Entries by Toby Moreton

Interim Costs Payment Refused In Liability Admitted High Value MT Case

“…in contrast to the position in X v Hull, there have been early Part 36 offers in this case. If the approach I have set out above … is the correct approach to the second stage of the determination then I could not with an appropriate degree of certainty, bearing in mind also potential deductions for contributory negligence, conclude that there is sufficient security for the Defendant’s costs in an immediate award of damages or otherwise as proposed by Mr. Reddiford. Put another way, if I were persuaded that the underlying costs orders sought should be made, the effect of making an interim payment would be to diminish the security which is to be found in those costs orders. In all the circumstances even if I were persuaded to have made the final costs orders, I would not therefore have been satisfied that it was appropriate to make an order for interim payment of costs.”

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Informed Consent And Alleged Termination Of Retainer | High Court Appeal

“…in my view the Judge was entitled to find that the Respondent had neither terminated the Conditional Fee Agreement nor done what amounted to a repudiatory breach of that agreement. Nor do I agree with the Appellant that the correspondence showed an irretrievable breakdown in the necessary relationship of trust and confidence. In modern times, solicitors have to accept that complaints (whether of poor service or as to fees) go with the territory of professional practice.”

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New Guideline Hourly Rates Relevant To Work Done Prior To 1 October 2021

“I have taken into account the Guide to the Summary Assessment of Costs re-issued by the Master of the Rolls in September 2021 (the “Guide”) and to be used from 1 October 2021.  The guideline hourly rates in the previous guide were not ones that I would have adopted without more in any event, as is well recorded they were extremely out of date by 2021.”

Costs Of And Incidental To Proceedings In The Case Of Compulsory Purchase And Analogous Orders

“The Civil Procedure Rules, as secondary legislation, have the force of law. Assessment on the standard basis (Newall v Lewis) in itself entitles a receiving party to recover costs “incidental to” proceedings. It would follow as a matter of law that an order of the Administrative Court, made under section 250(5), for the costs of an inquiry to be assessed on the standard basis, extends to costs incidental to the inquiry even if that is not expressly stated.”

Calderbank Offers Not To Be Equated To Part 36 In Split Trial Cases

It is well-established that the existence of a Part 36 Offer in the case of a split hearing displaces the normal presumption that costs will be awarded at the end of the first stage. Instead, in such cases, the normal position is that, save in exceptional circumstances, costs would be reserved.

But what is the position where a Calderbank offer has been made, and the judge is told of its existence? Is the judge, in effect, bound to treat such an offer as equivalent to an offer under CPR 36 and defer a ruling on costs until the conclusion of all stages of the litigation?

Part 36 Offer | Service By Email Validated But Not Without Consequence

“I accept that a failure to comply with the rules of service in CPR Part 6 should not be taken lightly … No reason has been put forward by the claimant as to why the rules were not followed. On the other hand, it is clear that the defendants’ solicitors received the Part 36 offer on 15 December 2020. Mr Seitler does not contend otherwise. No complaint was made about the method of service of the Part 36 offer until shortly before the hearing on 3 November. No suggestion has been made that there is any prejudice to the third defendant in the Part 36 offer having been sent by email rather than having been served in some other way, for example by post. In these circumstances, it would in my view be … “a triumph of form over substance” if the court were to make an order invalidating the Part 36 offer…”

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Non Statutory Assessment Of Costs | Power To Order A Final Bill And Breakdown

“…the Defendants have already accepted for the purposes of these proceedings that the Claimant’s General Retainer invoices, whether individually or collectively, had the status of a statute bill or bills, and both parties are now in consequence bound by a judgment that can only have been given on that basis. It is, as Mr Slade has said, too late for them to pursue another case now.”

CPR 45.29J | Exceptional Circumstances

“In my judgment there were, in this case, factors which would entitle the Deputy District Judge to find that there are exceptional circumstances making it appropriate to effectively award costs higher than the fixed costs regime, and the Deputy District Judge took those matters properly into consideration. No guidance is given in the notes to the White Book in relation to the applicability of this test. However, I find that the Deputy District Judge looked at all relevant matters and, in reference to those matters which he referred to in his judgment, particularly considering the correspondence between the parties, it was appropriate for him to reach the conclusion that there were exceptional circumstances here, making it appropriate to consider a claim for a higher amount of costs. Those factors as stated were not only the value of the claim, but also the permanent disability and the Ogden calculation. All of those factors are in my judgment capable of being exceptional circumstances in the context of CPR45.12, i.e. within a fixed costs regime.”

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Costs Capping, Budgeting, Proportionality And Cases Of Wider Importance

“In my judgment, the Claimants are right that it is wrong in principle for a party to use the CCO regime, in effect, as a proxy for the abuse of process jurisdiction. Similarly, it would be wrong for the court to impose a CCO in order to punish a party who has lawfully brought proceedings in this jurisdiction because the court thinks that they should have issued their proceedings in a different jurisdiction…. the imposition of a CCO would almost certainly have the effect of forcing the Claimants to abandon their claims. If the Defendant considered that the various reasons put forward … meant that the continuation by the Claimants of these proceedings would be an abuse of process, then the Defendant should have persisted with its strike out application.”

No Costs Against Costs Set Off Allowed In A QOCS Case | Supreme Court Decision

…we do not consider that the well- established jurisdiction to direct set-off of costs against costs under rule 44.12 is displaced by the QOCS scheme, provided that there is an order for damages or interest and that the headroom provided by that order has not been exhausted by other means of enforcement. But for the reasons already given we do not accept the submission that it is only the net costs entitlement that has to be brought into account under rule 44.12(1)