Entries by Toby Moreton

High Court Preserves Indemnity For Unsuccessful But Honest Executor Removal Applicants

In Shufflebotham & Anr v Shuff-Wentzel the claimants, two of three executrices, applied to replace all executors and trustees and to remove the defendant, the third executrix. HHJ Charman, sitting as a High Court judge, permitted the claimants to resign but refused to remove the defendant, appointing a professional trustee to act alongside her and a family representative. The defendant was the overall successful party entitled to her costs. The court was required to determine whether the claimants should pay those costs personally and whether they could recoup them from the estate. Applying Re Buckton and Price v Saundry, the judge characterised the proceedings as hostile litigation closest to a ‘beneficiaries dispute’, making the claimants jointly and severally liable personally. However, examining their conduct against the principles in Lewin on Trusts, the judge held they had acted honestly and reasonably in bringing necessary proceedings to address a genuine deadlock. Their right to indemnity from the estate was preserved, entitling them to recoup the costs paid.

Costs In Discontinued Judicial Review | When A Change Of Government Breaks The Causal Chain

In R (Public and Commercial Services Union) v Secretary of State for the Home Department the Court of Appeal dismissed an appeal against an order of no order as to costs following the discontinuance of a judicial review challenge to the Strikes (Minimum Service Levels: Border Security) Regulations 2023. After a general election, the incoming government—which had pledged while in opposition to repeal the underlying Act—confirmed it would not exercise the challenged powers pending repeal. The union sought costs, arguing it had achieved the relief sought. Applying R (M) v Croydon LBC, the Court held that causation between the litigation and the outcome is critical in settled claims. Following Speciality Produce Ltd v Secretary of State for the Environment and ZN (Afghanistan) v Secretary of State for the Home Department, the Court found the outcome would have occurred irrespective of the proceedings due to the clear pre-election commitment. The minister’s description of the regulations as “unduly restrictive” reflected political policy, not a concession of legal merit. The appeal was dismissed.

Costs In Settled Immigration Judicial Reviews | “Will Be Made” Creates A Legal Obligation; “Aims To Issue” Does Not

In R (Nisar and Others) v Secretary of State for the Home Department [2025] EWCA Civ 1646, the Court of Appeal (Bean LJ (VP), King and Warby LJJ) determined linked appeals on costs following settled judicial review claims concerning delays in entry clearance decisions. In each case, the SSHD had agreed to reconsider refused visitor visa applications by a specified date, failed to meet that deadline, and issued a further refusal shortly thereafter. The appellants had commenced judicial review proceedings challenging the delay, which were discontinued upon receipt of the decisions. Applying R (M) v Croydon LBC [2012] EWCA Civ 595, the court allowed the appeal in Nisar, holding that the SSHD’s letter stating a decision “will be made” by a specific date created a legal obligation, breach of which justified proceedings. The appeal in Mammedov was dismissed; the SSHD’s aspirational language (“aims to issue”) created no such obligation, and failure to raise the new issue of delay via a Pre-Action Protocol letter justified no order as to costs.

Consent Orders Settling Quantum Constitute ‘Judgment’ For CPR 36.17 Purposes

In Thomas v Secretary of State for the Home Department [2025] EWHC 3274 (KB), His Honour Judge Freedman, sitting as an additional High Court judge, determined costs consequences following settlement of the claimant’s unlawful detention claim. After a finding of liability, quantum was agreed at £16,000 and embodied in a consent order. The issue was whether this settlement constituted a “judgment” engaging the costs consequences under CPR 36.17, given that the sum exceeded the claimant’s earlier Part 36 offers. The defendant argued the rule required a formal judgment after trial. Applying the Court of Appeal’s reasoning in Vanden Recycling Ltd v Kras Recycling BV [2017] EWCA Civ 354, which focused on substance over form, Judge Freedman held the final, enforceable order for payment was in effect a judgment for CPR 36.17 purposes, a view supported by White Book commentary to CPR 40. The court accepted that the usual Part 36 costs consequences should run from 8 November 2021, set interest on costs at 7%, and ordered the claimant to bear the costs of an application dated 9 May 2025.

Solicitor Firm Debarred From Detailed Assessment For Failing To Disclose WhatsApp Communications

In MacInnes & Anor v DWF Law LLP, Costs Judge Nagalingam granted an application for a declaration that the defendant solicitor firm was in breach of an unless order concerning disclosure in Solicitors Act 1974 assessment proceedings. The defendant had been ordered to provide “a complete digital copy” of its files relating to the billed instructions but failed to disclose WhatsApp communications for which the claimants had been charged. The judge held that the defining criterion for disclosure was whether a communication had generated a charge on the invoices, not the medium used or the firm’s internal filing policy. This was not a decision that WhatsApp messages form part of a solicitor’s file as a matter of course; rather, if a charge is raised, the related communication forms part of the file. The defendant was found in breach and debarred from the main detailed assessment, though permitted to participate in the preliminary issues hearing following a slip rule correction. Costs were reserved.

Co-Claimants Pursuing Common Case Face Joint And Several Liability For Adverse Costs

In Baroness Lawrence & Ors v Associated Newspapers Ltd [2025] EWHC 3207 (KB), Senior Master Cook and Mr Justice Nicklin determined two costs applications in multi-party litigation. The first was the defendant’s application for a prospective order on adverse costs liability. Exercising its case management powers under CPR 3.1 and applying Stumm v Dixon (1889) 22 QBD 529, the court held that any unsuccessful claimant would be severally liable for the defendant’s ‘Individual Costs’ but jointly and severally liable with other unsuccessful claimants for ‘Common Costs’. The court found it imperative to determine this issue pre-trial so claimants understood the consequences of their litigation strategy before incurring substantial trial costs. The second issue concerned competing CPR 3.15A budget variation applications. The court allowed variations for both parties at reduced sums, notably holding that costs of maintaining a legacy email archive (£357,919) were recoverable legal costs, not business overheads. The court also directed amendment of the November 2024 order to constitute a proper costs management order under CPR 3.15(2).

Permission To Appeal Costs | When Hopeless Grounds And False Citations Justify A 75% Costs Award Against The Applicant

In Taiwo v Homelets of Bath Ltd [2025] EWHC 3173 (KB), the court refused the oral renewal of an application for permission to appeal orders dismissing a claim under section 57 of the Criminal Justice and Courts Act 2015 for fundamental dishonesty and requiring indemnity basis costs. Applying PD 52B para 8.1 and the guidance in Mount Cook Land Ltd v Westminster City Council [2004] 2 Costs LR 211, Constable J found exceptional circumstances justifying a costs award against the unsuccessful applicant. These included the hopelessness of several grounds, persistent pursuit through numerous undisciplined submissions, and the citation of false AI-generated authorities which increased the burden on the court and respondent. The applicant was ordered to pay 75% of the respondent’s costs from the date of the paper refusal, on the standard basis, with a £7,500 interim payment. A limited civil restraint order was made against the applicant and her litigation friend. The decision illustrates the costs risks of pursuing meritless appeals with procedural indiscipline.

No Order As To Costs Where Neither Party Is The “Successful Party” | Matrix v Musst

In Matrix Receivables Ltd v Musst Holdings Ltd, the court determined costs following a trial where the claimant partially succeeded, recovering £175,380.76 in unjust enrichment for a share of management fees, while its larger performance fee claim and all contractual claims failed. Both parties contended they were the successful party under CPR 44.2. The claimant relied on the “paying party” principle from AL Barnes v Time Talk and Fox v Foundation Piling Ltd, arguing the defendant’s lack of a Part 36 offer was significant. The defendant, citing Medway Primary Care Trust v Marcus, argued it succeeded in substance, as the claimant recovered less than 5% of its claim and the commercially critical “juice” of the action had failed. Sir Clive Freedman, sitting as a Deputy Judge of the High Court, held neither party was the overall winner. The modest recovery was disproportionate to the costs incurred, weak contractual claims had been maintained until trial, and the claimant’s principal had given evidence for the defendant’s opponent in related litigation. The court made no order as to costs.

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Monthly Costs Law RoundUp | November 2025

Indemnity Costs | Unfounded Claims & Dishonest Conduct Probate Challenger Ordered To Pay Indemnity Costs After Maintaining Baseless Opposition For Eight Years (04/11/2025) In Burgess v Whittle [2025] EWHC 2829 (Ch), HHJ Paul Matthews held that maintaining a probate challenge without reasonable basis for eight years constituted grossly unreasonable conduct justifying indemnity costs. The court […]

Parties Cannot Be Expected To Second-Guess Their Experts | Planning Inquiry Costs Award Quashed

In The King (on the application of Halton Borough Council) v Secretary of State for Housing, Communities and Local Government [2025] EWCA Civ 1566, the Court of Appeal allowed the Council’s appeal against a partial costs award made following a called-in planning inquiry. After the Council’s expert witness conceded under cross-examination that he would advise refusing permission, the Council withdrew its support and the inquiry collapsed. The Secretary of State’s decision-maker found the withdrawal unreasonable under the Planning Practice Guidance and awarded costs to the HSE and Viridor Energy Limited under section 250(4) of the Local Government Act 1972. The Court of Appeal held the decision was legally flawed, identifying a critical contradiction in reasoning and ruling that expecting a party to ensure its expert evidence would withstand cross-examination was not a “normal procedural requirement”. A party is not expected to second-guess its expert. The Council’s withdrawal was for good reason and the costs orders were quashed.