Entries by Toby Moreton

CPR 3.15(8) | £870 Hourly Rate And £90,000 Brief Fee For Leading Counsel Deemed Disproportionate In £1.2m Claim

In Pontis Finance LLP v Karam, Missick & Traube LLP the court determined reasonable and proportionate budgeted costs following administrative delays that converted future costs to incurred costs. The central issue was proportionality of the Claimant’s £489,891.31 budget for a £1.2 million professional negligence claim, featuring solicitors’ rates substantially exceeding guideline rates and instruction of both leading and junior counsel. The court found the overall costs disproportionate for a claim of moderate complexity. While CPR 3.15(8) restricts courts to approving phase totals rather than specific rates, following GS Woodland Court GP1 Ltd v GRCM Ltd, excessive rates combined with hours billed could render totals disproportionate. Applying a broad-brush approach, the court reduced Trial Preparation from £136,550 to £115,000 and Trial from £88,700 to £50,000, assessing rates against London Band 2 rather than Band 1 guidelines. The decision demonstrates how guideline rates remain critical in proportionality assessments despite CPR 3.15(8) limitations.

When Part 36 Offers Demand Total Capitulation | Matière v ABM

In Matière SAS v ABM Precast Solutions Ltd the court determined consequential costs orders following a liability judgment. The central issue was whether the claimant was entitled to the full beneficial consequences of its April 2022 Part 36 offer under CPR 36.17(4). The court found the offer was a genuine attempt to settle the claim, representing a 12% concession, but was not a genuine attempt to settle the counterclaim, which it valued at ‘nil’ against a multi-million pound valuation. Consequently, it was held unjust to apply the indemnity costs consequence to the counterclaim. Matière was awarded its costs of the claim on the standard basis to the expiry of the relevant period and on an indemnity basis thereafter, but its costs of the counterclaim were awarded on the standard basis throughout. The court rejected the defendant’s application under CPR 44.2 for a 70% reduction in costs, finding the sub-issues it succeeded on were merely stepping stones to its overall failed loss of chance claim. The court awarded the 10% uplift on damages (£37,329.51) per CPR 36.17(4)(d). Enhanced interest on the principal sum and on costs under CPR 36.17(4)(a) and (c) was awarded, but the court exercised its discretion to set the rate at 7% above base, not the maximum 10%, and only for the claim costs from the relevant period. A payment on account of costs was ordered at 90% of the approved budget, amounting to £935,000.

Costs Capping Order | Court Sets Different Caps Despite Defendant’s Push For Parity In Facial Recognition Challenge

In Thompson & Carlo v Commissioner of Police of the Metropolis [2025] EWHC 2355 (Admin), the court determined a costs capping application under sections 88 and 89 of the Criminal Justice and Courts Act 2015 in judicial review proceedings challenging the Metropolitan Police’s facial recognition policy. The claimants sought asymmetric caps of £40,900 on their liability and £107,700 on the defendant’s liability, while the defendant argued for identical caps of £107,700. The claimants were indemnified by Big Brother Watch, which held £235,221 in unrestricted funds and £262,699 in reserves but claimed these were needed for operational costs and governance requirements. The court found the organisation could reasonably contribute more than the £40,900 raised through specific fundraising, stating it was not unreasonable to expect Big Brother Watch to prioritise the litigation and risk a “modest dip” in its reserves. The court imposed differential caps of £70,000 on the claimants’ liability and £100,000 on the defendant’s liability, finding this struck a fair balance between access to justice and the call on public funds. The court confirmed that “reciprocal” caps under section 89(2) need not be identical.

CPR 45.8 Fixed Costs Apply To Interim Applications From Date Of Provisional Track Allocation

In Mazur and Ors V CRS LLP [2025] EWHC 2341 (KB) the High Court allowed an appeal against a costs order made following an application to lift a stay of proceedings. The stay had been imposed due to an issue concerning the authorisation of an individual conducting litigation. The court addressed two principal costs issues: first, whether the judge at first instance, HHJ Simpkiss, had erred in law in his interpretation of the Legal Services Act 2007, which formed the basis for the costs order against the Appellants; and second, whether the judge had the power to award costs of £10,653 given the claim’s provisional allocation to the Intermediate Track, which engages the fixed costs regime under CPR Part 45. On the first issue, the court found the judge had erred in law by incorrectly relying on an SRA letter and misinterpreting section 21(3) of the 2007 Act, holding that an employee must themselves be authorised to conduct litigation and cannot merely act under an authorised person’s supervision; this legal error vitiated the basis for the costs award. On the second issue, the court held that CPR 45.8 applied as the case was on the Intermediate Track, capping recoverable costs for the interim application at a fixed sum of £333 plus a court fee of £303. The judge had not identified the ‘exceptional circumstances’ required by CPR 45.9 to depart from this cap, and the substantial compliance with Precedent U did not affect the application of the fixed costs regime. The court quashed the costs order and varied it to ‘no order as to costs’.

Court Refuses Costs-Only Joinder But Orders Consolidation in Will Dispute

In Ivey & Ors v Lythgoe & Anor [2025] EWHC 2325 (Ch) the High Court determined an application concerning the involvement of a non-party will-drafter, Trust Inheritance Limited, in probate proceedings. The claimants sought either to join the respondent as a costs-only party under CPR 46.2 to facilitate a future non-party costs order under section 51 of the Senior Courts Act 1981, or to consolidate the probate claim with a separate County Court negligence claim against the respondent. The court refused the application for joinder as a costs-only party, distinguishing authorities like Re Bimson and applying the principles from Deutsche Bank AG v Sebastian Holdings Inc. It held the summary procedure was inappropriate where the respondent actively contested the negligence allegations, as this would require a full trial on liability, causation, and quantum. The court granted the alternative application, ordering consolidation of the two claims under CPR 3.1(2)(h) as they arose from the same factual matrix, a course not opposed by the respondent. Following consolidation, the court exercised its power under CPR 3.1(2)(o) to order the respondent to attend a scheduled mediation, but also mandated the claimants to serve their particulars of claim a month prior to provide sufficient detail. The consolidated proceedings were stayed pending the mediation’s outcome.

Costs Consequences | Indemnity Costs Awarded for “Outrageous” Evidence and Dishonest Defence

In Xtellus Capital Partners Inc v DL Invest Group PM S.A. the court determined consequential matters following a substantive judgment entered for the claimant. On the basis of assessment, the court held the defendant’s conduct, characterised by a dishonest defence and evidence found to be “patently false” and “bordering on the outrageous”, was well outside the norm and justified a full order for costs to be assessed on the indemnity basis. Consequently, the court declined to rule on the claimant’s application to vary its costs budget upwards, finding CPR 3.18 did not apply on an indemnity assessment, rendering the variation application unnecessary. The court awarded a payment on account of costs of £700,000. Regarding interest, pre-judgment interest on the principal sum was awarded at a compensatory rate of 4.24% (a weighted average Euribor plus 1%) from the respective due dates for each success fee. Post-judgment interest was set at a forward-looking compensatory rate of 3.05%. For interest on costs, the court awarded the Bank of England base rate plus 1%, rejecting the claimant’s claim for a US Dollar-based rate, finding the claimant, by choosing an English jurisdiction clause, must be taken to have accepted costs would be incurred in sterling. A further £36,750 was ordered for interest on the payment on account.

QOCS Protection Lost Where Dishonesty Inflated Claim Value By 100%

In O’Connell v Ministry of Defence the court considered the defendant’s application for a finding of fundamental dishonesty to displace the claimant’s QOCS protection under CPR 44.16(1). Following dismissal of the substantive personal injury claim on liability, the costs hearing focused on whether the claimant’s presentation of her disability was fundamentally dishonest. The defendant relied on surveillance evidence from March 2022 showing the claimant performing physical activities inconsistent with her reported disability, evidence of her responsibility for horses contrary to her accounts, and representations about vehicle adaptations, including Facebook messages seeking false evidence about work that had never been done. The claimant contended the surveillance showed brief, exceptional activity enabled by medication and that inconsistencies were due to litigation stress. Applying the dishonesty test from Ivey v Genting Casinos Ltd [2018] AC 391, Christopher Kennedy KC sitting as a Deputy High Court Judge found the claimant knew her evidence was untrue and that it was dishonest by ordinary standards. Applying Howlett v Davies [2018] 1 WLR 948 and the three questions from Muyepa v Ministry of Defence [2022] EWHC 2648, the court found the dishonesty began by December 2018, went to the root of the claim, and would have resulted in the dishonestly inflated claim being worth perhaps double the underlying valid claim. The court granted permission to enforce any costs order to its full extent, finding this an appropriate case to engage the exception to QOCS protection in CPR 44.16(1).

£70,000 Costs Order Upheld Against Unrepresented Tenants For Vexatious Conduct In The FTT (Property Chamber)

In  Coogan & Anor v Taheri & Anor the Upper Tribunal considered an appeal against a £70,000 costs order made by the First-tier Tribunal (Property Chamber) under rule 13(1)(b) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013. The FTT had made the order after finding the appellant tenants had acted unreasonably in bringing and conducting proceedings, which included an application for the appointment of a manager and a challenge to service charges. The appeal centred on whether the FTT had correctly applied the three-stage test from Willow Court Management Co (1985) Ltd v Alexander [2016] UKUT 290 (LC) for making a costs order in a normally ‘no costs’ jurisdiction, specifically whether the conduct was unreasonable and whether the discretion to award costs was properly exercised. The Upper Tribunal upheld the FTT’s decision, confirming that unreasonable conduct under rule 13(1)(b) includes vexatious behaviour or conduct designed to harass rather than advance resolution, as per Ridehalgh v Horsefield [1994] Ch 205. It found the FTT was entitled to conclude the tenants, despite being litigants in person, had pursued obviously hopeless and historically baseless allegations, including serious accusations of fraud and bribery, in a vexatious manner. The tribunal also noted the FTT’s refusal of the tenants’ application under section 20C of the Landlord and Tenant Act 1985, which was a subsidiary issue on appeal. The appeal was dismissed and the significant costs order stood.

Summary Assessment | No Justification Found For Indemnity Costs, Leading Counsel, Multiple Fee Earner Attendance Or £750+ Hourly Rates

In Saudi Arabian Airlines Corporation v Sprite Aviation No.6 DAC [2025] EWHC 1663 (Comm), the Commercial Court’s summary assessment of commercial litigation costs applied guideline hourly rates and proportionality principles to extension application costs. The defendant sought costs on the indemnity basis following the claimant’s disclosure extension application, arguing lack of transparency about Saudi data protection issues necessitated the hearing, while the claimant contended costs should be in the case as a routine application. HHJ Pelling KC awarded standard basis costs, finding the application avoidable with initial frankness but conduct insufficient for indemnity costs under the Excelsior test. The summary assessment applied proportionality principles from Kazakhstan Kagazy Plc v Zhunus and Samsung Electronics Co. Ltd v LG Display Co. Ltd, rejecting premium hourly rates for Grade A fee earners (£744-760 vs £566 guideline rates) as unjustified for straightforward disclosure extensions. Significant reductions followed: leading counsel’s £12,245 fees disallowed entirely; multiple solicitor attendance at hearings rejected; document preparation time cut from 40.6 to 18.8 hours; costs lawyer fees reduced from £1,625 to £1,200. The judge allowed London 1 rather than London 2 rates due to claim size but emphasized guideline hourly rates as the commercial court default, substantially reducing the defendant’s £75,000+ claim to a proportionally assessed sum.