GLD Vacancies

Key costs cases in Q1 2016

Money iStock 000008683901XSmall 146x219Iain Stark, Victoria James and Dr Catriona Wolfenden round up the major costs cases in the first three months of 2016.

Low court fees

Richard Lewis and Others v Ward Hadaway (A Firm) [2015] EWHC 3503 (Ch)

  • It would be disproportionate, on the facts, to strike out a claim for an abuse of process where the claimants deliberately understated the value of their claim so a lower issue fee was paid and limitation was stopped, as the claims were arguable and because of the defendant’s potential liability in damages. As the correct fee had not been paid when the claim was issued, the defendant succeeded in their summary judgment request.

Supreme Court costs

Khaira v Shergill [2016] EWHC 628 (Ch)

  • An order made by the Supreme Court that one party should pay the other party’s Court of Appeal and Supreme Court costs, subject to detailed assessment in default of agreement, permitted the receiving party to have the costs assessed immediately; it did not matter that the claim was proceeding to trial.

Changing to a CFA

Mehmet Edem Yesil (a child by his litigation friend) v Doncaster & Bassetlaw Hospitals NHS Foundation Trust QBD (District Judge Besford) 24/02/2016

  • Additional liabilities resulting from a claimant switching from legal aid to a CFA, based on erroneous information that the legal aid limit had nearly been reached, were not recoverable from the defendant because the decision to change funding was not reasonable.
  • Doubts were raised as to the advice given to the claimant in relation to the funding change, in particular because the claimant had not been told he was entering into a CFA just before the LASPO Act 2012 came into force and would consequently not qualify for the Simmons 10% uplift on general damages which he would have qualified for if the CFA was entered into post LASPO (worth £28,000 on the facts).

Assignment

Budana v Leeds Teaching Hospitals NHS Trust (CC (Kingston-upon-Hull) 04/02/16)

  • A retainer was terminated when a firm had written to their client confirming they were stopping PI work. There was therefore no retainer capable of assignment.

Part 36

Sugar Hut Group Limited v AJ Insurance Services [2016] EWCA Civ 46

  • The Court of Appeal held that a judge had erred by taking into account when considering costs, a defendant’s Part 36 offer which had not been beaten. The Part 36 cost consequences could not apply as the offer had not been beaten and the court confirmed there is no ‘near miss rule’.

Beating a Part 36 offer at trial

(1) Broadhurst (2) Taylor v (1) Tan (2) Smith [2016] EWCA Civ 94

  • Where a claimant obtained judgment for a figure more advantageous than their Part 36 offer and the costs were governed by the fixed costs in CPR 45 s.IIIA (the claim having commenced in the portal), the claimant was entitled to fixed costs in accordance with the applicable table to the last staging point provided for by the table and then was awarded costs on an hourly rate indemnity basis from the date that the offer became effective. See legal update here.

Budgets

Sarpd Oil International Ltd v Addax Energy SA [2016] EWCA Civ 120

  • To agree a budget implies that the incurred costs are also agreed. If the court records comments on incurred costs at a case management hearing, these comments will carry significant weight when the court considers costs at trial or at the end of the case when costs are subject to provisional/detailed assessment. Fee earners should consider fully whether they should be agreeing whole budgets or incurred costs on their cases.

Jackson LG speeches

Jackson speech (part 1) – legal update

Jackson speech (part 2) – legal update

Jackson speeches: key questions – legal update

Part 36

Jockey Club Racehorse Ltd v Willmott Dixon Construction Limited [2016] EWHC 167 (TCC)

  • A Part 36 offer by the claimant to settle liability in a contractual claim at 95%/5% was a genuine attempt at settlement and not derisory. It did not matter that on the facts, a 95% liability split was not an option for the court as there was no possibility of contributory negligence.
  • On the facts, the claimant was awarded partial indemnity costs.

Failure to mediate

Bristow v The Princess Alexander Hospital NHS Trust SCCO (Master Simons) 04/11/2015

  • The Court held that the defendant was unreasonable in failing to enter into mediation, having taken six weeks to reject the offer, with no reason other than the matter had already been set down for detailed assessment. The claimant was awarded 80% of their detailed assessment costs based on the inclusion of incorrectly claimed costs in the bill and a reduction on assessment by 43%. However, (all) the claimant’s costs were awarded on the indemnity basis to take into account the defendant’s failure to mediate.

Iain Stark is a Partner and Head of Costs Practice Area, Victoria James is an Associate and Dr Catriona Wolfenden is a Professional Support Lawyer at Weightmans. Iain can be contacted on 0207 822 1958 or This email address is being protected from spambots. You need JavaScript enabled to view it..

 
A&M Bacon