13 October, 2011
Filed UnderLegal Costs
Court of Appeal judgment in Motto & Others v Trafigura  EWCA Civ 1150 out. Summary of leading judgment:
"i) Proportionality: I would allow the defendants' appeal, and would hold that it follows that any item on the Bill is only to be allowed if it was necessary;
ii) Vetting costs: I agree with the Judge's conclusions, save that the necessity test must be satisfied before any item is recoverable, and any specific (as opposed to generic) item can only be recovered if it falls within the grasp of the relevant claimant's CFA;
iii) Pre-Action Protocols: I would dismiss the defendants' appeal against the Judge's finding that there should be no disallowance or reduction in respect of any sum claimed in the Bill on the ground of the claimants' failure to comply with any protocol or the PDPAC;
iv) Medical reports: Subject to the point that the cost of these reports should not be recoverable if it was unnecessary to obtain them, I would uphold the Judge's conclusion on this issue.
v) Abandoned claims: Subject to satisfying the requirement of necessity in relation to an item, the claimants can recover costs in respect of the "abandoned claims" in so far as it was reasonable and proportionate to plead, investigate and pursue them;
vi) Settlement and distribution: I would uphold the Judge's conclusions, save I would discharge his imposition of the 26 October 2009 cut-off date;
vii) Cost of funding: Contrary to the Judge's conclusion, I do not consider that the claimants can recover the costs of preparing and advising on the CFAs, nor do I consider that they can, recover any costs incurred in discussing the litigation with,, or taking instructions from, with the ATE insurers;
viii) Success fee: I would uphold the Judge's determination of 58% uplift for both Leigh Day and counsel;
ix) ATE premium: I would uphold the Judge's decision to fix the premium of £9,677,554 by reference to a 65% prospect of success."
Much to mull over. Something for claimants and something for defendants.