Costs Recovery News Updates

Pavement or carriageway?

Jeanette Cenet (nee McGlennon) v Wirral MBC (2008)

The Claimant claimed for injuries sustained when she caught her foot in a depression in the road, tripped and fell. Although the Judge had been right to find that the Claimant’s accident had occurred at a point where pedestrians were likely to cross a road, he had been wrong to apply the standards appropriate to a pavement rather than a carriageway. The standards appropriate to a carriageway were less stringent, and the evidence pointed to the defect not being dangerous.

For further information, please see the judgment at: www.bailii.org

Ref:- [2008] EWHC 1407 (QB)

Disclosure or election

Gower Chemicals Group Litigation v (1) Gower Chemicals Ltd (2) Neath Prot Talbot County Borough Council (2008)

Master Wright had ordered the receiving party (the claimants) to elect either to disclose certain experts’ reports for which they were seeking recovery of costs or to decline disclosure and rely on other evidence. The experts’ reports in question had not previously been disclosed.

The claimants were granted leave to appeal. The claimants maintained that the Master had been wrong on four grounds. Costs Practice Direction 40.14 considered, together with certain case law.

Held:- Costs Judges have wide and flexible discretionary powers under the Rules and Practice Directions and in the present case, in the circumstances of the case, the Master was fully justified in deciding to put the receiving party to their election.

For further information, please see the judgment at: www.bailii.org

Ref:- [2008] EWHC 735 (QB)

Has the change in the language of Part 36 resulted in a change of approach

Lisa Carver v BAA PLC (2008)

The Claimant had suffered an accident on 31st March 2003. No agreement could be reached and the matter went to Trial on 4th June 2007. The Claimant was awarded the sum of £4,520.00 which beat a payment into Court made in November 2005 by £51.00. The Claimant was ordered to pay the Defendants’ costs of the claim after the time for accepting the payment had expired. The Claimant appealed the decision. It was common ground that the new Part 36 Rule, which came into effect from 6th April 2007, governed the outcome of the case.

Held:- The original offer to settle was a reasonable, not a derisory one. The claim became an exaggerated claim, which was withdrawn late in the day with no counter-proposals forthcoming. This was a small claim in which the defendants admitted liability within months of the accident. In the circumstances of the case the Judge was entitled to order the Claimant to pay the Defendants’ costs after the time to accept the payment in had expired.

For further information, please see the judgment at: www.bailii.org

Ref:- [2008] EWCA Civ 412

To mediate or not to mediate!

(1) Earl of Malmesbury (2) William John Maltby (3) Kathleen Hobbs (4) Wilsco 283 Ltd -v- Strutt & Parker (A Partnership) (2008)

One of the issues considered in this matter was the parties’ stance towards mediation. Where the failure to mediate was due to the attitudes taken on either side, it was not open to one party to claim that the failure should be taken into account in the order as to costs. A party who agreed to mediation, but then took an unreasonable position in the mediation was in the same position as a party who unreasonably refused to mediate and it was something that the court could and should taken account of in the costs order.

For further information, please see the judgment at: www.lawtel.com

Ref:- [2008] EWHC 424 (QB)

Refusal to allow Application for relief from sanction

Blerim Ethemi -v- Robert Shiels (2008)

The Claimant had been directed to produce various documents but had failed to comply with an Order that provided that such a failure would lead to the claim being struck out.

The Claimant acknowledged that he was in breach of the order, but sought relief from sanction under CPR 3.9. This was refused as it was held that the failure to apply with the directions was not minimal, the trial would have to be adjourned and the judge did not consider that an order for costs against the Claimant would be effective, as the Claimant was unlikely to be able to meet same.

For further information, please see the judgment at: www.lawtel.com

Ref:- [2008] EWHC 291 (QB)

Held:- The mention of the letter in the witness statement did not mean that privilege for it had been automatically and absolutely lost.

For further information, please see the judgment at: www.bailii.org

Ref:- [2008] EWCA Civ 59

For further information, please see the judgment at: www.bailii.org

Ref:- [2007] EWHC 90093 (Costs)

Enforceability of CFA

Mrs Kirpal Kauer Dole and ECT Recycling Limited

This case is a reminder that hindsight cannot be used. It is the state of knowledge at the time the CFA is entered into that is important.

For further information, please see the judgment at: www.bailii.org

Ref:- [2007] EWHC 90086 (Costs) 17th September 2007