The defendant costs specialists

Posts Tagged "conduct"

Court of Appeal Legal Costs Judgments

By on Feb 9, 2010 | 5 comments

You wait ages for an interesting legal costs decision from the Court of Appeal and then two come along together.  Both cases concerned a similar issue as to the extent of a costs judge’s discretion to limit costs in a manner that appears to go beyond a strict reading of the final costs order.   In Drew v Whitbread [2010] EWCA Civ 53 the claim had been allocated to the multi track on the basis of the claimant’s schedule of special damages.  At trial the matter went into a second day and the judge limited the claimant’s damages to an amount within the fast track limit.  The final order was that costs were to be assessed on the standard basis.    The District Judge ruled on commencement of the detailed assessment that costs would be assessed as if the matter had been allocated to the fast-track.  This restricted the level of costs recoverable.    The Court of Appeal recognised that the case raised a number of points of principle:   “Where the trial judge has in a multi-track case ordered costs to be paid on the standard basis, to what extent is a costs judge free to rule that the case was in reality a fast track case and assess trial costs on a fast track basis?  Is this a matter which a paying party has to raise before the trial judge or be precluded from raising the point thereafter?  In particular should a party obtain a ruling from the trial judge as to whether a case should have been disposed of within a day when in fact it was not?  If the costs judge is free to consider whether a case should have been allocated to the fast track, how should he or she approach assessment thereafter; can he or she simply say I am going to assess the costs of trial as if it was a fast track case or is it simply something to be taken into account when assessing the costs?”   The Claimant argued by reference to Aaron v Shelton [2004] EWHC 1162 that if a party wishes to argue that a case was, in reality, a fast-track case, and in particular that it...

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Reducing costs on the grounds of conduct

By on Feb 16, 2007 | 0 comments

Three recent Court of Appeal decisions have done much to clarify the powers of a costs judge, during detailed assessment, in relation to disallowing costs on the grounds of the conduct of the receiving party. The difficulties in this area were largely caused by a High Court decision, Aaron v Shelton [2004] EWHC 1162. That authority seemed to indicate that if a paying party were going to rely on the conduct or misconduct of the non-paying party in order to seek a reduction in the costs to be paid, the time to raise that factor was at the end of the trial, or at the time of the making of the consent order, and not before the costs judge at the time of assessment. This decision has caused particular difficulty for defendants. Often, little or no consideration is given to the conduct of the other party, or the extent to which they have abandoned heads of claim, when the final order is made. This is not entirely surprising in the eagerness to settle the substantive claim. The application of Aaron, which was largely followed by the judiciary, and leapt on by claimants, precluded defendants from raising conduct issues at detailed assessment even where the conduct of the claimant cried out for some reduction of costs. The judgment in Ultraframe (UK) Ltd v Fielding [2006] EWCA Civ 1660 has now overturned the principle formulated in Aaron on the basis that it was too broadly stated. The correct approach was held to be, as per Waller LJ: “34. It seems to me that consideration of a party’s conduct should normally take place both at the stage when the judge is considering what order for costs he should make, and then during assessment. But the court will want to ensure that dishonesty is penalised but that the party is not placed in double jeopardy. Ultimately, the question is one of the proper construction of the order made by the judge. Thus it will be important for the judge, who is asked to take dishonesty into account at the end of a trial when considering the order as to costs, to consider what is likely to occur on assessment. Where dishonest conduct is...

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