . .
Cited – Masson, Templier and Co v De Fries CA 26-Feb-1910
Upon interpleader proceedings in the county court with regard to the title to goods taken in execution the claimant succeeded. The county court judge gave the judgment creditors leave to appeal to the Divisional Court upon condition that, if . .
Cited – Morris v Baron and Co HL 1918
The House drew a distinction between a variation of a contract required to be evidenced in writing, and the rescission (or discharge) of such a contract. The former was itself required to be evidenced in writing; the latter was not.
Lord . .
Cited – Wright v Bennett 1948
. .
Cited – BPE Solicitors and Another v Gabriel SC 17-Jun-2015
Application for directions in a pending appeal. The claimant alleged negligence against his former solicitors. After his successful claim was substantially overturned on appeal, he was made bankrupt.
Held: If the trustee adopted and pursued . .
Cited – Hawksford Trustees Jersey Ltd v Stella Global Uk Ltd and Another CA 19-Jul-2012
For the purpose of section 29 of the Access to Justice Act 1999, the costs incurred in respect of an ATE premium were recoverable only in the proceedings to which the policy related, ie as part of the costs of the trial if the policy related only to . .
Cited – Goldstein v Conley CA 4-May-2001
‘ proceedings at first instance and in this court are ordinarily treated as separate proceedings and in my judgment they support the conclusion that the costs of and incidental to one are not ordinarily treated as the costs of and incidental to the . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 September 2021; Ref: scu.581274

BPE Solicitors and Another v Gabriel: SC 17 Jun 2015

Application for directions in a pending appeal. The claimant alleged negligence against his former solicitors. After his successful claim was substantially overturned on appeal, he was made bankrupt.
Held: If the trustee adopted and pursued the action, but lost, he would not become personally liable for the costs in the lower courts.
Lord Mance, Lord Sumption, Lord Carnwath, Lord Toulson, Lord Hodge
[2015] UKSC 39, [2015] 4 Costs LO 467, [2015] WLR(D) 259, [2015] AC 1663, [2015] 4 All ER 672, [2015] BPIR 779, [2015] 3 WLR 1, UKSC 2014/0026
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Video
Constitutional Reform Act 2005 40(5), upreme Court Rules 2009 46
England and Wales
Citing:
Appeal from – Gabriel v Little and Others CA 22-Nov-2013
The claimant sought repayment of sums loaned to the defendant by them under a facility letter supported by a legal charge. The charge had been enforced but the sums realised had been insufficient. . .
Cited – Borneman v Wilson CA 1884
The Wilsons, father and son, had acted as commercial agents of one Borneman. He began an action against them in the Chancery Division for an account of their dealings with his goods and obtained interlocutory relief on motion including an injunction . .
Cited – School Board for London v Wall Brothers CA 1891
. .
Cited – Heath v Tang, Stevens v Peacock CA 11-Aug-1993
The bankrupt applicants each applied to the Court of Appeal for leave to appeal against the judgment for a liquidated sum on which the bankruptcy petition had been based. In the first case, the trustee in bankruptcy indicated his unwillingness to . .
Cited – Trustee of Property of Vickery (a Bankrupt) v Modern Security Systems Limited CA 15-Oct-1997
A trustee in bankruptcy will be treated as the party if he has in fact adopted the proceedings by conducting the litigation, even if there has been no formal substitution . .
Cited – In re Bluck, Ex parte Bluck 1887
The discretionary character of a costs order meant that it was not even a contingent liability until the order had actually been made . .
Cited – In re A Debtor (No 68 of 1911) 1911
. .
Cited – In re Pitchford 11-Jan-1924
. .
Cited – Aiden Shipping Co Ltd v Interbulk Ltd (The ‘Vimeira’) HL 1986
Wide Application of Costs Against Third Party
A claim had been made against charterers by the ship owners, and in turn by the charterers against their sub-charterers. Notice of motion were issued after arbitration awards were not accepted. When heard, costs awards were made, which were now . .
Cited – Glenister v Rowe CA 21-Apr-1999
The claimant sued for breach of trust. The action was re-instated after being struck out for want of prosecution, but in the meantime the defendant had been made bankrupt and then discharged from bankruptcy. An order for costs was then made which . .
Cited – In re Nortel Companies and Others SC 24-Jul-2013
The court was asked as to the interrelationship of the statutory schemes relating to the protection of employees’ pensions and to corporate insolvency.
Held: Liabilities which arose from financial support directions or contribution notices . .

Cited by:
Cited – Plevin v Paragon Personal Finance Ltd SC 29-Mar-2017
The court had ordered the respondent to pay the claimant’s costs. These were high because the solicitors had acted under a conditional fee agreement, and disproportionate to the funds at issue. The respondents challenged assignments of the original . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 September 2021; Ref: scu.549064

Free and others v British Steel Plc and Another: SCS 18 Jul 2003

(Outer House) The pursuer had sought damages from the defender, but failed to submit the claim for expenses. The defenders said they were prejudiced by the delay.
Held: ‘Comparing the prejudice the pursuers would suffer, were the motion to be refused, with that which the defenders will face, if the motion is granted, I am satisfied that I should exercise my discretion in favour of the pursuers and grant the motion.’
Lord Mackay Of Drumadoon
[2003] ScotCS 205
Bailii
Scotland
Citing:
Cited – UCB Bank Plc v Dundas and Wilson SCS 1990
It would not be competent for the Court of Session to restrict the pursuers’ entitlement to a fraction or percentage of the sums brought out as being payable in terms of the accounts, after they had been taxed by the Auditor. . .
Cited – William Copland Taylor v Marshalls Food Group (2) OHCS 6-Nov-1998
The First Division held that section 5 had not authorised the Court to enact a Rule of Court that entitled a pursuer, who had lodged and beaten a ‘pursuer’s offer’, to payment of a sum equal to the taxed amount of the expenses of process. The Rule . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 August 2021; Ref: scu.184667

Agrimex Ltd v Tradigrain Sa and others: ComC 9 Jul 2003

Challenge was brought against the fees charged by the arbitrator, and in particular at the cost of the arbitrator bringing in a legally qualified draftsman.
Held: A draftsman’s task would not be himself to refine the arbitrator’s reasoning, but rather to express it as exactly as was necessary for the case. Such an appointment would be unnecessary in most cases, and particularly where the amount at issue was not great, but could apply where the issues were complex, although an assessor might be more appropriate. Antagonism and a legalistic approach would not of itself justify such an appointment, though the attitude of the parties in general could be taken into account. Old cases were not useful in such a context. The court would not say that the appointment was wrong, but the costs incurred were quite disproportionate and reduced accordingly.
The Honourable Mr Justice Thomas
[2003] EWHC 1656 (Comm), Times 12-Aug-2003, [2003] 2 Lloyd’s Rep 537
Bailii
Arbitration Act 1996 28(2) 28(3)
England and Wales
Citing:
Cited – Threlfall v Fanshawe 1850
There was a dispute about the entitlement of a lay arbitrator, who had been appointed by order of the Court to determine a boundary dispute between two estates, to charge for the attorney he had employed.
Held: ‘Where parties appoint a lay . .
Cited – Re Collyer-Bristow and Co 1901
The issue was whether a bill of the solicitors employed to advise the Umpire was taxable and, if so, in which Division of the High Court . .
Cited – Transcatalana de Commercio SA v Incobrassa Industrial e Commercial Brazileira SA 1995
. .
Cited – Kurkjian v Marketing Exchange No 2 1986
If a tribunal employs a lay or legal draftsman, the tribunal has a duty to satisfy themselves that the fee he charges is fair and reasonable; the extent of the work required of the tribunal in examining the fees charged by the lawyer is . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 August 2021; Ref: scu.184651

Fayad, Regina (on The Application of) v The Secretary of State for The Home Department: CA 31 Jan 2018

[2018] EWCA Civ 54
Bailii
England and Wales
Citing:
See Also – Fayad, Regina (on The Application of) v Home Office CA 15-Jan-2016
‘application for permission to appeal. The Appellant’s case is that he is a British overseas citizen and entitled to a British passport. He says he was born to Lebanese national parents on 5 February 1961 in Sierra Leone. Sierra Leone was then a . .

Cited by:
Cited – Rowley, Regina (on The Application of) v Minister for The Cabinet Office Admn 28-Jul-2021
Failure to Provide Signers was Discriminatory
The claimant challenged the failure of the respondent to provide sign language interpreters to accompany public service broadcasts during the Covid pandemic. The parties agreed that the steps taken for later broadcasts had satisfied the . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2021; Ref: scu.604143

Cartier International Ag and Others v British Telecommunications Plc and Another: SC 13 Jun 2018

The respondent ISP companies had been injuncted to stop the transmission of websites which infringed the trade mark rights of the claimants. The ISPs now appealed from the element of the order that they pay the claimants’ costs of implementing the website-blocking order.
Held: The appeal succeeded as to the costs of compliance with the injunction. The European Directives made no reference to the costs of compliance with such orders, and the issue was one of English Law which would by default ask as to the legal distribution of risks as found by the court. There was no basis for the claimant to look beyond the infringers for their costs, and the rights holders should indemnify the ISP for the costs of compliance. As to the litigation costs, the ISPs had chosen to make this a test case, and took the associated responsibility.
Lord Mance, Lord Kerr, Lord Sumption, Lord Reed, Lord Hodge
UKSC 2016/0159, [2018] UKSC 28, [2018] ECC 29, [2018] EMLR 22, [2018] 4 All ER 373, [2018] ECDR 16, [2018] ETMR 32, [2018] 1 WLR 3259, [2018] Bus LR 1417, [2018] WLR(D) 354, [2018] RPC 11
Bailii, WLRD, Bailii Summary, SC, SC Summary, SC Summary Video, SC 2018 Jan 30 am Video, SC 2018 Jan 30 pm
E-Commerce Directive 2000/31/EC, Information Security Directive 2001/29/EC, Enforcement Directive 2004/48/EC
England and Wales
Citing:
Appeal from – Cartier International Ag and Others v British Sky Broadcasting Ltd and Others CA 6-Jul-2016
Appeals by five English internet service providers against orders which required them to block or attempt to block access by their customers to certain websites which were advertising and selling counterfeit copies of the respondents’ goods in . .
Cited – Upmann v Elkan CA 5-Jun-1871
The defendant freight forwarding agent was innocently in possession of consignments of counterfeit cigars in transit to Germany through a London dock. The action was not for discovery, but for an order restraining the forwarder from releasing the . .
Cited – Singularis Holdings Ltd v Pricewaterhousecoopers PC 10-Nov-2014
(Bermuda) Liquidators of two companies sought information from the companies’ former auditors, and in particular their working papers. . .
Cited – The Rugby Football Union v Consolidated Information Services Ltd SC 21-Nov-2012
The Union challenged the right of the respondent to resell tickets to international rugby matches. The tickets were subject to a condition rendering it void on any resale at above face value. They said that the respondent had advertised tickets in . .
Cited – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
Cited – Twentieth Century Fox Film Corp and Others v British Telecommunications Plc ChD 28-Jul-2011
The claimant rights holders sought an order to require the defendant broadband internet provider to deny access to its users to websites which were said to facilitate the distribution of infringing copies of their films. An earlier judgment had . .
Cited – Banker’s Trust v Shapira CA 1980
Enforcement through innocent third party bank
Two forged cheques, each for USD500,000, had been presented by two men and as a result USD1,000,000 had been transferred to accounts in their names. The plaintiff sought to trace assets through the banks involved.
Held: The court approved the . .
Cited – British Steel Corporation v Granada Television Ltd HL 7-May-1980
The defendant had broadcast a TV programme using material confidential to the plaintiff, who now sought disclosure of the identity of the presumed thief.
Held: (Lord Salmon dissenting) The courts have never recognised a public interest right . .
Cited – Clipper Maritime Co Ltd v Mineralimportexport 1981
Innocent third parties, such as port authorities required by a freezing order to detain a vessel in port, are entitled to an indemnity. . .
Cited – Z Ltd v A-Z and AA-LL CA 1982
The plaintiffs, an overseas company with an office in London had been defrauded here. They sought and obtained Mareva injunctions against defendants and against six clearing banks. The banks sought clarification of their duties.
Held: The . .
Cited – Tommy Hilfiger Licensing And Others v Delta Center a.s ECJ 7-Jul-2016
ECJ (Judgment) Reference for a preliminary ruling – Approximation of laws – Directive 2004/48/EC – Enforcement of intellectual property rights – Notion of ‘intermediary whose services are being used by a third . .
Cited – Totalise Plc v The Motley Fool Limited and Interative Investor Limited (2) CA 19-Dec-2001
The respondent operated a web site which contained a chat room. Defamatory remarks were made by a third party through the chat room, and the claimant sought details of the identity of the poster. The respondent refused to do so without a court . .
Cited – UPC Telekabel Wien v Constantin Film Verleih GmbH ECJ 27-Mar-2014
ECJ Request for a preliminary ruling – Approximation of laws – Copyright and related rights – Information society – Directive 2001/29/EC – Website making cinematographic works available to the public without the . .
Cited – Ashworth Security Hospital v MGN Limited HL 27-Jun-2002
Order for Journalist to Disclose Sources
The newspaper published details of the medical records of Ian Brady, a prisoner and patient of the applicant. The applicant sought an order requiring the defendant newspaper to disclose the identity of the source of material which appeared to have . .
Cited – Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v Netlog NV ECJ 16-Feb-2012
ECJ Information society – Copyright – Internet – Hosting service provider – Processing of information stored on an online social networking platform – Introducing a system for filtering that information in order . .
Cited – L’Oreal SA, Lancome parfums et beaute and Cie, Laboratoire Garnier and Cie, L’Oreal (UK) Limited v eBay International AG, eBay Europe SARL, eBay (UK) Limited ECJ 12-Jul-2011
ECJ Grand Chamber – Trade marks – Internet – Offer for sale, on an online marketplace targeted at consumers in the European Union, of trade-marked goods intended, by the proprietor, for sale in third States – . .
Cited – Miller Brewing Co v Ruhl Enterprises Ltd and another ; Miller Brewing Co v Mersey Docks and Harbour Co amd Others ChD 23-May-2003
The claimant obtained an interim injunction in respect of alleged infringement of its trade marks in beers brewed under licence by the respondents. They said the beers produced were of inferior quality, and threatened the brand. The grant of such . .
Cited – Scarlet Extended Sa v Societe Belge Des Auteurs Compositeurs Et Editeurs (SABAM) ECJ 14-Apr-2011
ECJ Opinion – Information Society – Intellectual property rights – Directive 2004/48/EC – Copyright and related rights – Directive 2001/29/EC – Illegal downloading on the Internet – Peer to peer through software . .
Cited – Google France and Google v Louis Vuitton Malletier (Intellectual Property) ECJ 23-Mar-2010
ECJ Trade marks Internet Search engine – Keyword advertising – Display, on the basis of keywords corresponding to trade marks, of links to sites of competitors of the proprietors of those marks or to sites . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 July 2021; Ref: scu.617855

Arklow Investments Ltd v Maclean: 19 May 2000

(High Court of New Zealand) The court considered the potential personal responsibility of a directors for costs incurred by the company in litigation: ‘Where a person is a major shareholder and dominant director in a company which brings proceedings, that alone will not justify a third party costs order. Something additional is normally warranted as a matter of discretion. The critical element will often be a fresh injection of capital for the known purpose of funding litigation . . the overall rationale [is] that it is wrong to allow someone to fund litigation in the hope of gaining a benefit without a corresponding risk that that person will share in the costs of the proceedings if they ultimately fail.’
Fisher J
(Unreported) 19 May 2000
England and Wales
Citing:
See Also – Arklow Investments Ltd and Another v Maclean and Others PC 1-Dec-1999
PC (New Zealand) Land was offered for sale. A potential buyer, the appellant was approached by a merchant bank with a proposal for finance. When he sought finance elsewhere, a company associated with the bank . .

Cited by:
Cited – BE Studios Ltd v Smith and Williamson Ltd ChD 2-Dec-2005
The claimant company had failed in its action. The court was asked to make a costs order personally against the principal director of the claimant who had controlled the litigation and funded it. He responded that no impropriety had been shown on . .
Cited – Media Cat Ltd v Adams and Others PCC 18-Apr-2011
The claimants had begun copyright infringement cases. Having been refused a request to be allowed to withdraw the cases as an abuse, their solicitors now faced an application for a wasted costs order.
Held: The court only has jurisdiction to . .
Cited – Goknur v Aytacli CA 13-Jul-2021
Third Party Costs – Director of Insolvent Company
(Organic Village) The Court considered the circumstances Limited in which a director and shareholder of an insolvent company may be personally liable for some or all of that company’s costs liabilities incurred in unsuccessful litigation, pursuant . .

These lists may be incomplete.
Updated: 16 July 2021; Ref: scu.237246

Brackenbank Lodge Ltd v Peart and Others: HL 26 Jul 1996

The court overturned the decision of the Court of Appeal following the discovery of a very ancient report of a court hearing on the same issues. The Peart defendant had failed to disclose to his lawyers the existence of the judgment, and he should expect to be penalised in the costs of all parties.
Times 26-Jul-1996
England and Wales
Citing:
Appeal from – Brackenbank Lodge Ltd v Peart and Others CA 4-Jun-1993
A right to stint, a grazing right, defeated an assertion of an interest in the freehold, and the stint holders were awarded a proprietary interest in the moor as tenants in common. . .

These lists may be incomplete.
Updated: 07 July 2021; Ref: scu.78537

Raftopoulou v Revenue and Customs: UTTC 13 Nov 2015

PROCEDURE – costs – whether the Tribunal has power to order a payment in respect of pro bono costs – s 194, Legal Services Act 2007; s 29, Tribunals, courts and Enforcement Act 2007 – held: no such power in the Tribunal – application refused
References: [2015] UKUT 630 (TCC)
Links: Bailii
Jurisdiction: England and Wales

Last Update: 16 October 2020; Ref: scu.558953

Re Cutliffe’s Estate: CA 1959

References: [1959] P 6
Coram: Morris LJ, Hodson LJ
Ratio: In attacking the will, the unsuccessful defendants had pleaded undue influence as well as lack of due execution and want of knowledge and approval, but their evidence had been disbelieved. They complained that in awarding costs against them the court had not applied Spiers v English.
Held: The testator himself had not been responsible for the litigation. Morris LJ said: ‘Costs are always in the discretion of the court; but, without restricting or in any way making rigid the exercise of that discretion, the courts have given general guidance which will enable those embarking on litigation to know how, in particular cases, the discretion is likely to be exercised.’
This case cites:

  • Cited – Spiers v English ([1907] P 122)
    The two main principles which should guide the court in determining that costs in an appropriate suit are not to follow the event are firstly where the testator or those interested in the residue had been the cause of the litigation and secondly, if . .
  • Cited – Mitchell v Gard ((1863) 3 Sw and Tr 275)
    The next of kin of the deceased, who had unsuccessfully opposed the will in a testamentary suit tried before Byles J and a jury, applied for their costs to be paid out of the estate.
    Held: Sir James Wilde said: ‘The basis of all rule on this . .

(This list may be incomplete)
This case is cited by:

  • Cited – Francis Hoff and others v Mary Atherton ChD ([2004] EWHC 2007 (Ch))
    A challenge to testamentary capacity falls within the second exception in Spiers v English and not the first. . .
  • Cited – Kostic v Chaplin and others ChD (Bailii, [2007] EWHC 2909 (Ch), Times 11-Jan-08)
    The claimant had brought contentious probate proceedings, and succeeded in establishing that the deceased had not had capacity to make the will. The defendant beneficiaries appealed an order for costs.
    Held: The costs of the trial itself . .

(This list may be incomplete)

Last Update: 18 March 2019
Ref: 263527

Dickens v Dickens; 9 Mar 1859

References: [1859] EngR 391, (1859) 2 Sw & Tr 103, (1859) 164 ER 931
Links: Commonlii
Ratio: Wife’s Costs. – Wife’s Petition. – Taxed Costs during Suit – Practice – On taxation of wife’s costs in a petition for judicial separation pending suit, the registrar disallowed all costs incurred before actual proceedings taken against the husband, and various items charged for attendance on the wife’s father in connection with her case. On cause shewn against a rule nisi for a review of taxation :- The Court affirmed the registrar’s taxation as being in accordance with the practice of both the common law and ecclesiastical courts.

Last Update: 30-Jul-16
Ref: 287743

Drummond v Revenue and Customs; UTTC 13 May 2016

References: [2016] UKUT 221 (TCC)
Links: Bailii
Ratio: UTTC PROCEDURE – COSTS – application by Respondents to set aside protective costs order in favour of Appellant – application granted – whether Upper Tribunal has power to make protective costs and costs capping orders – yes – procedure and criteria for protective costs and costs capping orders

Last Update: 29-Jul-16
Ref: 567352