Court Orders Partial Costs After Defendant’s Successful Application Challenging Graduate School’s Claim

Background

The case of CCP Graduate School Ltd v The Secretary of State for Education (2024 EWHC 822 (KB)) involved a claim brought by CCP Graduate School Ltd against the Secretary of State for Education. The claim was heard in the High Court of Justice, King’s Bench Division, and the judgment was delivered by Master Dagnall on January 29, 2024. The procedural history of the case is complex, involving multiple applications and hearings. The claimant sought various remedies, but the court ultimately ruled in favour of the defendant, leading to the determination of costs.

The claimant’s application for permission to appeal and to extend time was agreed by both parties to have no order as to costs, reflecting a mutual understanding that this aspect of the proceedings should not incur additional costs burdens. The main issue before the court was the determination of general costs following the defendant’s overall success in the case.

The claimant’s arguments were based on several legal grounds, but the court found that even if the claimant had succeeded on certain sub-issues, these did not affect the ultimate outcome. The defendant, as the successful party, sought costs under the Civil Procedure Rules (CPR), specifically CPR 44.2, which grants the court discretion over costs orders.

Throughout the proceedings, both parties engaged in extensive legal argumentation, with the claimant attempting to limit the costs awarded to the defendant by highlighting partial successes on sub-issues. However, the court’s decision was influenced by the defendant’s overall victory and the conduct of the parties during the proceedings.

The costs determination was further complicated by the defendant’s submission of various spreadsheets related to student funding, which led to modifications in their case. The court found that these modifications lacked clear justification and decided to exclude half the costs associated with these spreadsheets from the defendant’s recoverable costs.

The claimant’s failure to comply with a court direction regarding the provision of a statement on interim costs payment also influenced the court’s decision. This non-compliance was seen as a factor in determining the reasonableness of the interim payment amount.

The defendant submitted a detailed costs schedule totalling £169,000, comprising £14,000 in counsel’s fees and £155,000 in solicitors’ costs. The claimant’s costs schedule was noted to be structured differently, with a significant portion allocated to counsel’s fees.

The court’s approach to determining costs was guided by CPR 44.2, which emphasizes the court’s discretion in making costs orders based on the conduct of the parties and the proportionality of costs to the issues in dispute. The court ultimately ordered an interim payment of £75,000, reflecting a balance between the defendant’s costs and the need for proportionality.

Costs Issues Before the Court

The primary costs issue before the court was whether the claimant should pay the defendant’s costs in full or in part, given the claimant’s partial successes on certain sub-issues. The court had to consider the general rule under CPR 44.2(2)(a), which states that the unsuccessful party will typically pay the successful party’s costs, but also allows for exceptions based on the conduct of the parties and other circumstances.

Another significant issue was the determination of a reasonable sum for an interim payment on account of costs. The defendant sought £100,000, two-thirds of their total costs, while the claimant suggested a lower figure. The court had to assess what amount was reasonable and proportionate to the matters in issue, considering factors such as the claimant’s failure to comply with court directions and the structure of the costs schedules submitted by both parties.

The court also addressed the issue of whether certain costs, specifically those related to the defendant’s spreadsheets and witness statements, should be excluded from the recoverable costs due to a lack of clear justification for their preparation.

The Parties’ Positions

The claimant, represented by Mr. Giles, acknowledged that they were the unsuccessful party and thus should pay the defendant’s costs. However, Mr. Giles argued that the claimant had succeeded on certain sub-issues and that these should be taken into account when determining costs. He suggested that only a proportion or limited part of the defendant’s costs should be awarded, given the claimant’s partial successes.

The defendant, represented by Mr. McGurk, contended that they were the overall successful party and should therefore receive all their costs. Mr. McGurk pointed out that even if the claimant had succeeded on the direct contract argument, the defendant would still have prevailed due to other legal grounds. He argued that the claimant’s successes on sub-issues were minor and did not justify splitting costs.

The defendant also sought a payment on account of costs under CPR 44.2(8), submitting a detailed costs schedule and arguing that their costs were reasonable and proportionate to the issues in dispute.

The Court’s Decision

The court’s decision on costs was guided by CPR 44.2, which provides the court with discretion to determine whether costs are payable and in what amount. Master Dagnall noted that while the claimant had succeeded on certain sub-issues, these did not affect the ultimate outcome of the case. Therefore, the court did not consider it just and appropriate to split costs based on these partial successes.

Regarding the defendant’s spreadsheets, the court decided to exclude half the costs associated with their preparation and related witness statements, as these modifications lacked clear justification.

For the interim payment on account of costs, the court ordered £75,000, influenced by the defendant’s previous request for this amount and the claimant’s failure to comply with a court direction. The court considered this amount reasonable and proportionate, given the circumstances of the case and the need to ensure that costs were not unreasonably incurred.

The court’s approach was principled, taking into account all relevant circumstances, including the conduct of the parties and the proportionality of costs to the issues in dispute. The decision reflects a balance between ensuring that the successful party is adequately compensated for their costs and preventing unnecessary or excessive costs burdens on the unsuccessful party.

Danish Judgment Registration Order Upheld but Rendered Worthless on Appeal

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Background

The case of Olsen v. Finansiel Stabilitet A/S involved an appeal to the High Court of Justice, King’s Bench Division, concerning the registration of a Danish judgment for enforcement in England and Wales. The appellants, Birgitte Wagner Olsen and Karsten Olsen, challenged an order registering the Danish judgment and a supplemental order for costs assessed at £12,500. The appeal was heard on 10 and 11 December 2024, with Mr Justice Kerr delivering the judgment on 28 January 2025.

Costs Issues Before the Court

The primary costs issues before the court were threefold: first, whether the costs order made below should be altered; second, the costs of the appeal; and third, the form of the court’s order on the appeal. The parties disagreed on the impact of the Judgments Regulation on the recoverability of costs related to the registration of the Danish judgment, given that the registration order’s effect had expired.

The Parties’ Positions

The appellants argued that the costs order should be set aside because the limitation period had expired, rendering the judgment debt unenforceable. In contrast, the respondent contended that the costs order should remain intact, as the Danish judgment was validly registered and the costs of registration remained recoverable despite the expiry of the limitation period. Both parties claimed to be the successful party in the appeal and sought costs against the other.

The Court’s Decision

Mr Justice Kerr decided that the respondent’s submission on the costs order was preferable, maintaining that the costs of registering the Danish judgment were recoverable. However, he concluded that the appellants were, in substance, the successful parties in the appeal, as they secured an order rendering the registration worthless to the respondent. The court made no order for costs of the appeal, citing the appellants’ misconduct, including presenting a non-existent authority and filing unnecessarily prolix documents. The Master’s order for £12,500 in costs below was upheld.

Court of Appeal Clarifies Recovery of Success Fees and QOCS in Hybrid Personal Injury and Media Claims

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Background

The case of Birley v Heritage Independent Living Ltd involved an appeal to the Court of Appeal concerning costs issues related to a claim for damages due to alleged breaches of the General Data Protection Regulations (GDPR) and misuse of private information. The claimants, Nathaniel Birley and Virginer Bell, acting as personal representatives of the estate of Ms Rosa Taylor, brought the action against Heritage Independent Living Ltd. The case primarily focused on whether the cost provisions allowing recovery of a success fee and after-the-event (ATE) insurance premium could apply alongside qualified one-way costs shifting (QOCS) in personal injury claims.

Costs Issues Before the Court

The main costs issue before the court was whether QOCS could apply simultaneously with the recovery of a success fee and ATE insurance premium in a claim that included both personal injury and media-related causes of action. Additionally, there were questions about the court’s power to award costs in the context of late service of the claim form and whether the claimants’ conduct constituted an abuse of process, potentially justifying the disapplication of QOCS.

The Parties’ Positions

The appellant, Heritage Independent Living Ltd, argued that the claimants had “cherry-picked” between different pre-action protocols to gain a favourable position on costs. They contended that the claimants’ conduct, including the use of anonymised pre-action correspondence and failure to notify Heritage of the claim’s issue, constituted an abuse of process. The claimants, on the other hand, maintained that their actions did not amount to an abuse of process and that QOCS should apply as the claim included a personal injury component.

The Court’s Decision

The Court of Appeal held that QOCS could indeed apply alongside the potential recovery of a success fee and ATE insurance premium in cases where both personal injury and media-related claims were involved. The court found that the claimants’ conduct, while flawed, did not constitute an abuse of process sufficient to disapply QOCS. The appeal was dismissed, and the costs of the appeal were awarded to the claimants, as they were deemed the overall winners. The court also addressed procedural issues related to the dissolution of Heritage Independent Living Ltd and the involvement of its insurers in the appeal.

Ainsworth Applied | Preliminary Points Struck Out for Lack of Particularity

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Background

The case of St Francis Group 1 Limited and others versus John Thomas Kelly and others involved a complex dispute arising from a management buy-out (MBO) transaction. The Kelly family sold two of their companies to a group of purchasers represented by the Claimants in 2017. As part of the transaction, the first Defendant, John Thomas Kelly, executed a Claim Waiver, which included an indemnity against all losses incurred by the Claimants in connection with any claims. In 2020, despite the Claim Waiver, the Defendants initiated proceedings against Mr Baker and Mr Braid, alleging fraud. The claim was unsuccessful, and the court found in favour of the Claimants, including a successful counterclaim for indemnity under the Claim Waiver.

Costs Issues Before the Court

The primary costs issues before the court involved the detailed assessment of costs payable by the first Defendant to the Claimants under the terms of the Claim Waiver. Key issues included whether the Claimants were entitled to recover in-house legal costs, the reasonableness of the costs incurred, and the scope of the indemnity provided by the Claim Waiver. Additionally, there were disputes over the particularisation of the first Defendant’s Points of Dispute, which were deemed inadequate by the court.

The Parties’ Positions

The Claimants argued that they were entitled to an indemnity for all reasonable and properly incurred costs related to the fraud claim, including both external legal costs and in-house legal costs. They contended that the first Defendant’s Points of Dispute were inadequately particularised and should be dismissed. The first Defendant argued that the Claimants’ costs were excessive and not within the scope of the indemnity, and he sought significant reductions. He also claimed that the Claimants had not managed the disclosure exercise cost-effectively.

The Court’s Decision

The court determined that the Claimants were entitled to recover costs under the indemnity provided by the Claim Waiver, including in-house legal costs, as long as they were reasonable in amount. The court found that the first Defendant’s Points of Dispute were largely inadequately particularised and struck out several preliminary points. The court allowed some specific challenges to proceed, requiring the first Defendant to rebut the presumption that each item of cost was reasonable. The court also noted that the first Defendant’s approach was calculated to increase costs and difficulty for the Claimants.

The Court’s Approach to Particularity

Judge Leonard’s decision reinforces that Points of Dispute under CPR 44.5 cannot rely on generic, “cut-and-paste” objections. The first Defendant’s approach of inserting identical objections against every timed item in the £468,687 bill was found to be meaningless and contrary to Ainsworth principles.

The court struck out preliminary points that failed to identify specific items being challenged. This included complaints about “excessive time” and “duplication” that gave no details about which entries were disputed or why.

Practical Implications for Costs Practitioners

The judgment clarifies that paying parties must rebut the CPR 44.5 presumption that costs are reasonably incurred and reasonable in amount. Broad assertions about costs being “unusually high” without item-specific objections will not succeed.

The decision emphasises that detailed assessment hearings must be managed fairly and proportionately. Courts will not accept Points of Dispute that force parties to identify objections during the hearing itself.

Key Takeaways

For costs draftsmen preparing Points of Dispute under CPR 44.5, the St Francis v Kelly judgment confirms that specificity is essential. Each objection must clearly identify the disputed item and provide concise grounds for challenge, ensuring the receiving party can adequately respond.

Points Of Dispute In Solicitor And Client Assessments | The Court Of Appeal Speaks

Court Assesses Solicitor Success Fee at 15% for Protected Party Claim

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Background

The case of AKS v National Farmers Union Mutual Insurance Society Limited involved a claim for damages following a road traffic accident in 2017. The claimant, AKS, was a protected party represented by Seth Law Limited. The proceedings concluded with a damages settlement of £3.7 million in November 2022. The settlement included an order for the defendant to pay the claimant’s costs, with the costs payable by the claimant to Seth Law subject to detailed assessment under the Civil Procedure Rules (CPR) 46.4(5) and CPR 21.12(1A) (now CPR 21.12(2)).

Costs Issues Before the Court

The primary costs issue before the court was the assessment of Seth Law’s success fee, which was claimed at 25% of the claimant’s award. The court needed to determine whether this success fee was reasonable and properly assessed under CPR 46.4. Additionally, there was a procedural issue regarding the court’s approval for any payment from the claimant’s damages to Seth Law.

The Parties’ Positions

Seth Law initially sought an assessment under CPR 47 and an award of a success fee of 25% of the claimant’s award. However, they later clarified that their application was for assessment between solicitor and client under CPR 46.4. The claimant’s deputy, Mrs Williams, had arranged a payment of £73,750 to Seth Law, believing it was within her discretion. The court, however, required a formal assessment to ensure compliance with legal procedures.

The Court’s Decision

The court determined that Seth Law’s success fee of £73,750 was excessive and not contractually justified. The court assessed the success fee at 15% of the basic charges, amounting to £16,502.64. Consequently, Seth Law was ordered to repay the overpayment of £57,247.36 to the claimant. The court’s decision was based on the lack of informed consent from the claimant or her litigation friend for the higher success fee and the absence of a proper risk assessment by Seth Law. The repayment, however, remains uncertain due to Seth Law’s compulsory liquidation.

Court Rejects DBA Argument and Clarifies CFA Information Requirements

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Background

The case of Perrett v Wolferstans LLP involved a dispute over the nature of the retainer agreement between Mr. Ryan Perrett, the claimant, and Wolferstans LLP, the defendant. Mr. Perrett had instructed Wolferstans LLP following an accident at work in December 2018. The claimant sought legal representation under a “no-win, no-fee” agreement, which he believed would cover all his legal costs if his claim was successful. The dispute centered on whether the agreement was a Conditional Fee Agreement (CFA) or a Damages-Based Agreement (DBA), and the implications for costs recovery.

Costs Issues Before the Court

The key costs issues before the court included the nature of the retainer agreement (CFA vs. DBA), the method of assessing non-contentious costs, and whether the defendant had adequately informed the claimant about potential costs and funding options. The claimant argued that the agreement should be considered a DBA, which would have been more beneficial to him, while the defendant maintained it was a CFA. Additionally, there were concerns about whether the defendant had complied with the Solicitors Regulation Authority (SRA) Code of Conduct regarding client information and costs transparency.

The Parties’ Positions

Mr. Perrett’s legal team argued that the agreement should be viewed as a DBA, which would limit the solicitors’ share of damages to 25% inclusive of VAT, without additional base fees. They also contended that the defendant failed to provide adequate information about costs and funding options, breaching the SRA Code of Conduct. Wolferstans LLP countered that the agreement was clearly a CFA, which did not require them to offer alternative funding options like a DBA. They maintained that they had provided sufficient information to the claimant regarding the terms of the CFA.

The Court’s Decision

The court determined that the agreement was a CFA rather than a DBA, as it did not comply with the legislative requirements for a DBA. Costs Judge Rowley found that the defendant’s failure to provide detailed information about potential costs did not significantly impact the claimant’s decision-making, as the overall cap on costs was clearly communicated. The court concluded that while the defendant’s provision of information fell short of the “best possible” standard, it did not invalidate the agreement or justify a reduction in costs. The assessment of costs would proceed under the Solicitors (Non-Contentious Business) Remuneration Order 2009, focusing on whether the costs were fair and reasonable.

Medical Reporting Agencies | Burden Upon The Claimant To Justify Expert Fees With Or Without A Breakdown

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Background

The case of JXX v Archibald involved a road traffic accident on 5 May 2018, resulting in severe injuries to the claimant, who became a protected party. The claim was settled on 28 March 2023, with terms approved by the Court on 16 May 2023. Detailed assessment proceedings commenced on 20 September 2023, with the claimant’s bill of costs totalling £901,026.98. The dispute focused on expert evidence fees sourced via Medical and Professional Services Limited (MAPS), a medical reporting organisation (MRO), which were challenged by the defendant due to a lack of transparency in the billing process.

Costs Issues Before the Court

The primary costs issue before the court was whether the claimant’s bill of costs was compliant with the Civil Procedure Rules, specifically regarding the inclusion of expert fees procured through MAPS. The defendant sought a declaration that these fees were non-compliant and requested that detailed assessment proceedings be stayed until the claimant provided detailed breakdowns of the costs. The key issue was the reasonableness and proportionality of the fees charged by MAPS, as compared to what solicitors would have charged for similar work.

The Parties’ Positions

The claimant argued that the use of MAPS was efficient and cost-effective, reducing solicitors’ costs while providing valuable services. They maintained that the fees claimed were reasonable and proportionate, citing the precedent set by cases such as Stringer v Copley. The defendant, however, disputed these fees, highlighting a significant disparity in costs when compared to direct instructions and arguing that a breakdown of MAPS’ charges was necessary to assess their reasonableness.

The Court’s Decision

The court determined that the claimant must decide whether to provide a breakdown of the fees charged by MAPS and the experts or to proceed with the assessment based solely on the expert evidence. If the claimant chose the former, the fees would be assessed considering both the expert’s evidence and MAPS’ involvement. If not, the assessment would be based on the hypothetical scenario of no MAPS involvement, focusing solely on the expert’s evidence. The court emphasised that the burden of providing evidence to justify the claimed fees rested with the claimant, and failure to do so could result in reduced allowances during the assessment.

TOPALSSON GmbH v CMS CAMERON MCKENNA NABARRO OLSWANG LLP [2025] EWHC 118 (SCCO)

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Background

The case of Topalsson GmbH v CMS Cameron McKenna Nabarro Olswang LLP involved a dispute over legal costs. Topalsson, a German software company, engaged CMS Cameron McKenna Nabarro Olswang LLP for legal services in 2019. The services included drafting a contract and later litigating against a customer who terminated the contract. The litigation resulted in a judgment against Topalsson for €5 million. The dispute before the Senior Courts Costs Office concerned the status and assessment of 27 bills rendered by the Defendant between August 2019 and May 2022, totaling £2,151,614.41. The Claimant sought a detailed assessment of these bills under Section 70 of the Solicitors Act 1974.

Costs Issues Before the Court

The primary costs issues before the court were:
1. **Status of the Bills**: Whether the bills were interim statute bills or a series of on-account bills forming a single final statute bill.
2. **Application of Section 70 Solicitors Act 1974**: Under which subsection the bills fell and whether special circumstances existed for detailed assessment.
3. **Scope of Assessment**: Whether the court could order assessment of profit costs and specific disbursements, excluding counsel’s fees and court fees.

The Parties’ Positions

The Claimant argued that the bills were not interim statute bills but rather a series of on-account bills that together formed a single final statute bill. They sought detailed assessment of all bills, focusing on profit costs and specific disbursements. The Defendant contended that the bills were interim statute bills, with only the last bill being a final bill. They argued that the Claimant needed to show special circumstances for the assessment of bills delivered more than a year prior to the proceedings.

The Court’s Decision

The court determined that the Defendant was not entitled to render interim statute bills, as the retainers did not clearly indicate that the monthly bills were final for the period they covered. Therefore, the last bill dated 30th May 2022 was considered the final statute bill for all work done. The court found that the bill fell under Section 70(2) of the Solicitors Act 1974, as it was delivered within a year of the proceedings. The court also held that it had the power to order assessment of profit costs and specific disbursements, as requested by the Claimant. The issue of whether terms should be imposed for the assessment and whether a payment on account should be made was left for further submissions.

Where Defendants Assert “Local Would Be Cheaper” | The Evidential Burden Falls On The Paying Party

The Senior Courts Costs Office’s decision in Briley & Ors v Leicester Partnership NHS Trust & Ors [2023] EWHC 1470 (SCCO) establishes that defendants asserting “local would be cheaper” bear the evidential burden to prove local capacity and exp[ertise existed at lower rates—mere assertion is insufficient.

Background

The case concerned a claim brought by the family of Amanda Briley, who died on 28 December 2016 while a patient at the Bradgate Mental Health Unit [§2]. Costs Judge James handed down judgment on 9 June 2023, following a detailed assessment hearing that took place on 21 September 2020 [§1].

Amanda had a history of mental health difficulties, including Asperger’s Syndrome and emotional unstable personality disorder, and had been under the care of mental health services since 2013 [§2]. Her death followed a ligature incident after she was placed on an inappropriately low level of observations upon returning from Christmas leave [§17].

The claimants, Amanda’s father (on behalf of her estate), mother, and brother, brought proceedings against three NHS defendants: Leicester Partnership NHS Trust, University Hospitals Leicester NHS Trust, and East Leicestershire and Rutland Clinical Commissioning Group [§21-22]. The claims were advanced under the Law Reform (Miscellaneous Provisions) Act 1934, the Fatal Accidents Act 1976, common law negligence, the Human Rights Act 1998 (alleging breaches of Articles 2, 3, 8, and 14 of the European Convention on Human Rights) and the Equality Act 2010 (alleging disability discrimination) [§21, 104].

Prior to the civil claim, an inquest was initiated, and the claimants were granted Legal Help/Exceptional Funding for the inquest proceedings, alongside conditional fee agreements for the litigation [§37-38]. Two pre-inquest review hearings took place on 11 December 2017 and 30 May 2018 [§26, 30], during which issues such as the scope of the inquest, jury summoning, Article 2 compliance, and disclosure were addressed [§26, 94].

The defendants made a series of Part 36 offers, starting at £32,500 in July 2018 and increasing to £65,000 in October 2018 [§31, 34]. The claimants accepted the £65,000 offer on 16 November 2018, shortly before the full inquest was due to commence [§35]. The settlement included full admissions of liability from the first and second defendants, a letter of apology, and a commitment to involve the family in learning lessons from Amanda’s death [§35]. The costs of the pre-inquest reviews and the solicitors’ work formed the subject of the subsequent costs dispute, leading to a detailed assessment before Costs Judge James.

Costs Issues Before the Court

The court was required to determine two principal costs issues arising from the detailed assessment. A third issue concerning proportionality under CPR 44.3(2) (Point 5) was identified but expressly deferred pending the determination of Points 4 and 6, as proportionality required consideration of the total recoverable costs first [§40].

First, whether the hourly rates claimed by the claimants’ solicitors, Bhatt Murphy, were reasonable and proportionate (Point 4) [§39-48]. The claimants sought rates of £350 per hour for Grade A fee earner Ms Phillips, £140 per hour for Grade D fee earners, and £150 per hour for a costs consultant, against the defendants’ contention that lower rates based on National Band 2 guideline hourly rates should apply [§39].

Second, whether the costs incurred in attending the pre-inquest review hearings, totalling £14,770.67, were recoverable as costs incidental to the civil claim (Point 6) [§49]. The defendants argued that these costs were not of use and service to the proceedings [§52-64], while the claimants maintained they were essential for obtaining disclosure and advancing the civil claim [§77-109].

The Parties’ Positions

The defendants challenged the hourly rates on the basis that the claimants, residing in Leicester, should have instructed a local firm charging lower rates [§41-43]. They cited Wraith v Sheffield Forgemasters and A v Chief Constable of South Yorkshire, arguing that the involvement of counsel reduced the need for enhanced solicitor rates [§42, 46]. They contended that the guideline hourly rates for National Band 2 should apply, with any enhancement limited due to the case’s settlement value of £65,000 [§43, 47].

The defendants also disputed the recoverability of pre-inquest costs, relying on Roach v The Home Office and Lynch, and invoking the test from In re Gibson’s Settlement Trusts [§55] that such costs must be: (a) of use and service in the claim, (b) relevant to the issues, and (c) attributable to the defendants’ conduct. They asserted that the pre-inquest reviews involved routine procedural matters and that early partial admissions negated the necessity of incurring these costs [§52, 56-57].

The claimants defended the instruction of Bhatt Murphy as objectively reasonable, given the firm’s specialisation in deaths in state care and its recommendation by INQUEST [§66-69]. They referenced Solutia UK Ltd v Griffiths and Kai Surrey v Barnet and Chase Farm Hospitals NHS Trust [§66, 70], emphasising that the choice did not need to be the cheapest but reasonable in the circumstances.

On hourly rates, the claimants relied on Choudhury v Kingston Hospitals NHS Trust [§76] in arguing that outdated guideline rates should not constrain recovery in complex litigation, and invoked the factors under CPR 44.3 [§71]. Regarding pre-inquest costs, the claimants relied on Roach, Wilton v The Youth Justice Board, and Fullick v Commissioner of Police for the Metropolis [§77-80], contending that the reviews were crucial for securing disclosure, clarifying causation, and addressing systemic failures, which directly assisted in achieving the settlement with full admissions [§98-101]. They highlighted the defendants’ robust resistance and the volume of documentation involved as justifying their participation [§100, 102-103].

The Court’s Decision

On Point 4 (hourly rates), the court found that the claimants’ choice of Bhatt Murphy was objectively reasonable [§112]. The firm’s expertise in human rights and deaths in custody, coupled with the recommendation from INQUEST, met the reasonableness test under Wraith [§112-114]. The court noted the absence of evidence from the defendants that a local firm could have handled the complex, multi-faceted claim at lower rates [§115, 118].

Applying the factors in CPR 44.3, the court considered the case’s complexity, the specialised knowledge required, the importance to the parties, and the defendants’ conduct in robustly defending the claim [§119-125]. The court was particularly influenced by the defendants’ deployment of multiple legal teams at the pre-inquest reviews, with the claimants’ legal team being outnumbered by a factor of more than five to one [§100, 119].

The court applied the approach in PLK and Others (Costs) [§127], a Court of Protection case concerning general management matters, which indicated that rates within approximately 120% of the 2010 guideline hourly rates could be prima facie reasonable for work from 1 January 2018 onwards. The court found that the Grade A rate of £350 per hour was above this PLK-adjusted benchmark but justified due to the case’s complexity, specialist nature, and the defendants’ robust litigation conduct [§128].

A PLK uplift on £267/hour (top end London 3 Grade A rate) would bring it to just over £320/hour without any enhancement whatsoever [§128]. Given the factors enumerated above, the court was prepared to enhance the hourly rate above that amount. The claimed rate of £350 per hour for Ms Phillips was upheld as reasonable [§128].

The rates for Grade D fee earners (£140 per hour) were also allowed. Applying PLK alone would result in an hourly rate of £145 for Grade D London 3, and the court upheld the £140/hour claimed even though for Grade D work it would not have allowed any enhancement [§128]. The costs consultant rate of £150 per hour was also upheld, as this was specialised work meriting more than the guideline hourly rate for Grade D London 3 [§128].

On Point 6 (pre-inquest costs), the court determined that the costs of attending the pre-inquest reviews were recoverable as they were of use and service to the civil claim [§138]. Applying the principles from Gibson and Fullick [§129-134], the court found that the reviews were instrumental in obtaining disclosure, clarifying the scope of liability, and addressing issues relevant to the Human Rights Act and Equality Act claims [§136-137].

The court emphasised that the defendants’ early admissions were limited in scope (covering only the hours immediately before Amanda’s death) and did not extend to all three defendants until much later [§107, 120]. The pre-inquest efforts were necessary to secure full admissions covering the entire period of inadequate care, a meaningful apology, and commitments to systemic learning [§101-103, 120].

The attendance of one fee earner and junior counsel was deemed proportionate, especially given the multiple legal representatives for the defendants [§100, 119]. The court rejected the defendants’ characterisation of the costs as “eye-watering”, noting that in the context of the claimants’ wish to establish the full extent of systemic failures that led to Amanda’s death, the costs were neither disproportionate nor unreasonable [§141-142].

The court concluded that the costs were reasonably incurred and proportionate in the context of the claim’s non-pecuniary objectives (establishing truth, securing apologies, and ensuring lessons were learned) and the overall settlement achieved [§131-132, 138-140].

Recovering inquest costs where liability admitted

Recoverability of inquest costs in a civil claim

Recoverability of inquest costs and proportionality

Inquest costs when is an admission not an admission

Inquests London solicitors hourly rates and proportionality

The applicability of the guideline hourly rates on a detailed assessment

Provision For Detailed Assessment In Consent Order Trumps Fixed Costs Regime For Ex-Protocol Claims

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Background

In the case of Doyle v M&D Foundations & Building Services Ltd [2022] EWCA Civ 927, the appellant (M&D Foundations & Building Services Limited) was ordered to pay the respondent (Allan John Doyle) damages of £5,000 following an injury the respondent sustained while employed by the appellant. The order, dated 18 July 2018, also mandated that the appellant pay the respondent’s costs, specified as “such costs to be the subject of detailed assessment if not agreed.”

The respondent subsequently lodged a bill of costs for detailed assessment on the standard basis. The appellant contested this, arguing instead that the claim was subject to the fixed recoverable costs regime as outlined in section IIIA of CPR Part 45. This contention was based on the assertion that the claim fell within the category of ex-Protocol low-value personal injury claims, thus entitling the appellant to fixed recoverable costs amount with a determination of only disputed amounts of such costs and disbursements through the fixed costs mechanism.

District Judge Rogers initially rejected the appellant’s contention, concluding that the fixed costs regime did not apply since the parties had contracted out of it, as reflected by the express terms of the consent order. On 13 May 2019, he assessed the respondent’s bill of costs at £14,467.44. The appellant’s appeal against this decision was dismissed by Her Honour Judge Ingram on 10 February 2021. Following this, the appellant brought a second appeal which was granted permission by Stuart-Smith LJ on the grounds of significant legal issues relating to the interpretation of the consent order and its implications for cost recovery under the CPR.

The procedural history also included details of the initial injury sustained by the respondent on 12 May 2014 at a construction site. The injury, while relevant to the procedural context, was not a prominent aspect of the costs issue. The respondent commenced a claim under the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims on 25 November 2016. However, after the appellant failed to issue a CNF response, the Protocol ceased to apply, and proceedings were initiated in court.

The case was allocated to the fast track with a trial date scheduled on 19 July 2018. However, before the trial, the appellant extended a Part 36 offer to the respondent, which the respondent did not explicitly accept, instead proposing a consent order for settlement. The settlement included a provision for costs to be “subject to detailed assessment if not agreed,” leading to the current dispute over whether the costs were to be assessed on the standard basis or as fixed costs under the fixed recoverable costs regime.

Costs Issues Before the Court

The costs issues presented required the Court to interpret the consent order’s provision that specified the costs were to be “subject to detailed assessment if not agreed.” Specifically, the Court needed to decide if this wording indicated that the costs should be assessed on the standard basis, or whether, considering the nature of the claim (an ex-Protocol low-value personal injury claim), the fixed recoverable costs regime should apply instead.

The appellant asserted that the fixed costs regime under CPR Part 45 Section IIIA should govern the case because the claim was initiated as an ex-Protocol claim. They argued that the reference to detailed assessment in the consent order implied the process of determining the amount of fixed costs and disbursements. Conversely, the respondent contended that the consent order’s language signified an intention to assess costs on the standard basis, completely outside the bounds of the fixed costs regime. The Court was thus tasked with clarifying whether the consent order’s stipulations contracted out of the fixed costs regime and necessitated a detailed assessment of costs on the standard basis.

The Parties’ Positions

The appellant argued that the term “subject to detailed assessment” could be interpreted to align with the assessment of fixed recoverable costs, particularly for disbursements, as suggested by cases such as Solomon v Cromwell Group plc. They contended that the fixed costs regime is intended to provide predictability and proportionality in costs, and the language in the consent order did not explicitly evince an intent to depart from this regime.

The respondent maintained that the phrase “subject to detailed assessment” is a term of art within the Civil Procedure Rules and unequivocally denotes an assessment on the standard basis unless otherwise specified. The respondent’s interpretation hinged on the rule’s provisions indicating that if an order does not specify the basis of the cost assessment, it defaults to a standard basis assessment. Therefore, they argued that the consent order, by specifying a detailed assessment, inevitably called for an assessment on the standard basis.

Both parties referenced pertinent authorities and principles of contractual interpretation to support their respective contentions. The appellant’s submissions leaned on interpreting the context of ex-Protocol claims and previous judgments that inferred the meaning of “assessment” within the landscape of fixed recoverable costs. The respondent, however, argued for a strict interpretation of the CPR rules and legal definitions, emphasising the consent order’s wording and procedural norms for detailed assessment.

The Court’s Decision

The Court of Appeal, in its analysis, supported the respondent’s interpretation, concluding that the natural and ordinary meaning of “subject to detailed assessment” indeed referred to an assessment on the standard basis. The Court underscored that according to rule 44.3(4)(a) of the CPR, where an order for costs or the method of assessment does not specify otherwise, it defaults to the standard basis.

Furthermore, the Court clarified that while the fixed costs regime does include forms of assessment, particularly regarding the determination of disbursements, this does not equate to a detailed assessment as traditionally understood within the rules for standard basis costs assessment. Citing established principles and prior authorities, the Court reiterated the clear demarcation between fixed costs and assessed costs, emphasising that the rules distinctly handle each to ensure clarity and procedural conformity.

The Court found no exceptional circumstances or compelling evidence to suggest that the parties intended to obfuscate the standard meaning of detailed assessment, nor to contract out of the fixed costs regime under uncertain terms. The reference to detailed assessment in the consent order, absent explicit contrary stipulations, mandated an assessment on the standard basis. Consequently, the appeal was dismissed, thereby affirming lower court rulings and clarifying the application of costs assessment terminology within the procedural framework of the CPR.