In this landmark decision the Court of Appeal took a trawl through the relevant provisions of the fixed costs regime in CPR 45 in order to determine whether and in what circumstances Counsel’s fee for an advice on settlement might be recoverable in addition to the fixed recoverable costs provided for under CPR 45.29C and Table 6B.
In a short judgment following trial at which the claimant was awarded damages of £126,841 against a claim for £1.5 million Mr Justice Martin Spencer rejected calls from the defendant to disallow a proportion of the claimant’s costs on the basis that the claim was exaggerated, unsupported by the evidence and unsustainable.
In November last year we reported on the case of Finnegan v Frank Spiers  EWHC 3064 (Ch) in which Mr Justice Birss held that there is no jurisdiction to award a payment on account under CPR 44.2(8) in circumstances where a claim is settled by way of acceptance of a Part 36 Offer.
Master Cook has endorsed the approach taken by HHJ Robinson in I v Hull & East Yorkshire Hospitals NHS Trust where overturned the refusal of DJ Batchelor to award the claimant in a long running clinical negligence matter a substantial payment on account of quantum costs.
The Court of Appeal has considered the correct approach to QOCS in “mixed” cases involving personal injury and non personal injury claims. Affirming the approaches taken in Jeffreys v Commissioner of the Metropolis  EWHC 1505 (QB) and Siddiqui v The Chancellor, Masters and Scholars of the University of Oxford  EWHC 536 (QB) and upholding the decision of Mrs Justice Whipple DBE in The Commissioner of Police of the Metropolis v Brown  EWHC 2046 (Admin) Lord Justice Coulson rejected arguments that in order for the exception to QOCS at CPR 44.16(2)(b) to apply the personal injury claim and the non-personal injury claim must be “divisible”.
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.
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.
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.
Following the decision of Birss J in J P Finnegan v Spiers (t/a Frank Spiers Licensed Conveyancers)  EWHC 3064 (Ch) which we reported on last year, HHJ Rawlings has found that the court has no power to award a payment on account of costs in circumstances where the substantive action has settled by way of acceptance of a Part 36 Offer.