The defendant costs specialists

    13 Comments

  1. I see in your article you refer briefly to whether attendance on ATE insurers etc is an inter partes expense – a debate that has been had on these pagaes before.

    Master Hurst has now reviewed the various “authorities” and concluded that it is. My guess is that this will now be the last word at first instance.See paras 451 to 466 of Motto v Trafigura Ltd (15 Feb 2011).

    Jacques Hughes

    22nd February 2011

  2. One of the counsel sent to me, but I haven’t seen it on Lawtel yet. On the other hand it is very long so it may be that it is still being summarised

    Jacques Hughes

    22nd February 2011

  3. First instance, non-binding decision…

    I wonder what approach other costs judges will now take. The last case I had before Master Haworth he disallowed these costs. I would be somewhat surprised if he, or other costs judges, now conclude they were wrong (whatever weight this decision may have in other courts).

    Simon Gibbs

    22nd February 2011

  4. I suppose it may be said to be a decision of particular weight, as it was a reserved judgment decided after full argument (3 silks on one side, including Nicholas Bacon, 2 silks on the other side plus a specialist junior). The big question must be: what will Master Rogers make of it? He after all has the distinction of having decided the point both ways! (Woolley/Bollito)

    Jacques Hughes

    22nd February 2011

  5. The last two costs judges I was before disallowed all funding costs within the claimant’s bill (both were bills of over £1m so these costs were substantial.)

    I doubt any first instance decision will be the last word on the subject.

    Defendant Solicitor

    22nd February 2011

  6. I never even began to understand Master Roger’s approach in those two case. If he was correct in Woolley that: “In my judgment, the costs of funding have never been recoverable and nothing has changed as a result of the introduction of CPR or, indeed, as a result of the introduction of the CFA Regulations, and therefore that element of this bill in which the Claimant seeks to recover is funding costs, fails,” then that is an end to the matter.

    How can there then be a discretion to allow such costs because the amount of the irrecoverable costs is “sufficiently large”. Are we to have solicitor/own client costs allowed between the parties if they are large enough?

    Simon Gibbs

    22nd February 2011

  7. He had a bad day indeed. He noted that there was no binding authority and that the world would benefit from such an authority and then refused permission to appeal. Genius

    Chris

    22nd February 2011

  8. If its any help, those of us whom work in the real world i.e. anywhere outside of the SCCO, will be aware that most DJ’s, and RCJ’s, routinely allow funding work as a a matter of course – and that is country-wide.
    It doesnt stop Defendants raising and maintaining the argument of course, nor pleading “Wooley” as the singular and definitive decision on the subject

    Anonymous

    23rd February 2011

  9. I didn’t say the first instance decision would be the last word, I said it was likely to be the last word at first instance! A key distinction.

    Jacques Hughes

    23rd February 2011

  10. which again begs the question as to why Roger’s declined permission to appeal for a binding authority

    To be fair this issue has rumbled on forever and a day and ultimately both sides of the litigation fence make money off this issue and so maybe a binding authority is in no ones interest

    chris

    23rd February 2011

  11. Master Rogers moved in mysterious ways. He certainly generated a lot of appeals – one barrister quipped to me that a lot of high court judges have extra time on their hands since he retired. The reasoning in Bollito is laugh aloud funny – and in fairness to the master’s memory, there aren’t many costs judges whose judgments can be said to have added to the gaiety of the nation in this way…

    Jacques Hughes

    23rd February 2011

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