Costs Recovery News Updates

SCCO 2009 Guideline Rates for summary assessment

The rates for London 3, Bands A and B are presented as ranges following the format of the Guide to The Assessment of Costs. These ranges go some way towards reflecting the wide range of work types transacted in these areas.

Pursuing a doomed counterclaim
(13th November, 2008)

David Peakman v Linbrooke Services Ltd (2008)

In the substantive case the Appellant had sought the sum of £2,232.40 against the Defendants in respect of pay for work done; damages for breach of contract, etc. The Defendants had contested all the claims and had issued a counterclaim, which was never supported by evidence and not pursued actively at trial. After an 8-day trial it was directed that the Appellant should pay £265.00 plus interest to the Defendants. The judge made no order as to costs. The Appellant appealed the order.

HELD: The counterclaim should never have been brought and should certainly not have been continued to trial. If the counterclaim had not been brought the matter would have remained a Small Claim and would not have been allocated to the Multi-track. The correct order for costs was for the Defendants to pay 50% of the Appellants costs from the date of allocation to the Multi Track

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

Ref:- [2008] EWCA Civ 1239 (Costs)

Disclosure of a Conditional Fee Agreement
(2nd September 2008)

Lewis Charles Findlay and (1) Cantor Index Limited and Others

The Defendants had sought disclosure of a Conditional Fee Agreement between the Claimant and his solicitors. They maintained that this was not a fishing expedition given that over £300,000.00 turned on the level of the success fee. They also sought disclosure of a Counsel’s Opinion referred to in the risk assessment on the grounds that privilege in both had been waived. The CFA was dated 12th June 2006 and was therefore under the new Regulations. The Claimant’s Solicitors refused to disclose either document.

HELD:- The Application for disclosure on the grounds of waiver was dismissed and the Master indicated that whilst he felt that the Defendant’s case was the type of satellite litigation condemned by the Court of Appeal, if the Claimant’s Solicitors had disclosed the CFA in the first place the current proceedings would have been unnecessary.

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

Ref:- [20087] EWHC 90116 (Costs)

Counsel’s fees (4th November 2008)

Sibley & Co. – and – (1) Reachbyte Limited (2) Kris Motor Spares Limited

Mr. Justice Peter Smith, sitting with two Assessors in the High Court of Justice upheld the decision of Deputy Master Hoffman in respect of the disallowing of certain Counsels’ fees on a Detailed Costs Assessment.

Mr. Justice Smith indicated that he felt that no attempt had been made to discuss, let alone fix, the level of Counsel’s fees by the Appellants and that in any event Counsel had never offered a detailed statement of the time spent on the case, nor was it possible from the fee notes supplied to ascertain what exactly had been done.

The Appeal was dismissed

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

Ref:- [2008] EWHC 2665 (Ch)

Pre-action costs and disbursements (3rd September 2008)

Susan Elizabeth Cuthbert v Stephen Ronald Gair & Wendy Isabell Gair (T/A Bowes Manor Equestrian Centre) (2008)

Pre-action work had been carried out by a firm of loss adjusters before solicitors had been instructed and were shown in the final Bill of Costs as a disbursement. This item had been allowed on Detailed Assessment but was appealed.

Master Haworth found that this was a simple case of an insurer contracting out … part of its work …. It is routine work, which many insurers up and down the country would undertake in-house. The mere fact that the insurer chose to contract out that work … does not render the costs recoverable.

The Appeal was dismissed

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

Ref:- [2008] EWHC 90114 (Costs)

A question of justice (11th June 2008)

Baker v (1) Quantum Clothing Group Ltd (2) Meridian (3) Pretty Polly (2008)

Where the Applicant’s ATE provider indicated that they would not guarantee the costs of two Respondents who had joined themselves to the proceedings on the basis that the appeal constituted a matter of public interest, it would be an injustice to the Applicant if she was compelled to bear the burden of the other Respondents’ costs of the appeal. It was therefore in the interests of justice that the two Respondents be directed to bear their own costs of the appeal, regardless of its outcome.

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

Ref:- [2008] EWCA Civ 823

For your diary (October 2008)

CPR 47th Update – October 2008

The 47th update to the Civil Procedure Rules will be introduced in October 2008. The main amendment would appear to be to Part 6 which is revised with the exception of service out of the jurisdiction. The new rules will be supplemented by practice directions A and B. These amendments will obviously effect other parts of the CPR. Parts 43-47 and the accompanying practice directions are amended to enable costs orders in civil cases where the successful party is represented pro bono. Such costs orders will be directed to a charity prescribed by order made by the Lord Chancellor.

For full details of the forthcoming amendments see: www.justice.gov.uk/civil/procrules_fin

Termination of retainer – Solicitor and Client Costs (28th July 2008)

Richard Buxton (Solicitors) v Huw Llewelyn Paul Mills-Owens (2008)

The solicitors had terminated a retainer with the client a few days before the hearing because they were unable to agree with the approach the client wished to take. The solicitors had presented a bill for their profit costs and disbursements. A Costs Judge had held that although doomed to failure, the client’s instructions were not improper and the retainer should not have been terminated. Therefore the solicitors were not entitled to their profit costs, although the disbursements were allowed. The solicitors appealed the decision. Mr Justice Mackay found that the Costs Judge’s decision was not wrong indeed it was right [paragraph 38] and dismissed the appeal.

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

Ref:- [2008] EWHC 1831 (QB)

Reasonable choice of solicitor (25th July 2008)

A v Chief Constable of South Yorkshire (2008)

The Appellant had brought a claim against the police, that as a result of wrongful actions he had developed paranoid schizophrenia. A local firm had been instructed to deal with the criminal charges, but a London firm was instructed in respect of the claim against the police. The Deputy Costs Judge found that the Appellant had not acted as a reasonable litigant in instructing solicitors outside his local area and had only allowed rates that would have been charged by an experienced local solicitor. The Appellant appealed the decision, but the Appeal was dismissed as it was found that a reasonable litigant would have instructed a local firm with experience of bringing claims against the police.

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

Ref:- [2008] EWHC 1658 (Comm)

Date of Judgment:- 17.07.2008

Costs of amending Particulars of Claim (11th July 2008)

Davies & Ors v Jones & Anor : Lidl UK GMBH & Anor v Davies & Ors (2008)

The Respondent had applied, after the expiration of the limitation period to amend the particulars of claim. The Amendment had been allowed and the Respondent had been ordered to pay the Appellant’s costs. The Appellant appealed against the decision to allow the amendment to the particulars of claim and the Respondent appealed against the costs order. Both appeals were dismissed, it being held that the Judge had been correct in allowing the amendment to the particulars of claim and that it was normal for the applicant to pay the costs of an application to amend.

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

Ref:- No neutral citation number as yet

date of judgment 10.07.2008

Pavement or carriageway? (26th June 2008)

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 (17th Apr 2008)

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? (22nd Apr 2008)

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! (18th Mar 2008)

(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 (10th Mar 2008)

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 (16th Oct 2007)

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