Friston v Cook
OK. So the title of this post is somewhat misleading. I’m not running with that debate (I caused enough trouble with my Costs Counsel v Costs Lawyer post).
Dominic Regan, in his recent book review of “Friston on Costs“, as he titles it, does start down that road but happily concludes: “Buy both”.
This review originally appeared in New Law Journal and is reproduced with the kind permission of Dominic.
Late last year Ward LJ described Cook on Costs as the seminal work on a subject which has created more angst (and generated yet more costs) in the last decade than any other subject in the field of civil procedure. The costs wars are objectively and masterfully described in the Jackson material. These concerns provoked the then master of the rolls to turn to Sir Rupert Jackson for guidance on what on earth to do.
Those who are recently qualified will find it impossible to believe that not so long ago costs were a mere afterthought. Of course, there were arguments about quantum but the elaborate technical arguments which are now commonplace just did not arise.
Dr Mark Friston (Kings Chambers) has now entered the arena with a blockbuster running to over 1,200 pages. I adore books but this is the first time I have ever seen the text extending to the inside back cover of a tome. The obvious question is which one do I buy? (Cook or Friston?) Both is the answer. They complement one another and do not occupy the same turf.
Friston has produced an exhaustive, technical encyclopaedia of costs. Arcane points are covered in exquisite detail. The footnotes are magnificent. Can I recover the cost of an expert report which I did not rely upon? Here you will find your answer. Those on the frontline of costs disputes should have this work surgically attached to them. The publishers, Jordans, are to be congratulated upon producing the title at a very modest price (even cheaper on Amazon at £56.67 as I write).
“Those on the frontline of costs disputes should have this work surgically attached to them.”
There is only one serious problem with the book and it is not down to the author. The index is thorough, too thorough. Look for one of the many landmark cases and you will find 10–15 or even more than 20 references. Which one deals with the crux of the case and describes the key principle(s)? The next edition, and I am certain there will be one, would benefit from highlighting in bold the main reference. Indeed, might not the next edition usefully be accompanied by a CD version to make searching easier?
Cook on Costs, unlike its author, has fattened up considerably over the years. What began life as something akin to a novella because back then the law was simpler is now a full blown work. It is held in high regard. I had a sense of déjà vu when reading a recent case from the Court of Appeal on the question of retainers. When I looked up the relevant passage in Cook I could see that the court had utterly accepted the lucid explanation put forward in the book. Unbelievably, Cook is an entertainment. One can read it and derive both knowledge and pleasure for it is witty and accessible. Few but those owners of several anoraks would sit down with Friston, panting at what chapter 12 might contain.
Whereas Dr Friston takes pleasure in finding those obscure gems of authority, Cook will only publish cases decided by a High Court judge or an appellate court. So, we have Friston which I think has made a significant contribution to the vast costs landscape. It is ironic that the important Part 36 decision in Gibbon v Manchester City Council  All ER (D) 218 (Jun) only appeared after publication of Friston; he appeared for Mrs Gibbon before the Court of Appeal! A new Cook will appear in November. The combined cost of both titles is less than the rate for one fee-earner putting in an hour. Buy both.
Book review by Dominic Regan, professor of law
There is one aspect of the review I would take issue with and that it the view that:
“Whereas Dr Friston takes pleasure in finding those obscure gems of authority, Cook will only publish cases decided by a High Court judge or an appellate court.”
Cook on Costs 2010 refers to the cases of Brierley v Prescott  EWHC 90062 (Costs) and Pirie v Ayling  EWHC 9006 (Costs). These are both first instance SCCO decisions. I only mention these two particular examples as I acted for the defendants in both cases. There are various other examples of decisions from the lower courts.
I know that Dr Friston was actually meticulous in trying to minimise reference to decisions of the lower courts (no doubt recognising the fault that many costs practitioners fall into where every decision by a deputy district judge or costs officer becomes elevated to a binding authority). Those few cases from the lower courts (including coincidentally both Brierley and Pirie) that are mentioned in Friston are ones where there is a real point of principle.