Entries by Elliot Walker

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Court of Appeal Confirms Retrospective Effect Of CFA Despite Lack Of Express Term

In Mohinder Singh & Ors v David Ingram, the Court of Appeal considered the retrospective application of a Conditional Fee Agreement (CFA) between a liquidator and his solicitors, Boyes Turner LLP. The case arose from litigation concerning allegations of void dispositions and fraudulent conduct by former directors of MSD Cash and Carry PLC. The key issue was whether the CFA, signed in March 2015, could retrospectively cover legal work performed since March 2012. Both the Costs Judge and High Court had previously determined the CFA was retrospective. The Court of Appeal, led by Lord Justice Coulson, comprehensively rejected the appellants’ challenge, finding that the CFA’s wording clearly demonstrated retrospective intent. The court emphasized that there is no legal requirement for a CFA to explicitly use the word “retrospective” and that ordinary principles of contractual interpretation should apply. The judgment reinforced that solicitors and clients can agree retrospective fee arrangements, provided the contract’s terms are clear and unambiguous. Ultimately, the appeal was dismissed, confirming the retrospective nature of the CFA and upholding the lower courts’ original findings.

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Costs Follow the Event | No Reduction for Refusal to Mediate When Positions Were Polarised

“Although the Claimant focuses on the various invitations to mediate which were not taken up by the Defendant, this is not a case where Wirsol made no attempts at settlement. Mediation was proposed by Assensus on a number of occasions prior to the issue of proceedings. Although Wirsol did not accept these invitations, it made a Part 36 Offer of £100,000 in November 2022. This is a meaningful sum, in light of Assensus’ entitlement as it has been found to be. Assensus also made a Part 36 Offer in October 2022 of £1,041,589 (excluding costs). The question is not, as Mr Khan put it at one point, whether the Assensus’ rejection of Wirsol’s offer was reasonable; it is whether the conduct of Wirsol was unreasonable. There was a large gulf between the parties. Making, and then standing by, a reasonable offer was patently not unreasonable conduct in light of the ultimate Judgment.”

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Interpreter’s Fee Of £924 Deemed Recoverable Under The RTA Protocol But Disproportionate To £20,000 Settlement | Reduced To £794.40

This case involved a determination regarding the quantum of a specific disbursement in the claim between Raphael De Lima Santiago (the Claimant) and the Motor Insurance Bureau (the Defendant). The procedural journey began when the Claimant, a Brazilian national whose first language is Portuguese, was involved in a road traffic accident on 22 May 2018 while working as a delivery driver in London. The accident, involving a Honda motorcycle driven by him and a scooter driven by Mr Joshua Odubolo, led to the motorcycle being deemed uneconomical to repair. Subsequently, the Claimant’s legal action included a claim for the cost of hiring a replacement motorcycle, amounting to over £46,000.

The claim was initiated through the Road Traffic Accident (RTA) Protocol and filed at the County Court Money Claims Centre on 17 May 2021, a day before the expiration of the limitation period. Mr Odubolo did not mount a defense, leading to the Motor Insurers’ Bureau (MIB) being involved as a second defendant due to uncertainties regarding Mr Odubolo’s insurance status.

The claim proceeded to trial at the County Court after being allocated to the Fast Track. The Claimant’s witness statement, originally in Portuguese, was translated into English by Bond Turner Solicitors, who also booked an independent interpreter for trial compliance. This direction was necessitated by the court’s conditions, precluding the use of internal translators from the Claimant’s solicitors at trial.

On the day of trial, 11 August 2022, the case settled, with the MIB agreeing to pay £20,000 and the Claimant’s costs summarily assessed at £13,746.03. However, the Deputy District Judge Sneddon excluded the Interpreter’s Fee, citing CPR 45.29I(h) and relying on the Court of Appeal’s decision in Cham (A Child) v Aldred. Permission to appeal was granted, leading the matter to the Court of Appeal, which focused on the interpreter’s fee recoverability as a necessary disbursement due to the access to justice principle outlined in the overriding objective and Practice Direction 1A.

The Court of Appeal, in its decision dated 14 July 2023, remitted the case for further determination of the reasonableness and proportionality of the interpreter’s fee quantified at £924. The court’s directions included guidelines for the defendant to challenge the fee if necessary within a given timeframe.

The case was remitted to the court court and came before HHJ Dight CBE on 6 September 2024.

Judgment was handed down on 21 February 2025.

Costs Issues Before the Court

The primary costs issue before the court was the assessment of the interpreter’s fee under CPR 45.29I(h). Following a remittance by the Court of Appeal to consider this disbursement, the central question was whether the fee for instructing an interpreter at the trial of the claim, claimed at £924 including VAT, was proportionate and reasonable.

The Defendant’s contention included an alleged failure by the Claimant to provide a breakdown of the fee, suggesting the court either assess the fee at nil or reduce it to £300, drawing on the market rate for such services. The considerations also involved whether any part of the fee constituted an irrecoverable agency element, and if so, the impact of such an element on the recoverability of the total fee.

The Parties’ Positions

The Claimant, represented by Ben Williams KC, maintained that the interpreter’s fee, although involving an intermediary service provider, was a reasonable and proportionate fee within market standards. They argued that the booking was necessitated by the professional service context, and thus, a higher fee encompassing operational costs of the service provider was inevitable. The Claimant supplied comparable market quotations to substantiate their position, indicating the fee fell within a typical range and emphasising that any reduction should still recognise a reasonable market cost.

Contrarily, the Defendant, through Robert Marven KC, contended the fee was unreasonably inflated and included an agency component that should not be recoverable under CPR 45.29I(h), referencing Crane v Canons Leisure Centre. They stressed the need for transparency, urging the court to compel disclosure of the fee breakdown, and argued for a reduction to a minimal sum of £300, aligned with direct bookings from public registers of interpreters at standard flat rates.

The Court’s Decision

His Hon Judge Dight CBE held that the interpreter’s fee was indeed a recoverable disbursement under CPR 45.29I(h). The Judge, after a meticulous analysis, rejected the argument that the fee should include an irrecoverable agency component when sourced through an intermediary. It was acknowledged that market practices for obtaining professional services often involve such intermediary costs, and the fee should be judged against prevailing market rates.

The Court referenced the competitive market context for such services, drawing on data provided by the Claimant’s costs draftsman, Mr Neil Ryder, which showed a reasonable range of fees from similar service providers. The decision also took into account the proportionality rule under CPR 44.3, considering the entirety of the claim.

The Judge held that the £924 fee was at the high end of the market range and was not proportionate to the claim’s settlement value and should be adjusted. Consequently, he determined an adjusted reasonable fee would be £662 plus VAT, totalling £794.40, thereby ensuring the fee was fair, reasonable and aligned with the proportionality bounds in relation to the claim’s overall value.

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Defendant To Pay Costs Of Unsuccessful Part 20 Claim

“I have stood back to consider the context and circumstances in which, in these complex multi-party proceedings, allegations about Ms Lucas or a claim against Ms Lucas were made and were pursued, and by whom, and for what period, and with what consequences. I am quite clear that the just result in these proceedings is that the relevant costs involved with the additional claim should be met by the Privinvest Companies.”

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Costs Management | “Unrealistic And Unreasonable” Costs Budget Leads To Adverse Costs Award

Summary of GS Woodland v RGCM Ltd & Others [2025] EWHC 285 (TCC):

The case concerned a complex construction dispute involving multiple defendants over alleged defects in student accommodation, with the claimants seeking £11 million in damages against potential remediation costs of £30 million. The High Court conducted a costs management hearing that critically examined the claimants’ proposed costs budget, which initially stood at £8.74 million but was substantially reduced to £4.212 million. Mr Justice Constable found the claimants’ original budget unrealistic and disproportionate, noting significant disparities between the claimed costs and defendants’ offers, which ranged from £2.7 million to £3.539 million. The judgment highlighted excessive hourly rates significantly above guideline rates and implausible time allocations. Applying recent case law principles, the court granted the defendants’ application for costs, ordering the claimants to pay the reasonable costs of certain defendants for the hearing and bear their own costs. The decision emphasized the importance of parties presenting realistic and proportionate costs budgets, with potential adverse cost consequences for unreasonable approaches to cost management.

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Costs Management Hearing | Unrealistic Budgets May Face Adverse Costs Orders

In [2025] EWHC 260 (KB), the High Court provided critical guidance on costs management, warning that parties presenting unrealistically ambitious costs budgets may face adverse costs orders, with the judgment emphasising judicial discretion to deviate from standard “costs in the case” orders when cost estimates are significantly inflated, as demonstrated by reducing the claimant’s budget from £511,125.30 to £308,909.30.

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Without Prejudice Letter Reveals Fundamental Dishonesty Undermining Claimant’s Case

The High Court ruled that a without prejudice letter containing an admission of fundamental dishonesty could be admitted as evidence, finding that the public interest in full disclosure outweighed the typical protections afforded to settlement negotiations, particularly where the claimant had effectively acknowledged misrepresenting aspects of his personal injury claim.

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Points of Dispute Struck Out Due To Wholesale Non-Compliance

In a detailed costs judgment, Deputy Costs Judge Roy struck out the claimant’s non-compliant Points of Dispute challenging her former solicitors’ costs bill of £132,000, finding the 32-page document was prolix, unfocused, and prevented a fair assessment, while simultaneously rejecting the claimant’s allegations of misconduct as an impermissible attempt to re-litigate previously determined issues.

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Damages-Based Agreement Invalidated For Failure to Comply with Regulatory Requirements

The judgment in Reeves v Frain comprehensively examined the enforceability of Damages-Based Agreements (DBAs), ruling that the agreements were invalid due to non-compliance with statutory regulations on litigation funding, with significant implications for solicitors’ cost recovery in probate proceedings involving a £100 million estate.