Civil Costs Case Law Update – April 2023
K/S Mountain Invest v Ducat Maritime Ltd [2023] EWHC 939 (Comm) HHJ Keyser 24 March 2023. HHJ Keyser gave the defendant relief from sanctions under CPR 3.9 where no costs budget had been filed under CPR 3.12. The breach had been serious (14 days late with the budget) and there had been no good reason for the failure. However, the justice of the matter required relief to be granted : the application had been prompt, the budgets agreed with exchange being delayed only by one day, and a substantial uncontested budget would otherwise have been wiped out. Relief granted with the defendant to pay the costs.
LONESTAR COMMUNICATIONS CORPORATION LLC v KAYE and ORANGE [2023] EWHC 732 (Comm) 30 March 2023. In heavy commercial litigation, Foxton J dealt with the costs of the action following judgment at trial, where there had been offers “without prejudice save as to costs”. The claimant had won $5.4m, but this had been 10% of the total sought, albeit without having advanced a dishonestly exaggerated claim. Orange would pay 40% of the costs to reflect that, subject to its WPSATC offer which would be taken into account as it was effective. Other defendants would pay 60%, but from the date that the offer should have been accepted, Orange would be paid its costs by Lonestar as to 100%. Note : the costs order is very complicated. A detailed summary is at paragraph 39 of the judgment.
West Hertfordshire Hospitals NHS Trust v AX [2023] EWCOP 11 – 5 April 2023. Vikram Sachdeva KC refused to make a costs order against the defendant NHS Trust following its urgent out-of-hours application for a declaration of incapacity in respect of a pregnant woman. Whilst the Trust had failed to follow the guidance in NHS Trust v FG [2014] EWCOP 302014 and its conduct amounted to substandard practice, it had not been so significantly unreasonable or indicative of a blatant disregard for the processes of the Mental Capacity Act 2005 as to reach the threshold where a costs order was justified. It was important to follow the guidance in FG, but a breach of it did not automatically justify a costs order.
Mate v Mate [2023] EWHC 806 (Ch) Andrew Sutcliffe KC- 5 April 2023. The fact that a claimant’s Part 36 offer had not been addressed to the first defendant, had not rendered it invalid so far as the second and third defendants had been concerned. Nor had the fact that the offer failed to provide for 21 days for acceptance : a judicial pre-reading day was not the first day of trial for calculating the period. They could have accepted the offer and then sought a contribution from the first defendant, and there was nothing unjust in permitting the claimant to recover the CPR 36.17(4) benefits including an additional sum of £57,625.
Manek v 360 Wam Ltd [2023] EWHC 985 (Comm) 28 April 2023. Simon Rainey KC allowed the successful claimants their costs of defeating the defendants’ application to set aside an order of Foxton J permitting the service of “New” proceedings out of the jurisdiction. However, on summary assessment of their solicitors’ bill, guideline hourly expense rates were appropriate without uplift. The justification put forward (complex, substantial, high value litigation) could be made equally in many other jurisdiction challenges involving fraud and much higher value claims.
