Civil Costs Case Law Update – May 2024
Leonard v Leonard [2024] EWHC 979 (Ch) Joanna Smith J – 29 Apr 2024. Costs in a disputed probate action where the court had found in favour the claimants in respect of a 2005 Will as against a 2015 Will, but for the defendants as regards two gifts. The issue was the applicability of the common law exceptions (in probate cases only) to the general rule under CPR 44.2 that costs should follow the event. The first exception (whether the litigation had been caused by the testator or a beneficiary, thereby justifying payment of the unsuccessful party’s costs out of the estate) was not engaged: the testator had not caused the litigation. The second exception (whether the circumstances including the knowledge of the opposing party, had led reasonably to an investigation of the matter, thereby justifying no order as to costs), was engaged for a period up to a mediation where because until then, the defendants had reasonably undertaken an investigative process. As to a Part 36 offer, it was not unjust to disapply the CPR 36.17(4) benefits as the Claimants’ offer had been “genuine” under the rule. However, it was not safe to make a percentage based order under CPR 44.2(6)(a) or (c)given the disparity of dispute about the level of costs incurred regarding the Will as opposed to the gifts. An issue based costs order under CPR 44.2(6)(f) was appropriate.
Northamber PLC v Genee World Ltd & Ors (Rev1) Lewison, Arnold, Phillips LJJ [2024] EWCA Civ 428 1 May 2024. When deciding the costs of an action concerning an Exclusivity Agreement and unlawful conspiracy, , the court below had ordered DII to pay 70% of the costs the Claimant’s claim against him, and that the Claimant pay 80% of D III’s costs. The Claimant appealed because DI and DII had been silent in the face of an offer to mediate and had breached an order requiring them to explain that in a witness statement their failure to agree to mediation. That justified a modest, but not insignificant, costs penalty by increasing the Claimant’s costs recovery by an additional 5% to 75%. Appeal allowed to that extent.
Farol Holdings Ltd v Clydesdale Bank Plc [2024] EWHC 1044 (Ch) Zacaroli J- 8 May 2024. The court undertook a thorough review of the case law relating to the award of indemnity basis costs where there had been conduct out of the norm. An additional factor which pointed towards an award of indemnity costs was where large-scale and expensive litigation was pursued in circumstances calculated to exert commercial pressure on the defendants. That had accurately described the circumstances of the case where part of that strategy had been to publicise widely, serious allegations, including of fraud, against the Banks in order to attract more customers or former customers to join the litigation.
Hensley v Morris Law Ltd [2024] EWHC 1101 (SCCO) Master Rowley -10 May 2024. Application for delivery of a bill under s.68 Solicitors Act 1974. The bill delivered had sought a success fee over and above the basic charges and had not made any attempt to provide information which would have made it a complete bill such as to identify what costs had been paid, by whom and when, and in what way (eg by direct payment). As such, the bill was not a compliant bill and an order was made for delivery of a final statute bill.
Scenic International Group Ltd (In Provisional Liquidation) v Adenaike (Costs) [2024] EWHC 1178 (Ch) Roth J -16 May 2024. Where a party had won an application and a summary assessment was appropriate under Practice Direction 44, para 9.2(b), but the successful party wanted a detailed assessment and had not filed a costs schedule to save costs because it was unlikely that the losing party would ever pay them, that was a mistaken approach. The court therefore ordered a schedule to be served with the costs to be assessed on the papers. That schedule had subsequently sought £36,000 which was disproportionate: £23,235 was a reasonable sum to allow.
Francois v London Borough of Waltham Forest [2024] EWHC 1162 (KB) Yip J -16 May 2024. Counsel’s fees. Following a detailed assessment during which the court had allowed fees for the claimant’s counsel of £894 against a claim for £3,200, the Master below had been correct to disallow fees for the period during which counsel inadvertently had had no practising certificate. An unregistered barrister could not act as a barrister and would be treated no differently to any other professional such as a debt collector, tax adviser or foreign lawyer, all of whose services had been found not to qualify for recovery under CPR 45.5(3)(b).
Re O (Appeal: Costs) [2024] EWHC 1163 (Fam) Ms Justice Henke – 17 May 2024
In Family proceedings, there was no good reason to depart from the general practice of making no order for costs in cases involving children. The Respondent’s litigation conduct could not be characterised as unreasonable or reprehensible. Having instructed Counsel, the Respondent had taken proactive steps to narrow the issues and reach a compromise. No order as to costs was the correct order.
Thakkar v 1 Ioan Mican [2024] EWCA Civ 552 Carr LCJ, Asplin, Coulson LJJ- 20 May 2024. The court dismissed an appeal against an order made below refusing to order the defendant to pay indemnity costs in a personal injury action. Allegations of fundamental dishonesty against the claimant had failed but that there was no presumption or reversal of the ordinary burden of proof where that happened. Whether an award should be made for indemnity costs depended on the circumstances of the particular case, and the judge retained a complete and unfettered discretion. Failed allegations of dishonesty might be the starting point for any consideration of those circumstances, but that did not reverse the burden of proof or put the burden on the paying party to explain why indemnity costs were not appropriate.
Tonstate Group Ltd (In Liquidation) v Wojakovski [2024] EWHC 1196 (Ch) Adam Johnson J 20 May 2024. Where there had been no proper justification for adding a firm of solicitors as a third party to an application, it was appropriate to award the firm their costs. The Claimants had issued an Application seeking a declaration that the Respondent had been validly served with the sealed Order by serving it on the solicitors after they been dis-instructed. The firm was entitled to recover their costs, summarily assessed in the sum of £45,000.
