Entries by Toby Moreton

Does A Calderbank Offer Expire At The Door Of The Court?

In the course of costs negotiations following settlement of liability in this clinical negligence claim the Defendant made a number of Calderbank offers, the last of which being for the sum of £440,000 on condition that if not accepted within a reasonable time, the Claimant would be responsible for the Defendant’s costs.

CPR 3.18(b) | Underspend Does Not Constitute Good Reason To Depart From An Approved Budget

Master Brown (costs judge) has joined the debate about the effect of an underspend in a costs budgeted case.

“I agree with [DJ Lumb] that if an underspend were to be a good reason for departing from a budget it would be liable to substantially undermine the effectiveness of cost budgeting. As the Judge effectively observed, solicitors who had acted efficiently and kept costs within budget would find their costs subject to , whereas less efficient solicitors who exceeded the budget would, absent any other “good reason”, receive the budgeted sum and avoid

“even if ‘underspend’ were a “good reason” for the purpose of CPR 3.18 it does not follow that there should be a deduction from the sums claimed. Plainly, the fact that a party has spent less than its budget for a phase does not mean there is therefore in fact a good or appropriate reason for any further reduction and I was not satisfied that there was any additional “good reason” for any such reduction.”

CPR 3.14 | Late Costs Budget | Relief From Sanctions Denied

Relief from sanctions was refused to the second Defendant (“D2”) in this case following the late filing of its costs budget.

Having initially failed to file its budget prior to the CCMC (which was adjourned) D2 then failed to file it less than 21 days prior to the adjourned hearing.

To compound matters, D2 then left it until the day before the adjourned CCMC to file and serve its application for relief.

Finding that there had been “an abysmal approach on D2’s part to conducting this litigation efficiently” HHJ Simon Barker QC refused relief from sanctions result in D2 being treated as having filed a budget comprising only the applicable court fees.

Pre Judgment Interest On Costs Under CPR 44.2(6)(g) | A General Rule?

Master Brown (costs judge) declined to award pre judgment interest on the cost of a loan which the Claimant had taken out to fund the expense of an expert medical report in this clinical negligence case.

The Master rejected the notion that the Court in Jeffrey Jones and others v Secretary of State for Energy and Climate Change and others [2014] EWCA Civ 363 had intended to set a general rule that an award of interest on costs should be made in respect of the period before judgment and respectfully agreed with Dingemans J in Schumann and Anor v Veale Wasbrough [2013] EWHC 4070 QB that not only was such an award not the general rule in ordinary litigation and but that it was undesirable that there should be such a general rule.

Inter Fee Earner Discussions | Are They Recoverable?

The topic of inter fee earner discussions arises in most detailed assessments. Many paying parties argue that they are not allowed under almost any circumstances and, historically, these costs are, in most cases, disallowed on assessment, irrespective of whether it led to an ultimate saving in costs by enabling effective delegation of work to lower grade fee earners.

The Power To Set Off Costs Against Costs In A QOCS Case

In November last year the Court of Appeal decided that fixed costs continued to apply in a case which started under the RTA Protocol and was settled by way of the acceptance of a Part 36 Offer which referred to CPR 36.13 and offered to pay “costs to be subject to if not agreed”.

As a consequence of that decision the Appellant (original defendant) was awarded her costs of the appeal.

The question to be determined now was whether the court had jurisdiction to set off those costs against the costs owed to the Respondent (original claimant) in the substantive claim.