Civil Costs Case Law Update – January 2023
TRX v Southampton Football Club [2022] EWHC 3392 (KB) Stacey J 25 November 2022. Stacey J. Where solicitors had done three months work before making a conditional fee agreement with the claimant, there was a presumption that the claimant would be liable to pay the solicitors for their legal services. Since the defendant had failed to rebut that presumption by proving that there was a contract that in no circumstances could the solicitors look to the client for costs until the CFA had been signed, there had been no infringement of the indemnity principle. Appeal disallowing the pre-CFA costs allowed.
DeutscheBank SA v Sebastian Holdings Inc [2023] EWHC 9 (SCCO) 22 December 2022. In a detailed assessment which had lasted 97 days and had resulted in the reduction of a £52m bill by 32%, it was appropriate to depart from the default rule under CPR 47.20 that the receiving party should have its costs. The paying party would pay 70%. The assessment had been extended due (in part) to the solicitors’ incomplete files, the lack of attendance notes and by vague and composite entries in the solicitors’ recording systems.
Robinson v Liverpool University Hospitals NHS Trust [2023] EWHC 21 (KB) 11 January 2023. Overturning the decision of the recorder below, Sweeting J reversed her order that a dental practitioner who had given expert evidence in a clinical negligence claim against a hospital surgeon, should pay wasted costs of £50,543.85. Contrary to the recorder’s comments, the expert had not stepped outside the boundary of his expertise and although some criticism could be levelled against his evidence, the expert had not demonstrated a flagrant or reckless disregard of an expert’s duty to the court that justified such a sanction against him.
Excalibur & Keswick Groundworks Ltd v McDonald [2023] EWCA Civ 18 [2023] 17 January 2023 . In an action in which the claimant had discontinued his personal injury claim under CPR 38 immediately before the start of the trial, it was not appropriate to remove qualified one-way costs shifting (QOCS) protection on an application by the defendant to set aside the Notice of Discontinuance under CPR 38.4. There had to be powerful reasons to set aside such a notice and what the claimant had not done was to discontinue the proceedings with the object of preventing a fair trial. It was of note that the defendant had not alleged that the claimant was or might be fundamentally dishonest.
Simon Csoka KC v The Lord Chancellor [2023] EWHC 54 (KB) Mr Justice Choudhury 17 January 2023. A barrister’s appeal under the Criminal Legal Aid (Remuneration) Regulations 2013 reg.30 against a costs judge’s assessment of his claim for fees in respect of two murder trials. Counsel’s fee should be assessed by reference to the band in the Advocates’ Graduated Fee Scheme banding document into which the count of murder would fall, not the higher band reserved for indictments charging the killing of two or more persons. Appeal dismissed.
Wilkins v Serco Ltd [2023] EWHC 61 (KB) Heather Williams J 25 January 2023
In proceedings for damages for false imprisonment which had been settled on terms of a payment of £3,000 with the basis on which the claimant’s costs would be assessed having been left open, the court below had been correct to determine that allocation would have been to the fast track. It followed that the defendant’s contention that small claims track costs should apply, failed.
