The appellant in this appeal was denied a Protective Costs Order (PCO) on grounds that despite the outcome being of “wider interest to future litigants in a similar position, insurers and the legal profession” the appellant herself had “an overwhelming private interest in the outcome of the appeal”.
The Court of Appeal has upheld the decision of both Master Gordon-Saker (at first instance) and HHJ Klein (on appeal) which we reported last year that the former client’s Points of Dispute on a Solicitors Act assessment between himself and his former solicitors were insufficiently particularised as to afford the solicitors to know the case against them and meaningfully respond in advance of the assessment hearing.
The court exercised its discretion against allowing a defendant to set off ‘costs against costs’ in a case where it unsuccessfully applied to resurrect a discontinued claim with a view to striking it out and thus removing the protection of QOCS by virtue of CPR 44.15.
In Rowe v Ingenious Media Holdings plc [2020] EWHC 235 (Ch), the High Court determined costs and security applications in litigation involving over 500 investors claiming losses from failed tax-efficient investment schemes. The claimants sought several liability for adverse costs; multiple defendants applied for security against the claimants’ commercial funder, Therium. The court granted several liability, holding that in large-scale litigation with unconnected claimants the risk of collection should lie with defendants, following Ward v Guinness Mahon [1996] 1 WLR 894. Liability was apportioned pro rata to investment values rather than per capita, given the significant disparity in claim sizes (£36,000 to £10.5 million). Security for costs was ordered against Therium under CPR 25.14, but only for funded claimants, with amounts totalling £3.95 million across four defendant groups after discounting for unreliable ATE policy coverage. The decision confirms that several liability applications are not contingent on security being provided—no automatic quid pro quo exists between the applications.
Following the dismissal of all claims by the High Court in this construction dispute, and an award of costs on the standard basis to the appellant (defendant), the Court of Appeal had to determine three issues, namely:
a) Whether it was a case in which the respondents’ pursuit of what were said to be “speculative, weak, opportunistic or thin claims” could properly be described as out of the norm such as to warrant an order for indemnity costs.
b) Whether the respondents’ failures to accept and subsequently to beat the appellant’s Part 36 offer, made at a very early stage in the proceedings, also meant (either separately or taken cumulatively with the pursuit of these particular claims) that an order for indemnity costs was warranted.
c) The relevance, if any, of the fact that the appellant’s approved costs budget was said to be £415,000, but that any assessment on the indemnity basis would start at the appellant’s actual costs figure of not less than £724, 265.
Lionel Persey QC sitting as a Deputy Judge of the High Court granted the Defendants relief from sanctions following the late filing of their costs budget by 13 days. It was accepted that the breach had been inadvertent and understandable given that the Defendants had been relying on an agreed table of procedural steps to be completed before the CCMC, which made no mention of costs budgeting. It was found that the Defendants had “dropped the ball” but that their default was not egregious in the particular circumstances of the case.
A challenge we are seeing increasingly often goes along the lines of:
“if the receiving party could have, but did not, obtain a fee remission then the fee in question was unreasonably incurred and is not payable by the paying party.”
There have been some competing first instance decisions, leaving the issue ripe for argument in each case.
The Court of Appeal determined the following costs issues following a successful second appeal:
(1) Do the rules governing fixed costs in CPR r.45.17 to 19 apply to the costs of the appeal?
(2) If not, does CPR r.52.19 apply?
(3) If CPR r.52.19 does apply, what order for costs should we make?
(4) Does the Qualified One-Way Costs Shifting regime in CPR Part 44 apply to the costs of the appeal so as to limit the extent to which any order may be enforced against the respondent?
Following a successful private prosecution of his former co-director, resulting in three years of imprisonment, the claimant was awarded payment of his prosecution costs out of central funds. The designated officer allowed him the sum of £150,000 plus VAT as against a total sum of £427.909.66.
The designated officer’s determination was based largely on the disallowance of central London rates on grounds that adequate representation could have been found more locally and the application of a Singh reduction based on a comparator with the notional cost of the case being brought by the CPS.
This case highlightds the importance of familiarising yourself fully with the retainer documentation under which you are acting.
In the course of a detailed assessment in the SCCO Deputy Master Friston (costs judge) found that the conditional fee agreements (there were three, of which one “The Third Agreement” was relevant to the instant proceedings) were so confusing as to be almost incomprehensible.