Fixed recoverable costs

Part 36 Acceptance And Conventional (Assessed) vs Fixed Recoverable Costs

Overturning a first appeal decision of His Honour Judge Wulwik in the High Court, Lord Justice Newey determined that acceptance of a Part 36 Offer which referred to CPR 36.13 and offered to pay “costs to be subject to if not agreed” did not amount to contracting out of fixed costs, which continued to apply.

Informed Consent

CPR 46.9(3): Informed Consent In Solicitors Act Detailed Assessments

Master Victoria McCloud (sitting as a Deputy Costs Judge in the SCCO) determined preliminary issues in the course of a proceeding under the Solicitors Act 1974, namely:
whether the entirety of the solicitors’ fees were incurred with the client’s consent in the sum claimed; or, alternatively
if not whether at least the level of success fee was incurred with consent.

FULLICK & ORS v THE COMMISSIONER OF POLICE FOR THE METROPOLIS [2019] EWHC 1941 (QB)

Recoverability Of Inquest Costs And Proportionality

This was the first appeal in which the recoverability of inquest costs in civil claims has fallen to be considered since introduction of the Jackson reforms. It followed an assessment of costs by Deputy Master Keens in the SCCO when he allowed the sum of £88,356.22 as a against an original claim of £122,000 excl VAT. The claim was for damages for breach of Article 2 of the European Convention on Human Rights, negligence and misfeasance in public office following the death of Ms Jones who became ill at a police station.

West and Demouilpied: ATE Premiums, Reasonableness And Proportionality

The long awaited and much anticipated judgment in these appeals has been handed down.
The appeals raised a number of specific issues arising out of the respondent’s successful challenge on an assessment of the claimant’s costs to the amount of the ATE insurance premium recoverable by the appellants.
They also raised a number of wider points relating to reasonableness and proportionality and the proper approach to the assessment of costs.

JLE v Warrington & Halton Hospitals NHS Trust Foundation Trust [2019] EWHC 1582 (QB)

High Court restores Claimant‘s ’additional amount’ under CPR 36.17(4)

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.

HORNE v PRESCOT (NO.1) LTD [2019] EWHC 1322 (QB)

Interest exclusive Part 36 Offers in detailed assessment proceedings

Disagreeing with Judge Robert Owen QC in Potter v Sally Montague (Nottingham CC), HHJ Nicol found that a Part 36 Offer made in proceedings and expressed to be exclusive of interest was a valid Part 36 Offer.

East Sussex Fire And Rescue Service v Austin [2019] EWHC 1455 (QB)

Proportionality: money isn’t everything

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 , including that the base fees, viewed globally, were not disproportionate.

AINSWORTH v STEWARTS LAW [2019] EWCA Civ 897

Points of dispute in solicitor and client assessments: it’s in the detail

This was an appeal from a decision of Master Gordon-Saker made in the course of 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.

Malmsten v Bohinc [2019] EWHC 1386 (Ch)

Proportionality: a view from the High Court

It’s been six years since the introduction of the “new” proportionality rule in CPR 44.3(5). In that time there have been a handful of decisions at circuit judge level but none from the higher courts, until now. On appeal from Master Whalan in the Senior Courts Costs Office, The Hon. Mr Justice Marcus Smith was tasked with determining a number of issues arising from the of costs including the correct approach to proportionality. Unfortunately, but not surprisingly, the decision does not offer much in the way of general guidance.

white-anor-v-wincott-galliford-ltd

10% ‘additional amount’ denied following successful Part 36 Offer on hourly rates

This was a decision of Deputy Master Friston (author of Friston on Costs) in the Senior Courts Costs Office. Having determined that the Claimant had made and beaten a valid Part 36 Offer solely in relation to hourly rates the Master concluded that it would be unjust to award them an additional 10% uplift on the assessed profit costs.