CPR 14.1A sets out a clear procedure for making a formal admission. It would be undesirable if uncertainty were created by giving equal effect to other communications that do not satisfy that description. If the defendant chooses to make a communication which is not a admission within the meaning of the CPR, that document will be one factor in the case, but the availability of a route to making a formal admission that puts liability beyond argument will mean that the court is entitled to place less weight on it in the overall conclusion.
In Richard v The British Broadcasting Corporation (BBC) & Anor  EWHC 1666 Chief Master Marsh urged a “degree of caution” when considering whether to make a comment about incurred costs at a costs management hearing, saying “To my mind there is little or no value in the court recording a general comment about incurred costs along the lines that the incurred costs are “substantial” or they are “too high”. If the court wishes to record a comment that the incurred costs are “excessive” or they are “unreasonable and disproportionate” it will wish to be sure that the comment is made on a sound footing, rather than impression, because commenting is quite unlike the exercise of approving a figure per phase for future costs. The court will also wish to consider the utility of making a comment unless it is specific and well-founded.”
These sentiments have been echoed by Master Kaye in a decision handed down last November, but only just published.
“It is entirely routine for clients to seek Section 70 Detailed Assessment and for there to be a dispute between the parties as to whether the Bill in question is an interim statute, or interim non-statute, Bill. If the Solicitor prevails in arguing that it is an interim statute Bill and beyond the scope of Detailed Assessment, that is the end of it. However, if the client prevails in arguing that it is an interim non-statute Bill, the usual outcome is for an order that the Solicitor should render a final Bill for those costs, that will enable the same to be assessed as the client wishes.”
In June 2019 Mr Justice Morgan examined a long line of authority ranging in date from 1727 to 1921 to determine important issues as to the circumstances in which litigation friends can or should be ordered to pay other parties’ costs, and where orders for costs might be made in their favour.
In this short judgment Mr Christopher Hancock QC (sitting as a Judge of the High Court) confirmed the position where a party has a contractual entitlement to costs.
The defendants in this anti-competition and breach of contract case sought security for costs against the claimant.
The claimant agreed with D4-D8 to provide security for 65% of their incurred and anticipated costs. However, D4-D8 sought security at a higher level than this based upon a potential award of indemnity costs given the “wide ranging and serious allegations of impropriety, which may include deceit”.
The defendants’ case was based largely on the decisions in Danilina v Chernukhin  EWHC 2503 (Comm) (which we reported on here) and Re Ingenious Litigation  EWHC 235 (Ch). In both cases the court awarded security at 75%.
Master Gordon-Saker determined three issues which arose in the course of a detailed assessment, namely:
i) whether the caps on recoverable costs of budgeting provided by sub-paragraphs 7.2(a) and (b) of Practice Direction 3E of the Civil Procedure Rules 1998 include or exclude value added tax;
ii) whether the Claimant was entitled to recover the sum of £2484.48 in respect of interest paid under a disbursement funding loan; and
iii) whether the Claimant’s entitlement to interest should run from 3 months after the date of the order for costs.
In this case Mr Justice Zacaroli determined that the Claimant’s Part 36 Offer to settle its claim in the sum of £48,290.00, which amounted to 99.7% of the amount claimed was a genuine offer to settle the proceedings
In this short judgment Mr Justice Cavanagh declined to make an issue-based costs order despite the claimant having been unsuccessful in two parts of his claim on the basis that the evidence which he had obtained and presented in support of these had not been wasted.