“In my judgment, the Claimants are right that it is wrong in principle for a party to use the CCO regime, in effect, as a proxy for the abuse of process jurisdiction. Similarly, it would be wrong for the court to impose a CCO in order to punish a party who has lawfully brought proceedings in this jurisdiction because the court thinks that they should have issued their proceedings in a different jurisdiction…. the imposition of a CCO would almost certainly have the effect of forcing the Claimants to abandon their claims. If the Defendant considered that the various reasons put forward … meant that the continuation by the Claimants of these proceedings would be an abuse of process, then the Defendant should have persisted with its strike out application.”
In the course of the costs budgeting exercise the Claimants had complained, in particular, about the level of the Defendant’s incurred and estimated disclosure costs and asked the court both comments on those incurred and significantly curtail, if not disallow altogether, the costs of disclosure going forward.
This appeal from a summary assessment of costs was brought on grounds that the District Judge had failed to have sufficient regard to the components of the claimant’s N260 Statement of Costs and had effectively imposed her own unilateral tariff without any calculation or proper reasoning, contrary to the Court of Appeal’s guidance in 1800 Flowers Inc v Phonenames Limited  EWCA Civ 721.
This Court of Appeal decision concerned the circumstances in which the award to a Claimant who beats its own Part 36 Offer of some or all of the specified relief under CPR 36.17 may be considered to be unjust.
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.
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.
Mr Justice Teare determined an application for indemnity costs following the dismissal of the second claimant bank’s US$77 million claim for an indemnity from the defendant underwriter pursuant to a war risks insurance policy for the constructive total loss of the vessel BRILLANTE VIRTUOSO by piracy.
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.
This was an appeal by the mother in Children Act proceedings against an order that she do pay £109,394 in costs. In the course of the proceedings the mother had been given a four year prison sentence in Russia for attempting to bribe a police officer to instigate criminal charges against the father in order to further her own claim on the children. Despite her incarceration, the mother had continued to pursue an appeal against an order that the father have custody of the children, before finally conceding, leaving only the incidence of costs to be decided.
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.