Civil Costs Case Law Update – February 2023
Kenig v Thomson Snell and Passmore LLP [2023] EWHC 181 (SCCO) 1 Feb 2023. Master Brown distinguished the much criticised decision in Tim Martin Interiors Ltd v Akin Gump [2012] 3 Costs LR 376 that the rights of beneficiaries to obtain an assessment of executors’ solicitors’ bills under s.71 Solicitors Act 1974, are very limited. In his judgment, the Master held that there were “special circumstances” under the Act to order an assessment of bills of £54,410 in relation to an estate worth £2,881,000 where there were “ serious concerns as to substantial overcharging”. Note, however, that the decision is not binding having been given at Costs Judge’s level.
Holman Fenwick Willan LLP v Samady [2023] EWHC 125 (KB) 6 February 2023. The solicitors had sued for their fees under a contract of indemnity given by the defendant in return for a discount. Against the defendant’s submission that the Solicitors Act 1974 Act applied, Freedman J held that the claim fell outside its terms because the action had been brought under a contract rather than pursuant to the unpaid invoices. In these circumstances, the court below had been correct to find that there was no real prospect of a defence, so summary judgment was given to the solicitors.
Mundy -v- TUI UK Ltd [2023] EWHC 385 (CH) Collins-Rice J 23 February 2023. The Claimant recovered damages at trial of £3,700 to compensate her for infections contracted through contaminated food on a holiday provided by the Defendant. A pre-trial offer under Part 36 of £4,000 had been made by the Defendant which sought its costs from the date that the offer should have been accepted. The judge agreed, rejecting the Claimant’s contention that as she had made a Part 36 offer to split liability at 90/10 and obtained judgment at trial on a full liability basis, that that meant that she had “won”. However, there could be no set-off of those costs due to Ho v Adeleken.
Easygroup Limited v Easy Live (Services) Limited, [2023] EWHC 240 (Ch) 6 February 2023. Sir Anthony Mannwas required to decide the appropriate order for costs in circumstances where each side claimed to have won in an action relating to trademark infringement in respect of a number of signs. He held that although each party had succeeded on elements of the claim, the Defendants could be more realistically viewed as the winners based on the failure of the Claimant to achieve its main objectives. Order for the Claimant to pay 35% of the Defendant’s costs.
Camberley Group Plc v Foster [2023] EWHC 248 (KB) 8 February 2023. Following the trial, John Kimbell KC dealt with the costs in complicated proceedings involving a dispute between a family-owned group of companies and three former employees of companies in the group. The claims included breach of fiduciary duty, breach of contract, unlawful interference with contractual relations, misappropriation of funds and unjust enrichment. The outcomes left no alternative but to make an issue-based costs order, with some costs to be on the indemnity basis due to the Defendants’ conduct having been out of the norm.
Paper Mache Tiger Limited v Lee Mathews Workroom Pty Ltd (in Liquidation) [2023] EWHC 338 (Comm) 17 February 2023. The court declined to make a wasted costs order against the sole director and shareholder of the defendant company against which the claimant was proving in the liquidation for a judgment of £718,798 and £280,000 costs. Nothing which had been said or done had amounted to serious impropriety or bad faith, and the director had not abused the proceedings for her own benefit. It was not a case where justice required her to pay the Claimant’s costs of the litigation under s.51 SCA 1981.
