Entries by Toby Moreton

PD57AD | Costs Consequences Of Disclosure Guidance Applications | When Matters Become Formal And Contested

In Voltaire Capital Holdings Limited & Ors v Watson & Ors [2025] EWHC 1948 (Comm), the court considered whether to depart from the default costs position under PD57AD para 11.5 (costs in the case) following a disclosure guidance application that escalated into a contested hearing. The Second Defendant sought additional search terms for electronic disclosure, but the Claimants largely succeeded, with the court ordering only limited exceptions. The Claimants sought costs of £94,159.75, citing the Second Defendant’s unreasonable approach, while the Second Defendant resisted, relying on PD57AD’s cooperative intent and the Claimants’ failure to serve a pre-hearing costs statement under PD44 para 9.5(4)(b). The court held the default position should be displaced, finding the hearing had effectively become a contested disclosure application, with the Claimants substantially successful despite the Second Defendant’s narrow wins on minor issues. The procedural failure on costs statements was immaterial, as costs were foreseeable. On quantum, the court reduced solicitors’ fees from £59,862.75 to £46,000, citing excessive rates and time spent, and cut counsel’s fees by £10,000, finding leading counsel unnecessary. A further 10% reduction (to £63,267) reflected the Second Defendant’s limited success. The final order required the Second Defendant to pay the Claimants’ costs summarily assessed at £63,267.

‘Henderson v Henderson’ Abuse Of Process | Late Costs Objection Survives Despite “Perverse” Reasoning Resulting In £Multi Million Costs Assessed At Nil

In The Winros Partnership v Global Energy Horizons Corporation [2025] EWHC 2044 (Ch), Mr Justice Marcus Smith heard an appeal concerning whether a fundamental costs objection raised for the first time at detailed assessment constituted an abuse of process. The paying party contended that bills totalling millions of pounds under three conditional fee agreements should be assessed at nil because the fees remained contingent when rendered. The Senior Costs Judge upheld the objection despite finding it “could easily have been added” at earlier hearings [§15(ii)]. On appeal, Marcus Smith J found this reasoning “so wrong as to be perverse” [§16] and that the Henderson v Henderson abuse argument should have succeeded [§18]. However, the appeal was dismissed because the court’s own case management error—directing preliminary issues without first requiring liability pleadings [§25(iii)-(iv)]—meant the parties could not be criticised for not raising additional issues [§26]. The case confirms that fundamental costs liability challenges must ordinarily be raised at the earliest opportunity, with strike-out the appropriate remedy absent exceptional circumstances.

Court Orders Inspection In s70 Solicitors Act Assessment Post Service Of Points Of Dispute In The Absence Of Informative Replies

In Diagnostics.AI Limited v Dentons UK & Middle East LLP [2025] EWHC 2071 (SCCO), the court considered whether inspection of a solicitor’s files could be ordered during solicitor-client assessment proceedings under Section 70 of the Solicitors Act 1974, where the parties had bypassed the usual inspection stage before service of points of dispute. The Claimant sought inspection to break a negotiation deadlock after the Defendant provided only minimal replies to its 72-page points of dispute, while the Defendant argued the court lacked jurisdiction and that inspection would be unduly burdensome (estimating preparation costs at £15,000–£25,000). Costs Judge Nagalingam held that jurisdiction existed under CPR Part 31, the court’s inherent jurisdiction in solicitor-client assessments (following Edwards v Slater & Gordon [2022] EWHC 1091 (QB) and Hanley v JC&A), and CPR 3.1(2)(p)’s general case management powers. The judge rejected the Defendant’s objections as obstructive, noting inspection would streamline the assessment and that preparation costs would largely be incurred anyway. Inspection was ordered limited to documents relating to work in the bills, with the Claimant bearing costs for isolating duplicates and the Defendant paying the application costs (summarily assessed if not agreed). The ruling emphasised proportionality and the overriding objective, with inspection costs to be costs in the assessment.

Criminal Legal Aid And The Indemnity Principle | No Escape From Legal Aid Rates In Contempt Proceedings

In MBR Acres Ltd & Ors v McGivern [2025] EWHC 2070 (KB), the High Court confirmed that parties defending civil contempt proceedings under criminal legal aid cannot recover inter partes costs beyond legal aid rates, as the indemnity principle applies without statutory disapplication. Ms McGivern successfully defended contempt proceedings (dismissed as “totally without merit” with indemnity costs) but her £120,292.21 bill was assessed at £20,673.34—below the Respondents’ Calderbank (£21,000) and Part 36 (£33,000) offers—resulting in her paying £53,044.65 for their assessment costs. Sweeting J (with Senior Costs Judge Rowley as assessor) distinguished criminal from civil legal aid, noting the absence of any provision equivalent to Regulation 21 of the Civil Legal Aid (Costs) Regulations 2013. Following Liverpool Victoria v Khan [2022] EWHC B8 (Costs), the court held that neither paragraph 8.10 of the Criminal Contract Specification nor Regulation 9’s non-application to the High Court could override the indemnity principle. Arguments that Ms McGivern could retrospectively revoke legal aid or rely on the LAA’s £28,556.58 assessment were rejected. The decision confirms that without express legislative intervention, criminal legal aid rates cap inter partes recovery even where this transforms litigation success into financial loss.

Guide To The Intermediate Track And Fixed Recoverable Costs

The legal landscape in the UK civil courts underwent a significant transformation on October 1, 2023, with the introduction of the Intermediate Track and the expanded Fixed Recoverable Costs (FRC) regime. This isn’t just a minor tweak; it’s a fundamental shift designed to bring greater certainty and proportionality to legal costs for claims valued between £25,000 and £100,000.

QOCS In 2025 | The Current Landscape

The world of Qualified One-Way Costs Shifting (QOCS) in England and Wales has seen significant shifts since the Civil Procedure Rule (CPR) amendments of April 6, 2023. For legal practitioners, understanding these changes is not just beneficial, it’s essential for navigating the complexities of litigation in 2025 and beyond. These reforms have fundamentally altered defendants’ […]

Security For Costs In UK Civil Litigation

Legal proceedings can be a significant financial undertaking, and the prospect of incurring substantial, irrecoverable costs is a genuine concern for both practitioners and their clients. One crucial mechanism within the UK legal system designed to address this risk is the application for security for costs. This is a strategic tool that can significantly impact […]

Understanding Non-Party Costs Orders

When a legal dispute ends, the question of who pays the legal costs is paramount. Typically, the losing party foots the bill for the winner’s reasonable costs. But what happens if the losing party can’t pay, perhaps due to insolvency? Or what if someone else was secretly pulling the strings or stood to gain the […]

The Extended Fixed Recoverable Costs Regime | 18 Months On

I. The Extended FRC Regime | Where Are We 18 Months On? A. The Landscape Shift | October 2023 Overhaul and Its Goals October 1, 2023, marked the rollout of the extended Fixed Recoverable Costs (FRC) regime; a significant overhaul that expanded FRC to cover most civil claims with a value up to £100,000. Previously, […]

CPR 44.2(8) | Payments On Account In Civil Litigation

In the world of civil litigation, managing cash flow can be as crucial as the legal arguments themselves. When a court orders one party to pay another’s legal costs, the final amount is often subject to a detailed assessment process, which can take time. This is where Civil Procedure Rule (CPR) 44.2(8) comes into play, offering a mechanism for the winning party to receive a portion of their costs upfront. At TMC Legal, we believe in empowering our clients with clear insights into such vital procedural rules.