This was an appeal against the decision of Master McCloud not to award the claimant a 10% ‘additional amount’ under CPR 36.17(4) on grounds that it would be disproportionate and unjust to do so where the claimant had beaten its own offer by just £7,000 on a bill assessed at £431,813.05.
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Entries by Toby Moreton
Disagreeing with Judge Robert Owen QC in Potter v Sally Montague (Nottingham CC), HHJ Nicol found that a Part 36 Offer made in detailed assessment proceedings and expressed to be exclusive of interest was a valid Part 36 Offer.
This was a decision regarding alleged mis-certification of a costs budget. The case bore similarities to the facts in Tucker v Griffiths and Hampshire University Hospitals NHS Trust, another decision of Master Rowley. Both parties were critical of Master Rowley’s decision in Tucker, the defendant complaining that it was too lenient and the claimant contending that it had been too harsh as a finding of misconduct under CPR 44.11 had not been warranted on the facts.
This was another in a line of cases which confirms that a Part 36 Offer cannot contain any provision as to costs. Disagreeing with Hildyard J in Proctor & Gamble Co v Svenska Celluslosa HHJ Paul Matthewsheld that he was bound by the Court of Appeal decisions in Mitchell v James and French v Groupama, neither of which had been cited to Hildyard J, that no term as to costs should be included in a Part 36 offer, even if to the benefit of the offeror.
The was an application by the defendant in a business dispute to upwardly revise his costs budget under PD3E s7.6 by reason of various ‘significant developments’ in the litigation including additional costs involved in answering a request for further information and an increase in the number of documents that had been required to review. The application was unsuccessful primarily due to the fact that the increased costs had, it was held, arisen due to the defendant’s own actions in failing to properly clarify his case, despite two court orders to do so. Furthermore, the extent to which his legal team were required to review disclosure documentation was something which should reasonably have been anticipated.
This was the latest in a series of unsuccessful attempts to escape fixed costs as governed by Section IIIA of CPR 45 by reason of exceptional circumstances under CPR 45.29J. The claimant’s solicitors argued that it had been the claimant’s intention from the outset to pursue the claim outside the Portal. They had initially sent the defendant a letter of claim and only later added the claim to the Portal at the defendant’s insistence in order to progress matters, saying that “the Defendant refused to consider the matter unless a Portal submission was made”.
Applying the principles laid down in Surrey v Barnet And Chase Farm Hospitals NHS Trust  EWCA Civ 451 Mr Justice Jay dismissed this appeal against a Costs Judge’s disallowance of additional liabilities including a success fee of over £300,000 following a switch from legal aid funding to CFA in 2012.
In April 2013 the “old” proportionality test in the then CPR 44.4(2) was replaced by the “new” proportionality test in CPR 44.3(5). The essential difference being that necessity no longer trumps proportionality. There remain a few cases still being dealt with under the “old” rule. This was one of them. It was an appeal against decisions made by the Senior Costs Judge, Master Gordon-Saker in the course of a detailed assessment, including that the base fees, viewed globally, were not disproportionate.
This was an appeal from a decision of Master Gordon-Saker made in the course of detailed assessment proceedings brought under s70 Solicitors Act 1974. The Master had summarily dismissed the claimant’s points of dispute on work done on documents, on grounds that they did not further the overriding objective. Specifically, the points of dispute were not, “to the point”. They did not summarise all of the particular objections to the specific points which the claimant wished to advance at the hearing so that the court and the defendant knew or knew sufficiently the case the defendant had to meet.
Extract from the SCCO Guide