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Additional work and proportionality

By on Jul 20, 2018 | 0 comments

The Senior Costs Judge Master Gordon-Saker prefaced his recent decision on proportionality, in Various Claimants (In Wave 1 of the Mirror Newspapers Hacking Litigation) v MGN Ltd [2018] EWHC B13 (Costs), with the warning: “this judgment should not be taken as any attempt at providing guidance. I say that because I know that anything said about proportionality, at whatever judicial level, is subjected to anxious scrutiny. First this is not a judgment of the Court of Appeal. Secondly the circumstances which give rise to this judgment are very unusual.” That said, the decision does highlight one aspect of the proportionality test that merits consideration. Of the various factors the Court must take into account when considering proportionality is: “any additional work generated by the conduct of the paying party” The Master summarised his conclusions as follows: “62. Contrary to the Claimants’ submission, it seems to me that the conduct relied on must be conduct in the litigation rather than the conduct which gave rise to the cause of action. The conduct which caused the wrong will be compensated in damages or other relief. In my view the purpose of r.44.3(5)(d) is to enable the court to take into account that the costs may have been increased because work which would not ordinarily have been required has been required by the way in which the opponent has fought the claim. 63. It also seems to me that the conduct relied on does not need to be misconduct. Had that been intended misconduct could easily have been substituted in the rule for conduct. 64. In the event in my judgment there was no additional work caused by the conduct of the Defendant. That the Defendant chose to deny liability until 6 months before trial did not cause additional work. It caused the claim and the work involved in the claim. If a failure to concede by the party who eventually loses is considered of itself to cause additional work, this factor would apply in every case which did not settle within the relevant pre-action protocol period. 65. The Defendant fought these claims vigorously and did not concede liability at the earliest opportunity. As a consequence it will have to pay a greater...

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Costs & Fees Encyclopaedia 2018-19

By on Jun 27, 2018 | 0 comments

The Costs & Fees Encyclopaedia continues to expand year-by-year and the 2018-19 Edition runs to 551 pages.  (It rather optimistically describes itself as “portable” and suitable for a briefcase.  It is plainly a desktop reference guide.) Pages 1-96 consist of the relevant costs provisions of the CPR and Practice Directions. Pages 97-102 provides J-Code “cheat sheets”. Pages 103-104 deals with fixed costs for solicitors and public authority deputies in Court of Protection work. Pages 105-106 contain the Guideline Hourly Rates for Summary Assessment. Pages 107-121 consist of the Civil Legal Aid (Remuneration) Rates: Extracts from the Civil Legal Aid (Remuneration) Regulations 2013. Pages 125-223 deals with Costs in Criminal Proceedings and includes: Extract from National Taxing Team Guidelines Extracts from the Criminal Legal Aid (Remuneration) Regulations 2013 Criminal Defence Service (Very High Cost Cases) (Funding) Witness Allowances in Criminal Proceedings Criminal Procedure Rules 2015, Part 45: Costs Costs Out of Central Funds Inter Partes Costs in Criminal Proceedings Practice Direction (Costs in Criminal Proceedings) 2015 Pages 225-226 includes Motor Mileage rates, VAT rates and IPT rates. Pages 229-436 covers an electric mix including: Civil Proceedings Fees Order 2008 Conditional Fee Agreements Order 2013 Consular Fees Order 2012 Coroners Allowances, Fees and Expenses Regulations 2013 Court of Protection Fees Order 2007 Crown Office Fees Order 2013 Damages-Based Agreement Regulations 2013 Ecclesiastical Judges, Legal Officers and Others (Fees) Order 2017 Family Proceedings Fees Order 2008 First-tier Tribunal (Immigration and Asylum Chamber) Fees Order 2011 First-tier Tribunal (Property Chamber) Fees Order 2013 Gender Recognition (Application Fees) Order 2006 Immigration and Nationality (Cost Recovery Fees) Regulations 2014 Immigration and Nationality (Fees) Order 2016 Immigration and Nationality (Fees) Regulations 2018 Insolvency Proceedings (Fees) Order 2016 Insolvency Practitioners and Insolvency Services Account (Fees) Order 2003 Land Charges Fees Rules 1990 Land Registration Fee Order 2013 Legal Officers (Annual Fees) Order 2017 Legal Services Act 2007 (Claims Management Complaints) (Fees) Regulations 2014 Magistrates Courts Fees Order 2008 Non-Contentious Probate Fees Order 2004 Oath Fees Order Offers to Settle in Civil Proceedings Order 2013 Public Guardian (Fees etc) Regulations 2007 Public Record Office (Fees) Regulations 2017 Supreme Court Fees Order 2009 Upper Tribunal (Lands Chamber) Fees Order 2009 Pages 451-520 contain various case summaries from Costs Law Reports divided by topic. ...

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Naming wrong defendant in CFA

By on Jun 25, 2018 | 0 comments

One of the long running battle grounds in costs litigation concerns the consequences of naming the wrong opponent in a conditional fee agreement.  Because this is ultimately a contractual issue, it remains just as relevant today as under the now revoked Conditional Fee Agreement Regulations.  Paying parties argue that no costs are recoverable where the incorrect opponent is named in the CFA.  I have argued the point both successfully (Hailey v Assurance Mutuelle des Motards) and unsuccessfully (Brierley v Prescott). In Engeham v London and Quadrant Housing Trust & Another [2015] EWCA Civ 1530 the Court of Appeal, without hearing argument on the issue, accepted that costs could not be recovered from a party different to the one named in the CFA. The Court of Appeal has now revisited the issue in Malone v Birmingham Community NHS Trust [2018] EWCA Civ 1376.  Here, the CFA stated, under the heading “What is covered by this agreement”: “All work conducted on your behalf following your instructions provided on [sic] regarding your claim against Home Office for damages for personal injury suffered in 2010.” In the event, the claim succeeded against Birmingham Community NHS Trust, rather than the Home Office.  At first instance and on the initial appeal, the Defendant successfully argued no costs were payable.  On the facts of the case, the Court of Appeal allowed the appeal.  The Court accepted that the reference to “Home Office” was descriptive of the instructions received rather than of the work to be done. It related to past instructions rather than future work. Although the Claimant was successful on the particular facts of the case, the decision does little to stop challenges in very similar situations.  The Court of Appeal’s commentary on HHJ Stewart QC’s decision in Law v Liverpool City Council [2005] EWHC 90020 (Costs) is as important as the Malone decision itself: “In that case the CFA was stated to cover: ‘Your claim against Liverpool City Council for damages for personal injury suffered on 26th March 2003’. Proceedings were brought against the Council as the occupier of the property where the injury was suffered and a defence was served. Subsequently the Council stated that the property had been transferred shortly prior to the accident to a housing...

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Premature witness statements

By on Jan 23, 2018 | 5 comments

The recent decision of Master Leonard in Douglas v Ministry of Justice & Anor [2018] EWHC B2 (Costs) concerned the issue of the recoverability of the costs of attending an inquest. One particular comment made during the judgment has attracted attention: “... the cost of preparing witness evidence will normally be recoverable as part of the cost of a successful claim even if that claim settles before the witness evidence is ever needed.” Gordon Excall’s Civil Litigation Brief blog interpreted this as meaning: “This emphasises the point that there is nothing to lose (and everything to gain) by the careful and early collection of witness evidence.” It is no doubt correct that the mere fact a matter settles prior to witness statements being served will not of itself prevent recovery of the costs of obtaining them. However, I am not sure that Master Leonard sought to imply that the costs of obtaining witness statements would always be recoverable regardless of the stage of the claim they were obtained.  It is important to the see the context within which his comment was made: “one must not use hindsight in applying the Gibson principles. So, for example, the cost of preparing witness evidence will normally be recoverable as part of the cost of a successful claim even if that claim settles before the witness evidence is ever needed.” This is no more than pointing out that hindsight will not usually be applied when assessing costs.  The key issue remains as to whether obtaining witness evidence was reasonable at that point in time.  Obviously, each case is fact specific, but costs are routinely disallowed on detailed assessment on the basis they have been incurred prematurely. Friston’s Civil Costs correctly summaries the position: “Speaking of a costs regime long since passed, Lord Hanworth referred to the following extract from a Master’s certificate dealing with material thrown away: ‘We have always acted upon the principle that the costs of all work in preparing, briefing, or otherwise relating to affidavits or pleadings, reasonably and properly and not prematurely done, down to the time of any notice which stops the work, are allowable; and … the Taxing Master, having regard to the circumstances of each case, must decide whether...

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Cap on costs of provisional assessment

By on Dec 21, 2017 | 4 comments

The Court of Appeal has given an important judgment on the issue of the costs of provisional assessment.  In W Portsmouth and Company Ltd v Lowin [2017] EWCA Civ 2172, the Court ruled that the £,1500 cap on the costs of provisional assessment continues to apply even where a party has succeeded on a Part 36 offer made in the assessment proceedings. This is to be distinguished from the situation where a party succeeds on a Part 36 offer in relation to a fixed fee matter.  In that case, Part 36 trumps fixed fees (as per Broadhurst v Tan [2016] 1 WLR 1928). This is a sensible decision and should speed up the provisional assessment process by reducing the scope for argument and ensure the overall costs are proportionate. Interestingly, an unnamed spokesman for the Association of Costs Lawyers was reported as commenting: “While the clarity provided by the ruling was needed, the outcome is very harsh for costs lawyers. There will be plenty of cases where the paying party does not accept a part 36 offer and instead causes the other side to spend significantly more than £1,500 in dealing with costs issues. But on beating their own offer at assessment, the receiving party enjoys all the usual benefits, except in relation to this one aspect of their case. And it will be their costs lawyer who suffers through no fault of their own. We call on the Civil Procedure Rule Committee to consider the impact and fairness of this ruling – making this exception seems at odds with the thrust of the whole part 36 scheme.” I am not sure I agree. Plainly, this decision will have no adverse impact on in-house Costs Lawyers. It will also have no impact on Costs Lawyers employed by costs firms. I believe the “harsh” outcome being described was intended to mean: “Costs Lawyers who own their own costs firms and who conduct costs litigation on a CFA Lite basis will lose out because they will be unable to recover any shortfall between the work undertaken and the cap of £1,500”. I do not know how common it actually is for costs firms to agree to limit their fees to the level...

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BNM v MGN Ltd – Court of Appeal decision on proportionality

By on Nov 8, 2017 | 0 comments

The Court of Appeal decision in BNM v MGN Ltd [2017] EWCA Civ 1767 manages to be both very important and a massive anti-climax. The decision is important because it finally resolves the issue of whether post-1 April 2013 additional liabilities are subject to the old or new proportionality test.  The answer is that the old test applies (contrary to Master Gordon-Saker’s original decision).  Although this will potentially have a large impact on the costs recoverability of some big-ticket costs claims, this is mainly limited to a dwindling number of old cases (4½ years and older). What the judgment entirely fails to do is give any wider guidance as to how the new test should be applied.  Even on the facts of the case, we still do not know the answer as the matter is to be referred back to Master Gordan-Saker for him to have another...

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