Heywood and Black - News, Updates and Recent Decisions

Dunnett -v- Railtrack plc [2002] EWCA Civ 302, [2002] All ER (D) 314 (February), [2002] 16 LS Gaz R37

a party turning down out of hand the chance of Alternative Dispute Resolution when suggested by the Court may have to face costs consequences”.

Craig -v- Railtrack plc [2002] EWHC 168 (QB), [2002] All ER (D) 212 (February)

“indemnity costs for late submission of liability”.
it was known from an early stage that one of the three Defendants would be liable to the Claimant but no offer or admission was made until six days prior to the Trial. The Claimant received costs of the liability issue from the date by which the Defendants should have assessed the situation on liability and received interest on those costs at 10% above the base rate.
See Hurst -v- Leeming [2002] EWHC 1051 [2002] All ER (D) 135 May, Ch.D when penalty in costs for refusing mediation in cases except where refusal was justified.

Kiam -v- MGN Limited (No. 2) [2002] EWCA Civ 66 [2002] 2 All ER 242 CA

“rejection of offer does not result in indemnity costs”.
important difference between rejection by Defendant of Claimant’s Part 36 Offer and rejection by Claimant of Defendant’s Part 36 payment/offer. In the latter case the rules do not need to provide any additional incentive such as indemnity costs for the Claimant to accept the offer. In the former case, however, without such an incentive, a Claimant’s offer would have no force.
See Excelsior Commercial and Industrial Holdings -v- Salisbury Hamer Aspden and Johnson [2002] EWCA Civ 879 [2002] All ER (D) 39 (June) where a Claimant with a poor case rejected a substantial payment in and only got £2.00. Indemnity costs were awarded.
Note also that the Reid Minty case decided that, outside Part 36, indemnity costs could also be awarded on the basis of unreasonable conduct.

Huck -v- Robson [2002] EWCA Civ 398 [2002] All ER (D) 316 (March)

An offer made prior to issue still counts as a Part 36 offer.
A Judge has a discretion to refuse incentives where an offer is made as a tactical step designed to obtain such incentives (e.g. a Part 36 offer to accept 99.9% liability).

Factortame -v- Secretary of State for Transport, Local Government and the Regions [2002] EWCA Civ 22 [2002] All ER (D) 238 (January) [2002] NLJR 171.

Costs where Part 36 payment accepted late but after amendment by the offeror.
Where a Part 36 payment equal to or greater than the amount eventually accepted had not been accepted in time the starting point was that the Claimant would be treated as the unsuccessful party from the date when the payment in should have been accepted.
However, Judge may take the view that the Defendant had withheld material and had not allowed the Claimant to make proper appraisal of the Defendant’s case.
Where the Defendant makes a Part 36 offer/payment which the Claimant does not accept, the Defendant then amends his case on the basis of information always available to him and the Claimant promptly accepts the Part 36 offer/payment, the Claimant is the successful party.

Dooley -v- Parker [2002] EWCA Civ 96 (7th February 2002, unreported).

“An Appeal against an Order as to costs made by a District Judge at the conclusion of a case allocated to the multi-track lay to the Court of Appeal”.
This doesn’t apply to the decision of a District Judge on Detailed Assessment of multi-track costs).

Associated Newspapers -v- Impac Limited [2002] FSR 293 Master Turner (Lord Archer article).

By withdrawing proposed claim at the eleventh hour, the Defendant left itself exposed to a claim for costs.

Lownds -v- Home Office [2002] EWCA Civ 365 [2002] All ER (D) 329 (March), Times 5th April 2002.

Because of the effect of the transitional provisions and the fact that most of the work was carried out pre: 26th April 1999, the Court of Appeal would not interfere with the decision not to consider the question of proportionality in relation to the pre: 26th April 1999 work.

Guidelines given were as follows:-

The requirement of proportionality has to be taken into account when deciding whether an Order for Costs should be made and when assessing costs.
The requirement of proportionality calls for the parties to plan how the litigation should be carried out so as to minimise expense.
In assessing costs, a two-stage procedure should be adopted. Firstly, the Costs Officer should adopt a global approach considering whether the total sum claimed appears disproportionate having regard to the provisions of CPR 44.5 (3). If costs not disproportionate, all that was normally required at the second stage was that each item should have been reasonably incurred and be reasonable in amount. If costs appeared to be disproportionate, the Costs Officer should apply a test of necessity and allow a reasonable amount for necessary items.
The Costs Officer when making his preliminary judgment on proportionality, should have regard to whether the appropriate level of fee earner or Counsel has been employed, whether offers to settle had been made, whether unnecessary experts were instructed etc. The conduct of the other party is highly relevant. The standard of necessity should not be applied with the benefit of hindsight but should be a standard which a competent practitioner can achieve without undue difficulty.
Where a Claimant recovers significantly less than he claimed, the test of proportionality is what it was reasonable for the party in question to believe might be recovered at the time that he made his claim. It would be reasonable for a Defendant to take a claim at its face value.
Guidance not to be applied retrospectively where costs already assessed.

Booth -v- Britannia Hotels Limited [2002] EWCA 579 [2002] All ER (D) 422 (March).

All pre: CPR costs and the test of reasonableness was applied which had the same effect as proportionality.

South Coast Shipping Company Limited -v- Havant Borough Council [2002] NLJR 59.

Where a disputed issue of fact has to be decided on assessment, the receiving party may seek to rely on a privileged document lodged with the papers in support of the bill.
The Costs Judge may require the receiving party to produce to him any document which the Costs Judge considers necessary for the resolution of the issue but the Costs Judge has no power to direct the receiving party to disclose a privileged document. The Costs Judge can put the receiving party to his election whether to rely on the privileged document (in which case it must be shown to the paying party) or to abandon reliance on that document and prove his case by other means.

Anita Giambrone and Others -v- JMC Holiays [2002] EWHC 495 (QB) (22nd March, unreported).

Where generic letters involved the Costs Judge allowed two minutes for each.
Different mark ups can be allowed for different fee earners.

Amec Process and Energy Limited -v- Stork Engineers and Contractors BV (15th March 2002, unreported)

Time charges of Claimant’s own staff are properly claimable.

Admiral Management Services Limited -v- Para Protect Europe Limited [2002] EWHC 233 (Ch) [2002] All ER (D) 23 (March), 146 Sol Jo LB 93.

Nothing unjust in allowing costs of Claimant’s expert employees in investigating, formulating and presenting the claim against the Defendant.

Uhbi (t/a United Building and Plumbing Contractors) -v- Malkit Singh Kajla [2002] All ER (D) 265 (April) CA, EWCA Civ 628 26th April 2002.

The Claimant was assisted by a Director of a debt collecting company with a claim arising out of a building dispute. The fees of the debt collection company were claimed and allowed on summary assessment. On Appeal, it was held that the Claimant was not entitled to recover the fees under Part 48.6 (3) as the services provided were not “legal services” as such.
When assessing costs, the Court has no power to include an element for assistance given by a litigant in person by a friend with no legal qualifications.

Inline Logistics Limited -v- UCI Logistics Limited [2002] EWHC 519 (Ch) [2002] All ER (D) 435 (March) Times 2nd May 2002.

The Defendant took out ATE insurance shortly before Trial (taken out on 5th May 2000) and the Court held that the premium was recoverable. Claims Direct Test Cases [2002]
Judge Peter Hurst held that, of the £1,250 premium, excluding insurance premium tax of £62.50, £451.55 was allowed as the amount paid by Claims Direct to the Underwriters plus £110.00 for Claims Direct’s commission, £30.00 for insurance services and £29.58 tax. He rejected the Claimants’ requests for higher Claims Managers’ costs but accepted that the actual premiums were more than the £100 or £200 that the Defendants had claimed. In short, a sum of £621.13 was to be allowed in respect of the premium.

English -v- Emery Reimbold and Strick Limited [2002] EWCA Civ 605 [2002] 3 All ER 385 CA.

If a Costs Officer’s reasons for allowance or disallowance are not given expressly or are otherwise plain, an application for permission to Appeal on the ground of lack of reasons should be made.

R (on the Application of Factortame) -v- Secretary of State for Transport, Environment and the Regions [2002] EWCA Civ 932 [2002] All ER (D) 41 (July) Times 9th July 2002.

“to determine whether an agreement is champertous one must look at the facts of the particular case and consider whether the agreement might tempt the allegedly champertous maintainer for his personal gain to inflame the damages, to suppress evidence, to suborn witnesses or otherwise undermine the ends of justice”.
In the Factortame case the agreement was not unlawfully champertous because the financial situation of the Claimants was such that whoever provided the service was only going to be paid out of the recoveries in the litigation, the importance attached by public policy to access for justice had to be taken into account, the fact that the Claimants had already won on liability was relevant and the risk of the Claimants failing altogether was not great, the greater the share of the spoils that the provider of the services would receive then the greater the temptation to stray from the path of rectitude. The 8% fee was reasonable and operated as a cap on fees, not only against the Claimants but also inter partes, against the Defendant. It was also relevant that the Accountants, Grant Thornton, who were to receive the 8% fee, were members of a respectable profession and subject to regulation. The work done by Grant Thornton was transparent to the other side and subject to control by Solicitors, Counsel and experts.
The agreement was not a CFA within the meaning of Section 58 of the Courts and Legal Services Act 1990 as Grant Thornton were not providing advocacy or legal services, nor would the section apply to expert witnesses.
An expert witness might lawfully enter into a Contingency Fee Agreement but the Court would have a discretion to exclude such evidence and the Court would rarely agree to an expert being instructed on such terms.

Oliver Fisher (a firm) -v- Legal Services Commission [2002] EWHC 1017 (Admin) [2002] NLJR 792.

The Legal Services Commission has no right to recoup Solicitor’s profit costs already paid.

R (Punatar & Co) -v- Horseferry Road Magistrates’ Court [2002] EWHC 1196 (Admin) (24th May 2002, unreported), DC.

An application for a Representation Order was refused on the grounds that the charge which the client ultimately faced did not carry sentence of imprisonment and it was not in the interests of justice to grant representation.
It was held that the position had to be looked at not in the light of the ultimate charge but as at the time the Solicitor instructed Counsel to attend Court.

R -v- Walpole [2002] 1 Costs LR 199 SCCO

Where Solicitors failed to claim an enhancement at all when submitting their bill pursuant to the Legal Aid in Criminal and Care Proceedings (Costs) Regulations 1989, it was too late for them to do so at the re-determination stage.

R (Ecclestone) -v- Legal Aid Board, 5th October 2001 SCCO No. 8 of 2001.

Court disallowed pre-Certificate costs by relying on the Indemnity Principle in a case where the client was successful in obtaining an Order for Costs against the Legal Aid Board. The client was of limited means and had no retainer, not even Green Forms funding, for the pre-Certificate costs. The Court took the view that he would not have been liable to his Solicitor for the pre-Certificate costs and that, accordingly, these costs were not recoverable from the Legal Aid Board as inter partes costs.

Adams -v- MacInnes, 8th November 2001 SCCO No. 13 of 2001.

The Judge disallowed all care and conduct from commencement of instructions until date of Solicitor’s second client care letter which referred to care and conduct for the first time.

Costs Sharing Orders (Multi-Party Actions)

(i) Settlers If in any quarter a Claimant compromises his claim with a Defendant (or several Defendants) on terms which provide for the Defendant(s) to pay that Claimant’s costs, the Claimant shall be entitled to his individual costs and his several share of the common costs incurred by all of the Claimants up to the last day of that quarter.
(ii) Discontinuers If in any quarter a Claimant discontinues his claim against one or more of the Defendants or it is dismissed by Order of the Court whereby the Claimant is ordered to pay the Defendant’s costs then he will be liable for his individual costs up to the last day of that quarter and his liability for his share of the common costs of discontinuing Claimants will be determined at the same time as the Orders for common costs are made.

London Borough of Enfield -v- P [1996] FLR 629

Delay in lodging of a bill of costs (which included inter partes costs) resulted in the Court disallowing all of the profit costs. (4 year delay) delay held to be serious and inexcusable element of prejudice interest.

Toniello -v- Top Deck Ski Limited [1998] TLR 777

Partial disallowance of inter partes costs where short delay arose.

Home Assured Corporation plc reduction of 30% after Appeal.
Susan Dunnett -v- Railtrack plc [2002] EWCA Civ 303 22nd February 2002.

Refusal of successful party to consider Alternative Dispute Resolution led to no order as to costs being made.
The successful Defendants had refused to contemplate ADR at a stage before the costs of the Appeal began to flow.
The court did not consider it appropriate to take into account Part 36 Offers made by the successful Defendant.

Professional Information Technology Consultants Limited -v- Elizabeth Reynolds Jones [2002] EWCA Civ 2103 7th December 2001.

The Claimant substantially amended case at late stage of proceedings. Without such amendment, his case would not have succeeded. The Defendant was Ordered to pay 66% of the costs of the Claimant. Appeal of Defendant was refused.

Kinetics Technology -v- Cross Seas Shipping Case No. 1998 Folio 1530 Commercial and Admiralty Division 16th February 2001.

Claimant recovered a proportion of the amount claimed and only marginally beat a payment into Court. Court Ordered Claimant to pay 66% of Defendant’s costs from date of payment in.

In the Matter of the Queen On the Application of Wulfsohn -v- Legal Services Commission [2002] EWCA Civ 250 8th February 2002.

Successful litigant in person was entitled to payment for time expended on research and photocopying costs (subject to £9.25 per hour and two thirds cap.

Williams Corporate Finance plc -v- Gary Roy Holland and Others [2001] EWCA Civ 1526 22nd October 2001.

The Claimant lost its major claim and one of its minor claims and recovered only £2,500 on a cross accounting claim. On Appeal the Court took the view that it was wholly unjust that the First Defendant pay the Claimant’s costs of the action and Ordered that there be no Order for costs between the Claimant and First Defendant.

John Dickinson (t/a John Dickinson Equipment Finance) -v- Duncan Rushmer (t/a FJ Associates) Case No. Ch 2001/App/010461 Chancery Division 21st December 2001.

No good reason why the client care letter and the payment calculations should not be disclosed to the paying party the Court was not persuaded that these documents were privileged.

Bonni Louise Woods -v- Sheila Chaleff and Others 30th April 2002.

Failure by Solicitor and Counsel to comply with Regulations 3 and 4 of the CFA Regulations 1995 resulted in it being held that the Claimant was not entitled to recover costs from the Defendant.
The Defendant sought its costs of the issue. The Claimant argued that the Consent Order settling the substantive proceedings prevented the Court making an Order for costs against the Claimant as a clause of the Consent Order stated that “save as above, there be no further Order for costs and no previous Order for costs in the action shall be enforced”. It was held that this clause was no bar to the recovery of costs.

Paul Anthony Ashworth -v- Peterborough United Football Club Limited 10th June 2002.

Held reasonable for insurance premium to be taken out after the issue of proceedings as insurers would not have made insurance available at the outset as they required more detailed information to assess the risk.
Held that it was not unreasonable or unlawful for the Claimant to arrange for the cover for his own costs to be retrospective.
The Judge stated that had it been intended to prevent the cost of retrospective own costs cover from being recovered from the paying party, the Rules, Practice Directions and Regulations would have so provided.
In this case a premium of £45,937.50 was allowed in full.

Mostyn Neil Hamilton -v- Mohammed Al Fayed and Others [2002] EWCA Civ 665.

The Defendant sought to recover payment of his costs in successfully defending the Claimant’s action from a number of individuals who had financially backed the Claimant’s unsuccessful action. The application was refused
“The law must protect people who club together to support someone who would not otherwise be able to fund his case, so that such a person was not denied access to the Courts”.

Huck -v- Robson [2002] EWCA Civ 398. In this case the Claimant made an offer to settle his claim as a 95% to 5% split on liability in the Claimant’s favour. The offer was rejected by the Defendant but at Trial the Defendant was found to be 100% liable. The Judge refused the Claimant costs on the indemnity basis because, at Trial, liability would never be apportioned on a 95% to 5% basis and, accordingly, the Claimant’s offer had been unrealistic. It was held on Appeal that this point was irrelevant and that the costs of the Claimant should be assessed on the indemnity basis from date 21 days after the Claimant’s offer. Karen Jennifer Tilby -v- Perfect Pizza Limited 28th February 2002.

The Claimant entered into a CFA and took out A.E.I. Payment of the premium was not required until the conclusion of the case (settlement of the claim). After settlement of the claim the Defendant argued that the premium was not recoverable on the basis that the contract of insurance constituted an agreement for credit and was regulated by the Consumer Credit Act 1974 and that, as the statutory requirements under the 1974 Act had not been complied with the contract of insurance was not enforceable. The Claimant argued that the contract of insurance was not a credit agreement. A further issue was whether under the terms of the contract of insurance the claim was concluded when damages were paid or when detailed assessment was concluded.
It was held that the policy was not covered by the Consumer Credit Act 1974 or the Regulations under the Act and that the case was concluded upon conclusion of the detailed assessment process. Accordingly, the premium was payable by the Defendant.

Margaret Neave -v- Hugh George Andrew John Neave [2002] EWHC 966 (QB) 15th May 2002.

Dispute between mother and son regarding ownership of motor vehicles. On the issue of costs conduct was raised and the Court allowed the successful Claimant only one third of her costs and gave guidance in relation to those items that should be disallowed on assessment.
In this case, the conduct of both parties was held to be somewhat less than perfect!

In the Matter of Ryan Developments Limited [2002] EWHC 1121 (Ch) 9th May 2002.

A winding up petition was issued by the Judgment Creditor. The Company applied for an injunction to restrain advertising of the Petition and the application was granted. The Petition was dismissed with no Order as to costs. The Judgment Creditor then issued a second winding up petition in relation to the same debt. The Company agreed to pay the debt and the costs of the Petition. The Judgment Creditor sought to recover the costs of the application in the first winding up petition to restrain advertising. The Company argued that the Court had no jurisdiction to Order payment of those costs because that petition was dismissed with no Order as to costs.
The Court held that the wording of S51 (1) of the Supreme Court Act 1981 was wide enough to give the Court power to Order payment of costs from the earlier proceedings and Ordered the Company to pay the costs of the application in the earlier proceedings.

Excelsior Commercial and Industrial Holdings Limited -v- Salisbury Hamer Aspden and Johnson and Another [2002] EWCA Civ 879 12th June 2002.

A payment into Court of £100,000.00 was made by the Defendants but not accepted by the Claimant. The First Defendant subsequently successfully defended the proceedings. The Claimant recovered only £2.00 against the fifth Defendant. The Court of Appeal stated that it would be a rare case where the refusal of an offer would attract under Part 44 not merely an adverse Order for costs but an Order on an indemnity basis. The circumstances of this case resulted in an Order for costs on the indemnity basis being made (in respect of costs from date of Part 36 Offer).
The Judge took the view that this was a speculative claim by the Claimant which the Defendants had made various efforts/attempts to resolve outside the Court and that the Part 36 Offer was the “final straw”.

J -v- Owen Oyston [2002] EWHC 819 QB) 30th April 2002.

In this case indemnity for costs was granted by the Solicitor’s Indemnity Fund to the Claimant on an Inquiry as to what damages were suffered by the Defendant as a result of the granting of a Mareva Injunction. The Claimant was successful at the Inquiry. The Defendant objected to the costs of the Claimant. The Court found that the application by the Defendant for damages had no evidence to support it and was very nearly misconceived. It failed entirely. The Defendant alleged that there was a breach of the indemnity principle because the Claimant, herself, had no liability to pay costs. The court found that there would be a gross injustice if the Defendant ended up paying no costs. There were ample exceptional circumstances. The Court found that the Solicitor’s Indemnity Fund were the recovering party. The Court found that the attendance at the Hearing was suitable for the attention of a Partner.

United Building and Plumbing Contractors -v- Malkit Singh Kajla [2002] EWCA Civ 628 26th April 2002.

The Claimant was assisted by a Director of a debt collecting company in a claim arising out of a building dispute. The fees of the debt collection company were claimed and allowed on summary assessment. On Appeal, it was held that the Claimant was not entitled to recover the fees under Part 48.6(3). The services provided were not “legal services” as such.

Dr. Adu Seray-Wurie -v- The Mayor and Burgess of the London Borough of Hackney [2002] EWCA Civ 909 25th June 2002.

In this case a Default Costs Certificate was entered by the Claimant but, subsequently, set aside on application of the Defendant. Application by the Claimant for permission to Appeal was refused. The Claimant sought to re-open the Appeal. Guidance was given confirming that there was power of the Court of Appeal and High Court to do so and the circumstances when such power should be exercised.

Stephen John Bufton -v- James Philip Hill [2002] EWHC 977 (QB) 7th May 2002.

The Court found that a decision of a Deputy Costs Judge to disallow the Claimant’s costs of drafting a bill and attending at the assessment on the grounds of delay constituted a sufficient error of judgment as to require the Court to reverse it. The Court accepted that the Claimant’s Solicitors had delayed but attached weight to the fact that the Claimant had been penalised for this by being deprived of a substantial sum of interest, even for the period when he was not at fault.

Claims Direct Test Cases In the High Court of Justice, Supreme Court Costs Office 19th July 2002

Insurance Premium allowed at £621.13.

George English v- Wayne Clipson 5th August 2002

The CFA was explained to the Claimant by a representative of the Accident Group. It was held that the duties of the legal representative were non-delegable beyond members of the firm of Solicitors and it was held that there had been a breach of the Conditional Fee Agreement Regulations 2000 and that the Claimant had no right to an indemnity for payment of his costs by the Defendant.
J. Gould v- M. Armstrong and L.A. Armstrong [2002] EWCA 1159 23rd July 2002
Litigation involved relatively small sums with costs out of all proportion to the claim.
Claimant awarded costs of £2K and Defendants £5K on their counter claim.
On Appeal, it was Ordered that the Defendant pay half of the costs of the claim and counter-claim assessed at £9,247.80.
Defendants Appeal and the Costs Order made by the District Judge was reinstated.

Booth v- Britannia Hotels Ltd. [2002] EWCA Civ. 579 26th March 2002

Held that a Claimant who pursues an exaggerated claim or inflated claim must bear the consequences upon assessment of costs.

Andrew Mappourus v- Waldrons Solicitors [2002] EWCA Civ.842

Where Claimant awarded only minimal damages of £15.00 it was held that he had lost and costs were awarded in favour of the Defendants.

Hurst v- Leeming [2002] EWHC 1051 (Ch) 9th May 2002

The Defendant was found to be justified in refusing to agree to mediation and was entitled to his costs of successfully defending a claim.

David Jones Craig and others v- Railtrack Plc (In Railway Administration) & The Engineering Link Ltd [2002] EWHC 168 (QB) 18th February 2002.

Conduct of Defendant taken into account.
Defendants made no Part 36 Offers until reaching doors of Court.
Claimants beat the offers and obtained costs on indemnity basis in respect of the issue of liability on the grounds that it had taken the Defendants too long to resolve the issue of liability.

Mitchell and others v- Jones and others [2002] EWCA Civ. 997 12th July 2002

Part 36 Offers not effective if terms as to costs included.

Plymouth & Torbay Health Authority v- GWE Glanfield [2002] EWHC 82 (QB)

Where Defendant was the successful party after a Payment into Court had been made (where Claimant fails to beat the payment in) the Court held that the Defendant should only be denied his costs from the Payment in where exceptional grounds arose.

Thomas Halloran v- James Francis Delaney [2002] EWCA Civ 1258 6th September 2002

Where CFA entered into on or after 1st August 2001 and where case settled without recourse to proceedings, an uplift by way of success fee of 5% should be allowed upon Solicitor’s profit costs, including costs of costs only proceedings unless the particular circumstances of the case warranted a higher success fee.

Budgen v- Andrew Gardner Partnership [2002] EWCA Civ.1125 31st July 2002

Claimant successful, awarded £328,970.00 which beat Defendant’s Part 36 Payment into Court by £44,000.00. The Claimant failed on one issue which had taken up substantial part of the Trial.
The Defendant was Ordered to pay 75% of Claimant’s costs.
Held too draconian to Order Claimant to pay Defendant’s costs of failed issue as winner is always likely to fail on some points / issues raised.

Michelle Jane Stringer v- Simon Copley Kingston Upon Thames County Court 17th May 2000

Agency Fee relating to taking of statements and preparation of statements allowed in light of Smith Graham (a firm) v- The Lord Chancellor’s Department.
His Honour Judge Michael Cook concluded that there was no principle which precluded the fees of a medical agency being recoverable between the parties provided that the charge was reasonable and proportionate.

JM Ryan v- Tretol Group Ltd & Others - No. 10 of 2002 10th July 2002

Where Court satisfied from the evidence that no other firms in locality with sufficient expertise to take on a case it was reasonable to instruct London Solicitor.

Toyota Financial Services (UK) Plc Toyota (GB) Plc v- Shiv Kumar Sharma and Geeta Sharma 22nd August 2002

Involvement of Senior Partner, Solicitor and 15 other fee earners must have unnecessarily increased costs in a not too complex case concluded in less than 1 year.
Reference to Counsel should not have been necessary for Solicitors of such seniority involved.
Claimant awarded only half of the costs of detailed assessment and the costs if the case reduced to roughly 1/3 of those claimed against the First and Second Defendants.

McIlwraith v- McIlwraith & Stephens & Bolton No. 15 of 2002 24th July 2002

Where a beneficiary sought an Order for assessment of costs charged to an estate pursuant to 5.71(3) Solicitors Act 1974 more than 12 months after costs paid it was held that there was a residual discretion to order assessment if the Applicant could persuade the Court that it should do so in such circumstances.

Zeeland Navigation Co. Ltd. v- Banque Worms [2002] EWHC 1483 (Comm) 4th July 2002

Claimant Ordered to pay costs of amending claim even where it was successful on one of the amended parts of the claim.

Payshad Darougar v- Belcher t/a Park Street Garage [2002] EWCA Civ. 1262 25th July 2003

Where Claimant who was successful in claim failed in relation to an issue he was Ordered to pay the Defendant half of his costs after a certain date.

Malkinson v- Trim [2002] EWCA Civ.1273 13th September 2002

Where an action was brought against a Solicitor who defended it in person and obtained Judgment, that Solicitor was entitled, on assessment, to the same costs as if he had employed a Solicitor. This extends to where some or all work was carried out by one or more of his Partners.

Mark Edward Tichband v- B. Hurdman [2002] 24th October 2002

Held by the Court that where a CFA fails to comply with the requirements of S27 Access to Justice Act 1999 and Regulation 1(1)(d) CFA Regulations 2000 it is unenforceable and, as a consequence, the Claimant has no liability to his Solicitor in respect of costs in the same way that the Defendant has no liability to the Claimant for costs.

Bromley v- Marczynski and another [2002] EWCA. Civ.1453 21st October 2002

Defendants Ordered to pay costs of Publicly Funded Claimant on the Indemnity Basis.

Gertrude Clyde and others v- Thomson Holidays November 2002 Supreme Court Costs Office

When considering the question of proportionality the Master was satisfied that the Court must look at the total costs both pre and post CPR in carrying out a global approach.

Ralph Hume Garvy v- G William [2002] EWCA Civ. 1500 22nd October 2002

Court of Appeal held that a Solicitor’s Bill should include adequate description of the work done to justify the charge.

Sharratt v- London Central Bus Co (and other cases) Supreme Court Costs Office 27th November 2002

Argued that CFA unenforceable as information given by The Accident Group representative to a potential Client did not comply with Regulation 4 of the CFA Regulations 2000. Held that “legal representative” may be an individual, a firm or a recognised body and that it had to be accepted that delegation within the firm or to a recognised body was acceptable / permissible. The quality of the information required to be given remained to be tested. A CFA which did not satisfy all conditions was unenforceable and no costs would be recoverable under it. The recoverability of the insurance premium was not affected by this decision.

Fernback and others v- Hardback Ltd [2002] EWHC 1850 (Ch) 25th July 2002

Claimants Ordered to pay Defendant’s costs of Appeal Claimant had issued and then subsequently withdrawn.

Naskaris and another v- ANS Plc and others [2002] EWHC 1782 (Ch) 26th July 2002

Court directed Order for Costs on Indemnity Basis against Party because of its conduct such costs to be on the Indemnity Basis from the time the unreasonable behavior began.

Times Newspapers Ltd v- Keith Burstein [2002] EWCA Civ. 1739 28th November 2002

Court rejected Defendant’s view that Claimant was impecunious and that any agreement with his Solicitor to pay costs was a sham and that the Defendant’s costs should be on the Indemnity Basis.
Decision to reject Defendant’s case was confirmed by the Court of Appeal.

Dyson Ltd v- Hoover Ltd. [2002] EWHC 2229 (Ch) 21st October 2002

Claimant sought costs on Indemnity Basis after beating Defendant’s original Part 36 Offer on liability. Court held that it had a discretion and Ordered that costs be paid on the Standard Basis after Quantum issues settled when Claimant accepted Defendant’s Part 36 Payment into Court.
Court held that the appropriate date for commencement of interest was the mid point between commencement of the enquiry as to damages and the date when the money was taken out and that interest be at the same rate as received from damages and not the Judgment date.

Powell v- Herefordshire Health Authority [2002] EWCA Civ. 1786 27th November 2002

Discretion when considering date from which interest on costs may run.
CPR 44.3(6)(g) “The Orders which the Court may make under this rule include an Order that a Party pay interest on costs from or until a certain date, including a date for Judgment.”

British Midland Tool Ltd v- British Midland International Tooling Ltd and others [2002] EWHC 2144 (Ch) 8th October 2002

Court allowed Defendants to obtain release of some of the money they’d paid into Court for the purpose of paying their Lawyers on account so as to ensure fair Trial with proper representation.

Claims Direct Test Case Tranche 2 3rd January 2003

MLSS fee should be treated as a disbursement and can refer only to work done after the commencement of the Solicitor’s retainer (e.g. for obtaining of Statement and a cost of 2.1/2 hours is an appropriate starting point (@ £65.00 per hour)
The fee to Poole & Co., is a referral fee and not recoverable from the paying party.
The administration element of any fee charged by Mobile Doctors Ltd., is not recoverable from the paying party.

Leo Roland Higgs (A Child Suing by his mother and Litigation Friend, Maria Higgs) v- Camden & Islington Health Authority QB 2002 / APP 0370 [2003] EWHC 15(QB) 16th January 2003

£300.00 per hour allowed for Senior Partner in a Clinical Negligence case in London. Other rates not challenged by paying party included:

Assistant Solicitor (admitted January 1999) - £225.00 per hour
In-house nurse/midwife - £215.00 per hour
Experienced Legal Executive - £230.00 per hour
Trainee Solicitor/Paralegal - £150.00 per hour

Accepted that no longer a difference to be drawn regarding uplift between routine and non-routine work on between traveling and waiting and other kinds of work.
Appeal against charging rates was dismissed.
(Counsel (Leading) was allowed @ £350.00 per hour).

Dora May Pratt v- Daniel David Michael Bull [2002] 11th September 2002

In this case the Defendant sought disclosure of Claimant’s CFA.
The Court found that the Defendant has no reason to be suspicious of any non-conformity by the Claimant’s Solicitor with the CFA Regulations 2000 or to believe that the CFA was defective and so unenforceable. The Court found that the Defendant was simply pursuing policy and practice and seeking to exploit, for their own benefit, any inefficiency by the Solicitor in his conformity with the CFA Regulations.
The Court found that the scrutinising of CFA’s did not justify the assertion that there was an issue to be investigated by the Court and the Defendant was merely engaged in nothing more than a fishing expedition.
The Court referred to the principles set out in the case of Dickinson Equipment Finance v- Rushmer regarding the necessity for a party to raise a factual issue which is real and relevant and not a sham or fanciful dispute and found the Defendant to be asserting something which they had no reason to believe to be true but which they were merely hoping to find to be true and that seeking a windfall benefit in that way was entirely contrary to the philosophy of current practice.
The Court observed that Bills of Costs bear a certificate as to their accuracy which constitutes, among other things, an assertion that the claim is founded upon a valid agreement with the Client and that the Court should be slow to go behind the Certificate when no real or relevant evidence is available to support the challenge.

Claims Direct Test Cases

Appeal decision handed down on 12th February 2003 upheld the previous decisions regarding the Insurance Premium.

Leslie Kenneth Gliddon v- Lloyd Maunder Ltd Judgment 31.08.03 addendum 12.02.03.

The Indemnity Principle applied where work was conducted under a Collective Conditional Fee Agreement.

A B and others v- The Trustees of the National Children’s Home and Orphanage Registered SCCO Ref: PTH10204469

Lead Solicitor allowed higher hourly rates in a multi-party action than others who had worked on the case.
Concluded that insufficient information to decide that common generic work and home generic work should be remunerated at different rates.

Veronica Pirie v- Doreen Violet Ayling SCCO Ref: 0207520

An insurance premium of £2600.00 (based upon 20% of the damages awarded of £13,000.00) in an RTA case was not held to be champertous.
However, it was held by Chief Master Hurst to be unreasonable in amount on the basis that ATE Insurance with a greater limit of indemnity was available for approximately £400 including Insurance Premium Tax. In the absence of any submissions or evidence as to the availability of any other suitable ATE Insurance Policies a sum of £350.00 plus IPT of £17.50 (a total of £367.50) was allowed.

Sajida Ahmed v- P. Powell {BU01 1986, SCCO Ref: 021 0290)

Chief Master Hurst found that the representative of the firm of Costs Negotiators had no right of audience as his instructions had come directly from the Defendant’s insurers and not from qualified litigators (i.e. the Defendant’s Solicitors). Instructions to a Costs Draftsman/ Negotiator must come from the instructing Solicitors who have themselves been properly instructed.
The terms of payment pursuant to which the Costs Negotiator appeared at the Hearing were champertous.

P & O Ned Lloyd B V v- Utaniko Ltd and Aktieselskabet Dampskibssdelskabet Svendborg v- East West Corporation [2003] Case No. A3/2002/0637 EWCA Civ.174

A part 36 Offer in relation to settlement of the proceedings did not extend to a subsequent Appeal. Where a Claimant has succeeded at Trial, and then on Appeal, he was not entitled to indemnity costs of the Appeal proceedings pursuant to the original Part 36 Offer having not made an offer relating to the costs of the Appeal proceedings. The Claimant must make a further offer in the Appeal proceedings if he is to obtain the protection of Part 36.21 in the Appeal proceedings.

Rowlands and others v- Bryn Alyn Community (Holdings) Ltd (in liquidation) and Royal and Sun Alliance Plc. Case No. B3/2001/2476 EWCA Civ.383

The Court of Appeal felt disinclined to use its discretion to recognise a pre-Trial Part 36 Offer unless a fresh Part 36 Offer was made during the Appeal proceedings.

Robert Crosbie v- Stephen Munroe and The Motor Insurers’ Bureau [2003] EWCA Civ.350

Where a claim has been settled prior to issue of proceedings and Part 8 costs only proceedings had been issued to recover the Claimant’s costs, the Claimant accepted the Defendants Part 47.19 Offer made 7 months earlier and then sought costs of the Part 8 proceedings. The Court held that the acceptance of the Part 47.19 Offer should relate to all costs and disallowed the costs of the Part 8 Proceedings. The decision was overturned on Appeal. *The costs of the Proceedings were defined as …”costs leading up to the disposal of the substantive claim. They are the proceedings which gave rise to the assessment proceedings and the assessment proceedings cover the whole period of negotiations about the amount of costs payable through the Part 8 proceedings to the ultimate disposal of those proceedings, whether by agreement or Court Order. Imran Sarwar v- Muhammad Alam. Case No. 2002/1617 SCCO Ref. 0208020 11th February 2003.

The Claimant was injured in a minor accident and settled for £2250.00 damages. The Claimant’s Bill amounted to £255,745.30.
The Insurance Premium was claimed at £62,500.00 and the Claimant was covered by a CFA. The Schedule indicated that the premium was subject to 50% no claims bonus. The Court held that, although the premium was high, it was unlikely that the Claimant could have obtained an alternative quote at a lower * rate they had tried, unsuccessfully, to do so. Premium allowed.
The success fee was claimed at 100%. The Claimant argued that a substantial success fee was appropriate because of the uncertainties and difficulties of the case. The chances of success were put by Counsel at no more than 50%.
* The case was finely balanced. The Court allowed the success Fee at 100%.
The Claimant’s Solicitor had claimed enhanced hourly charging rates well above those routinely allowed in the area.
The Court reduced the hourly charging rate from £350.00 per hour to £215.00 per hour for the work in the Court of Appeal.

K. v- Lord Chancellor (2203) [2003] EWHC 12 (QB) QBD 17.01.2003.

Court held that “K”, a Barrister, was not entitled to recover the cost of work done by him in conducting his own defence in criminal proceedings. The Code of Conduct for the Bar precluding “K” from appearing in a professional capacity in proceedings in which he was involved or interested personally. He could not therefore recover a Brief fee but was entitled to an indemnity for costs in respect of work carried out prior to or during the Hearing which involved the exercise of his legal expertise and training which would, otherwise, have been carried out by Counsel.
Linda Woodings (1), Pauline Abdalla (2), Lesley Noakes (3), Ranjit Kaur (4) and Kathleen Riley (5) v- British Telecommunications Plc (2003)
Despite the claim settling for less than £1000.00 the Court Ordered that the Claims for Costs be assessed on the Standard Basis as:
(1) Liability had neither been admitted or denied and the most likely outcome, had the claims been contested, was that the Court would have made an Order that they be tried together on the issue of liability and the cases would have been allocated to the multi-track because of the technical and medical evidence required, and..
(2) The Defendant failed to cooperate by seeking to find an economical solution to the Claimants’ problem. Considerable expense could have been spared if the Defendant had dealt with the claims in a more rational manner. The Defendants had acted unreasonably in this respect and, therefore, the Claimants’ claims for costs would not be confined to the small claims track.

C. v- M. (2003) [2003] EWHC 250 (FAM)

Court held that a successful Claimant could not recover a success fee after 1st April 2000 if, in those proceedings, he had entered into a CFA prior to that date.

Lynn Elizabeth Howarth v- Phillip Green (2001) QBD 25th May 2001.

The Court held that costs were recoverable in respect of letters to the Legal Services Commission responding to Show Cause Letters and successfully appealing against discharge of the Certificate. The Court also allowed the fee of Counsel relating to his Advice on the point relating to recoverability of costs relating to responding to Show Cause Letters from the Legal Services Commission.

Jean F. Jones v- University of Warwick (2003) CA (Lord Woolf LCJ, Hale LJ, Latham LJ) 4TH February 2003.

The Defendant was allowed to use video evidence of the Claimant in her home obtained without her knowledge after the person taking the film had obtained access to the Claimant’s home by deception. It was, however, made clear that the Defendant’s conduct was improper and the Defendant was Ordered to pay the costs of the proceedings to resolve the issue of admissibility of evidence.

Donald McCreery v- Massey Plastic Fabrications Ltd: John Robert Ward v- Vickers Engineering Plc and BAE Systems Marine Ltd (2003) QBD Manchester Dist. Reg. 23rd January 2003.

The Court held that CFA’s and Risk Assessments were disclosable as relevant in costs proceedings and inspection was permitted.
Once the substantive litigation was concluded there was no longer any justification for protection by a claim for privilege of such documents upon which the claim for costs was founded.

Islam v- Ali (2003) CA 26th March 2003

The Judge’s Costs Order was set aside on the basis that he had failed to have due regard to the fact that the Defendant had won in principle, given the large sum claimed by the Claimant (and the modest sum awarded to her) and to the wide issues between the Parties which were ultimately decided in the Defendant’s favour. No Order for Costs.
Arrowfield Services Ltd v- B.P. Collins (2003) Ch.D. 26th March 2003.
Where there had been an agreement between Solicitor and Client that there would be a detailed assessment of the Solicitor’s costs, this was held to be as powerful a “special circumstance” as it was possible to conceive for ordering a detailed assessment under S.70 (3) Solicitors Act 1974. Although the Client’s delay in issuing his Application was inexplicable it was found that it had not caused prejudice to the Solicitor and the Court exercised its discretion and Ordered a detailed assessment.
Perry Press t/a Pereds v- David Chipperfield and Evelyn Stern (2003) CA 25th March 2003.
Held that a Judge was entitled to conclude that an offer made during proceedings was not clear and concise in order for him to take it into account.

The Accident Group Test Cases, Tranche 2 issued 25th March 1st April 2003.

The sums payable for insurance by a Claimant under the TAG Scheme (£840.00 and £997.50) are not properly to be regarded as a premium within the meaning of S.29 of the Access to Justice Act 1999.
The amounts properly recoverable as premiums from the paying parties are:
For the year 2000 - £450.00 incl. IPT
For the year 2001 - Lloyds £480.00 incl. IPT
NIG £425.00 incl. IPT.
The figure of 2001 Lloyds may alter if an adjustment has to be made for the swing premium. If the figure for the swing premium is such that the total premium is outside the bracket of what is reasonable and proportionate, it will not be recoverable.
The payment of £310.00 plus VAT to AIL which is passed on to TAG is a referral fee and no part of this fee is recoverable from the paying party.

Boyd & Hutchinson v- Jennifer Joseph [2003] EWHC 413 (Ch) Ch.D. 14th February 2003.

Although a qualified Solicitor, the Claimant fell to be treated as a litigant in person for the purpose of determining the hourly rate that she was entitled to charge for work carried out when acting on her own behalf in costs proceedings.

Voice and Script International v- Alghafar (2003) CA 8th May 2003.

The omission to allocate a case to the Small Claims Track did not preclude the Court from considering whether it were reasonable to make an assessment in accordance with the costs regime for that track.

Q v- J , M and H [2003] EWHC 251 (Fam) 3rd March 2003.

Disallowing a substantial Bill of Costs in full was too harsh a penalty for delay on the Part of the Claimant when the cause of the delay was neglect rather than intention and the Defendants had failed to cooperate when they could easily have done so.

Hollins v- Russell, Tichbond v- Hurdman, Dunn v- Ward, Pratt v- Bull, Worth v- McKenna, Sharratt v- London Bus Co. Ltd and other cases. (The Accident Group Test Cases Hearing 14th April 2003. Judgment del. 9th May 2003).

CFA’s should be disclosed for the purpose of costs proceedings in which a success fee is claimed. If the CFA contains confidential information relating to other proceedings, it may be suitably retracted before disclosure takes place. Attendance notes and other correspondence should not ordinarily be disclosed but the Judge may require the disclosure of this kind of material if a genuine issue is raised. A genuine issue is one in which there is a real chance that the CFA is unenforceable as a result of failure to satisfy the applicable conditions.
A CFA will only be unenforceable if, in the circumstances of the particular case, the conditions applicable to it by virtue of S.58 have not been sufficiently complied with in the light of their statutory purposes. Costs Judges should consider whether the particular departure from a regulation or requirement in S.58, either on its own or in conjunction with any other such departure in the case, had a materially adverse effect either upon the protection afforded to the Client or upon the proper administration of justice.
If the Court considers that as between Solicitor and Client the Client would have just cause for complaint because some requirement introduced for his protection was not satisfied, or that the CFA offends public policy (e.g. breach of S.58(3)(b), the CFA will be unenforceable, and the indemnity principle will operate in favour of the paying party. Even then the Claimant should recover the disbursements and any ATE premium. A CFA should only be declared unenforceable if the breach does matter and the Client could have relied on it successfully against his Solicitor.

Mary Abrew v- Tesco Stores Limited. Hearing 17th April 2003.

ATE premium reduced from £790.00 to £400.00 in a low quantum claim (£3500.00) where the Claimant’s Solicitor had taken out cover for £100,000.00 which was deemed to be too high.
Success fee allowed at 50% (slipping accident in supermarket).

Tara Lee Smith v- Havering Hospitals NHS Trust (Judgment No. 03/A/328 10th April 2003.)

The Claimant first instructed her Solicitor in connection with a Clinical Negligence claim on 28th November 1997. However, following refusal of Public Funding she entered into a CFA on 19th June 2000. Her Solicitors then obtained medical records and a number of medical reports / psychiatric report, the last of which was obtained on 15th December 2000.
A letter of claim was sent to the Defendant on 19th December 2000 but proceedings had already been issued on 4th September 2000 because the limitation period was due to expire on 18th September 2000. In order to acknowledge the fact that the Defendant had not been given 3 months by way of protocol period to carry out investigations into the claim prior to issue, the Claimant agreed to a number of extensions of time for the filing of the Defence.
A Defence was filed, denying liability and the matter was listed for a two day Hearing on 7th August 2002.
Liability was finally admitted in February 2002 and Judgment was entered by consent. The claim settled for £30,000.00.
The Defendant subsequently applied for an Order that
(a) the success fee of 100% be disallowed or reduced, and
(b) all or part of the Claimant’s costs be disallowed for failure to comply with the Pre-Action Protocol.
The Court HELD that no sanction would be justified, that the Claimant was entitled to have funding arrangements in place before instructing experts and obtaining medical records and that Claimant could not have been held to have been in breach of the Protocol because of the limitation problem. The extensions gave the Defence ample time to decide whether or not to Defend the claim and as liability not admitted until much later as it was unlikely that the claim would have settled prior to issue.

Bellamy v- Central Sheffield University (2003) CA 2nd July 2003.

Where a Judge had made no Order for costs in relation to a Wasted Costs Application, the Order that should have been considered was for the unsuccessful party to pay the costs of the successful party.

John Reginald Douglas Orwin v- British Coal Corporation and others (2003) EWHC 757 (Ch) Ch.D. 10th April 2003.

Counsel’s Brief fee for a strike out Application was reduced from £15500.00 to £5000.00 on the basis that the time spent preparing for the Hearing was “extraordinarily high and not reasonable or justified”. The costs were not proportionate to the matters in issue.

Eric Albert Wagstaff v- Florence Gladys Colls (2003) EWCA CIV.469 2nd April 2003.

Proceedings were still extant after the making of a Tomlin Order containing a stay of the proceedings by Consent and a Wasted Costs Application could be made against the Defendant’s Solicitors without the need to lift the stay.
It was not necessary to lift the stay in order to pursue the Wasted Costs Application.

GW v- RW (2003) 18th March 2003.

Where both parties had made Calderbank Offers, Rule 2.69(b) Family Proceedings Rules 1991, S1 1991/1247 became unworkable and a safe starting point in a high value Divorce case where the assets exceeded the aggregate of the Parties’ needs, was that there should be no Order as to Costs unless unreasonableness could be demonstrated.
Niru Battery Manufacturing Co. and Bank Sepah Iran v- Milestone Trading Ltd., Maritime Freight Services Ltd., Ali Akbar Mahdavi, Credit Agricole Indosue, and SGS UK Ltd. (2003) QBD Commercial Court 8th May 2003.
Where Judgment had been entered against two Defendants jointly and severally and one had satisfied the full amount of the Judgment it was entitled to be subrogated to the rights of the Claimant under the Judgment so as to enable it to recover from the other Defendant the whole amount it had paid in satisfaction of the claim and half of the costs it had paid.

Dearling v- Foregate Developments (Chester) Ltd (2003) 9th June 2003.

Where a building dispute had been settled without Trial by payment by the Defendant to the Claimant, in the absence of a good reason to make any other Order, the correct Order for Costs was to make no Order.

Raiffeisen Zentral Bank Osterreich AG v- Cross Seas Shipping Ltd., Vipool Vora, Citi Holdings Corporation, Ajay Shah and Hemant Sanghvi (2003). EWHC1831 (comm.) 13th June 2003.

Under S.51 Supreme Court Act 1981, the Court was empowered to determine who was funding the litigation, including persons not party to the proceedings, and to Order a Party to disclose the identity of the same.

Ali Reza Delta Transport Co. Ltd. v- United Arab Shipping Co. SAAG (2003) EWCA.CIV.811 17th June 2003.

The Claimant succeeded on Appeal in obtaining an award of damages increased to US $ 227,400. The Claimants had made 3 Part 36 Offers. They did better than their first and second offers made before Trial and the Court of Appeal awarded the Claimant costs of the Trial on an indemnity basis and interest at 3% over the prime rate.
The third offer, in March 2003, provided for the Claimant offering to accept US $ 227,400 plus the costs of the Trial on the indemnity basis but waiving any interest uplift on both damages and costs.
The Claimant sought costs of the Appeal on the Indemnity Basis under CPR 36.21 because the Defendant had been held liable for more than the Claimant’s proposed in the Offer of March 2003 or had secured a Judgment which was more advantageous than the Offer or, alternatively, the Court’s discretion should be exercised in their favour under CPR 44.3 on the basis that the result, on Appeal, had matched their offer. The Court held (1) that the concession offered by the Claimant related solely to interest over the ordinary rate. The Court could award uplift interest only if CPR 36.21 was satisfied. Whilst the provisions of Part 36 contemplated that a Part 36 Offer might include an offer as to interest it could not have been contemplated that uplift interest should be any part of the offer to be taken into account (Note Decision in Mitchell v- James (2003) 2 AU ER 1064 that terms regarding costs were not intended to be included in Part 36 Offers. (2) the Court has a wide discretion under CPR 44.3 and, whils the fact that the Claimants offered to accept what they were eventually awarded was an important factor, so was the fact that the offer was made on Appeal, the Court below having awarded a lesser sum, and the Defendant had not acted unreasonably in resisting the Appeal, nor was the Defendant’s conduct improper.
Applications for indemnity costs refused costs of the Appeal on the Standard Basis.

William King v- Andrew Daltray (2203) CA 4th June 2003.

On an Application for permission to Appeal by an unsuccessful Defendant, the Court’s imposition of a condition that the Respondent / Claimant be awarded his costs, whether taken or lost was overturned and substituted for one of “No Order as to Costs” on the Appeal.

Martin James Halley v- The Law Society (2003) CA 13th June 2003.

Following a successful cross-Appeal, the Defendant was awarded all of its costs of the litigation.

Branch Empire Ltd. v- Coote (2003): Elmcroft Developments Ltd. v- Coote (2003) Ch.D 16th June 2003.

Where the Applicants had been granted permission to Appeal conditional upon making payments into Court, as the first Appellant had failed to satisfy the Court that it was unable to fund its legal costs of the Appeal, the condition regarding the payment into Court would stand. The payment into Court to be made by the Second Appellant was reduced to reflect its estimated legal fees on Appeal.

Royal Bank of Canada v- Secretary of State for Defence [2003] EWHC 1841 Ch.D 14th May 2003.

Where a Claimant indicated a willingness to mediate a claim for costs and the Defendant refused, the Defendant had not abided by a formal pledge given on behalf of all government departments to settle by alternative dispute resolution (ADR) wherever possible and was not entitled to costs.

Warner Home Video (UK) Ltd. and another v- Beach and others [2003] EWHC 8118 Ch.D 20th May 2003.

An Application for Judgment in default of Defence was deemed to be a straightforward Application and the costs sought by the Claimants were reduced to reflect proportionality.

Alan Valentine v- (1) Kevin Allen, (2) Simon John Nash, (3) Alison Nash (2003) CA 29th July 2003.

The fact that the Applicant’s offer of mediation was refused by the Respondents did not detract from the usual order that the unsuccessful Appellant was to pay the successful Respondents’ costs in resisting the Appeal since it was clear that the Respondents had made real efforts to settle the dispute.

Alan John Norris v- Penelope Catherine Norris and Warren George Haskins v- Lesley Erica Haskins (2003) [2003] EWCA CIV.1084 CA 28th July 2003.

In Ancillary Relief proceedings the correct approach to costs as a matter of principle had to be governed by CPR 44.3 together with the Family Proceedings Rules 1991 S1 1991/1247 in their current form.

Rigby Mansions Ltd. v- Ortwein (2003) Ch.D 28th July 2003.

The Court held that the Costs Judge had misdirected himself by applying a misstated version of the text in Lownds v- Secretary of State (2002) EWCA CIV.365 and should have assessed whether the overall costs were proportionate and then proceeded to assess proportionality and reasonableness on an item by item basis.

Stringer v- Copley 17th May 2002 (Earlier Report not in ALCD July).

His Honour Judge Michael Cook concluded that there is no principle precluding the fees of a medical agency being recoverable between the parties, provided it is demonstrated that their charges do not exceed the reasonable and proportionate costs of the work if it had been done by Solicitors.
The fees of medical support agencies could also be treated as though the work had been done by the Solicitor and charged accordingly.