Entries by Toby Moreton

Costs Of Assessment Where Bill Reduced To Under £75,000

“I agree with the Claimant that rule 47.15 is self-contained in the sense it does not say what the Defendant wants it to say, namely that if a bill is brought in for assessment at over £75,000 but is allowed at less than that figure, it means that it was obviously exaggerated, so provisional assessment costs must apply.  On the contrary, the rule says no such thing, in circumstances where it would have been open to the rule makers to provide that where a bill was reduced under £75,000, the receiving party would only be entitled to provisional assessment costs rather than, as here, to detailed assessment costs.”

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Interim Statute Bills | Contractual Rights And Obligations

“I fully accept that Costs Judge Rowley in Masters v Charlies Fussell appears to suggest that a solicitor does bear this additional obligation [to his client not only to advise of his rights under the Solicitors Act to ask for an assessment but also to explain what the legal consequences of the service of an interim statute bill would be] but I am not convinced that Mr Justice Fulford’s decision … is sufficient authority to support the proposition. I fully accept the practical difficulties for the client in applying for an assessment of his own solicitor’s costs whilst still instructing him in the underlying litigation as identified in paragraph 19 above. Perhaps this would be a good reason for amending the legislation or for the Solicitors Regulation Authority to amend the Code of Conduct or introduce regulations to like effect. In the absence of such amendment however the situation remains that there is no statutory or regulatory obligation to advise a client what the legal consequences are likely to be for him or her when a solicitor serves an interim statute bill. It is not normal for provisions explaining the legal consequences of contractual terms to be implied into a contract unless there is some additional statutory or regulatory obligation to do so as a result of a perceived need for consumer protection. Whilst there may be such a need here it has not resulted in any changes to the Act or relevant regulatory reform. In the absence of such, I take the view that if there is a clear contractual term reserving the right of a solicitor to deliver interim statute bills then he is entitled to do so, without having to spell out what the legal consequences of such an act would be for the client.”

Costs Thrown Away, Indemnity Costs And Payments On Account

Costs thrown away does not, as a matter of principle, mean the costs of the entirety of the work done to date, or in all of the preparations for the trial. On the contrary, it is only the cost of the work that has been done and which will have to be repeated for the relisted trial which will be recoverable (Fern Trading v Greater Lane [2021] EWHC 1939 (Comm) per HHJ Pelling QC at [28]). If an element of costs incurred remains for the benefit of a party at a subsequent hearing it will not have been thrown away.

Parties Can Contract Out Of Fixed Costs | CA Decision

The phrase “subject to detailed assessment” is a technical term, the meaning and effect of which is expressly and extensively set out in the rules. It plainly denotes that the costs are to be assessed by the procedure in Part 47 on the standard basis (unless the agreement or order goes on to provide for the assessment to be on the indemnity basis). The phrase cannot be read as providing for an “assessment” of fixed costs pursuant to the provisions of Part 45 unless the context leads to the conclusion that the wrong terminology has been used (by the parties or by the Court) so that the phrase should be interpreted otherwise than according to its ordinary meaning.

Partial Success, Conduct, Offers And Alleged Exaggeration

“…even if the more flexible approach contended for by the Claimant is applied, I do not consider it realistic to argue that the Claimant did better at trial than the offer. By going to trial he recovered £371,258.36 less in damages than the offer. Although by going to trial he also secured the peace of mind of the provisional damages for epilepsy, I accept the Second Defendant’s arguments that the additional £371,258.36 in the offer accommodated that claim. It follows that the Claimant did not beat the offer of £3,550,000 or the Second Defendant’s last offer £4,000,000.”

Refusal To Mediate Does Not Always Justify Indemnity Costs

“In my judgment, the Defendants’ failure in this case to engage constructively with the mediation proposals does not justify an order for costs against them on the indemnity basis. To make such an order would involve elevating that factor over others which weigh in their favour. Those others include them successfully resisting a significant part of a claim put at around £4.3m (see the Judgment at [90]-[91]) and doing significantly better than either of the Claimants’ Part 36 offers proposed (thereby avoiding the consequences of CPR 36.17(1)(b)). That is a very different outcome from the one in Garritt-Critchley.”

CPR 44.2 And The Courts’ Discretion As To Costs

“In my judgment the term “parties” is more likely than not to refer, when reading CPR 44 as a whole, to the parties between whom there is a dispute. There was no dispute between the First, Second and Fifth Respondents in this case…  As regards discretion, if there is a discretion to exercise, contrary to my finding above, the First Respondent claims it would be “grossly” unfair not to be able to recover the costs of preparing and attending court where the First Respondent was neutral as to the outcome. It is true that the First Respondent was neutral. There was no dispute between him and the other Respondents. In these circumstances, my judgment, it would be unfair to visit the First Respondent’s costs of attending court on these Respondents.”

QOCS, Legal Aid And Interim Payments On Account Of Damages

“QOCS applies to proceedings which include a claim for damages for personal injuries (CPR 44.13(1)), the Claimant falls within the definition of those to whom QOCS applies (CPR 44.13(2)) and there is nothing in the rules to exclude him because he was legally aided … there is no difficulty in the approach to be taken in the case of a legally aided party who is also entitled to QOCS, because legal aid costs protection relates to the amount to be paid and QOCS relates to enforcement. The applicability of QOCS is not a bar to a determination under s.11 of the 1999 Act (or s.26 of the 2012 Act), although, in practice, if QOCS does apply, there may be little reason for the receiving party to make a request for a determination.”

Late Amendment To Points Of Dispute Refused

“I do not accept … that there is a presumption under the rules that documents will be accepted, no matter how late nor how many new points they raise … It cannot be gainsaid that there will come a time when it is … “just too late”. It cannot be characterised as perverse or otherwise unlawful for the Master to have come to that conclusion in this case for the reasons he gave in his judgment.”