Entries by Toby Moreton

Another Failure To Mediate And An Award Of Indemnity Costs

Having beaten his own offer at trial the Claimant was awarded indemnity costs under CPR 36.17(4)(b) from 21 days after the date on which it was made.

The Claimant also claimed indemnity costs on a broader basis and for a longer period by reason of the Defendant’s failure to engage in settlement discussions. or contemplate any form of ADR.

Costs Capping Orders And The Court’s Discretion As To Costs In Public Interest Judicial Review Proceedings

Prior to commencement of these public interest judicial review proceedings the parties had agreed that they recoverable costs on each side would be limited to the sum of £3,000. The proceedings were ultimately dismissed and the Appellant was ordered to pay 67% of the SSHD’s capped costs i.e. £2,000.

The Appellant appealed the substantive decision, unsuccessfully, to the Court of Appeal.

The SSHD cross appealed the order for costs on grounds that the judge erred in law by applying the reduction of 33% to the capped rather than the “much higher” actual costs of the SSHD, when calculating the amount of costs to be paid.

CPR 3.18(b) | Is Underspend Good Reason To Depart?

In March last year we reported on the decision in Salmon v Barts Health NHS Trust [2019] wherein HHJ Dight held that if the sum claimed on assessment in any given phase of a bill is lower than the budgeted figure for that phase, because the anticipated work had not been completed and/or by virtue of the indemnity principle, this is, in and of itself, capable of being a ‘good reason to depart’ under CPR 3.18(b) thus opening that phase to a traditional line by line assessment.

Aarhus Convention Claims, Interested Parties And The Cost Of Legal Research

In this short judgment following a determination by the court that the Aarhus Convention applied to the claim Mr Justice Freedman went on to determine costs as between the Claimant and Interested Party. The latter had actively sought to oppose the Claimant having Aarhus costs protection whilst the Defendant had maintained a neutral stance.

The decision also addressed the oft-debated issue of costs related to legal research.

Protective Costs Orders | The Principles

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”.

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

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.

QOCS: Setting Off Costs Against Costs

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.

Speculative Claims, Indemnity Costs And The Effect Of An Approved Costs Budget

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.