The Court was tasked with determining costs following a hard fought piece of commercial litigation in which the claimant was awarded US$5,388,312.08 of a US$63.5 million claim. Mrs Justice O’Farrell considered the various authorities and relevant principles to be applied when determining whether to make an issues based or proportional costs order before determining that the defendant should pay 85% of the claimant’s costs.
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On a cross appeal arising out of this failed RTA claim Mr Justice Julian Knowles overturned the trial judge’s finding that the claimant had not been fundamentally dishonest in his claim against the defendant. Thus, it followed, QOCS was disapplied and the defendant became entitled to enforce the order for costs in its favour to its full extent.
On this appeal from Costs Officer Martin in the Senior Courts Costs Office, the Defendant contended that the Claimant had no entitlement to payment of Counsel’s fee for an advice.
The Rules regarding the review of a Costs Officer’s decision in the JCPC differ slightly from the Rules of the Supreme Court but they are set out separately below for ease of reference.
The fee on filing a Bill of Costs is 2.5% of the amount claimed (including VAT).
The fee payable on assessment of the Bill is 2.5% of the amount allowed (including the costs of assessment and VAT).
Where a Bill of Costs is agreed fewer than 21 days prior to assessment, the assessment fee is payable on the amount agreed between the parties.
Where a Paying Party does not file Points of Dispute, a Provisional Assessment will be conducted.
In the Supreme Court a Provisional Assessment will also be carried out where one of the parties requests such an assessment or where the costs claimed are £75,000 or less. A Provisional Assessment will also be carried out in the Supreme Court in cases involving public funding, except where a Legal Aid provider requests a hearing or where the size or complexity of the Bill requires a Detailed Assessment hearing.
The claim for costs must be in Form 5 specified in Section 2 of the respective Practice Directions of the Supreme Court and the JCPC. It must be filed within three months of the date on which the relevant costs order was made and must, at the same time, be served on the other parties. There is provision in the Supreme Court (PD 13 para 8) and JCPC (PD 8 para 6) to seek an extension or to file out of time, but time limits in the Supreme Court and JCPC are enforced more strictly than in the SCCO and (unlike in the SCCO) there is no onus on the Paying Party to take the issue.
Allowing an appeal from a decision of HHJ Baucher in the Central London County Court Mrs Justice McGowan found than an offer to accept “nil pounds with an admission of liability plus reasonable costs, to be assessed if not agreed” made by a claimant in the course of an action against the police for false imprisonment and assault was a “significant concession” and therefore a genuine Part 36 offer.
Assessments of costs in the Supreme Court are conducted by the Costs Officers appointed by the President. One must be a Costs Judge; the second must be the Registrar of the Supreme Court. The Costs Officers normally sit together as a Court of two or three. The current panel of Costs Judges sitting in the Supreme Court is the Senior Costs Judge (Chief Taxing Master) Gordon-Saker, Master Leonard and Master James.
Various statutes give the SCCO jurisdiction to assess costs in litigation including…