Civil Costs Case Law Update – December 2024
IPE Marble v Moran [2024] EWHC 2913 (KB- 15 November 2024. No jurisdiction reposed in the High Court to award a defendant his costs of defending the prosecution’s unsuccessful application for leave to prefer a voluntary bill of indictment against him. Yip J found that the application had been a “criminal cause” for the purpose of the Senior Courts Act 1981 Pt II s.51(5) and, absent any exceptional circumstances falling within the very narrow category established by Murphy v Media Protection Services Ltd [2013] 1 Costs L.R. 16, and subsequent decisions, costs in relation to criminal proceedings were recoverable only to the extent permissible by the statutory criminal costs regime. Accordingly, there was no power to make the costs order sought under the criminal regime, and no other residual inherent power had been identified, so no costs could be awarded to the defendant.
Tendring District Council v Secretary of State for Work and Pensions [2024] EWCA Civ 1518 – 9 December. The Court of Appeal dealt with Litigant in person (LIP) costs. Following the dismissal of Tendring’s appeal (see [2024] EWCA Civ 1509], the LIP had sought her costs in the sum of £10,115.00, calculated on the basis of 520 hours of work at the LIP rate of £19 an hour. Tendring contended that there should be no order for costs because the LIP’s gross overcharging represented unreasonable or improper conduct: a claim for 520 hours equated to 65, eight-hour days or three working months. As such, the claim was fanciful. Held per Nicola Davies and Stuart-Smith LJJ Cobb J. The conduct of the appellate proceedings could not fairly be described as unreasonable or improper such as to deprive the LIP of any order for costs. The hours claimed were high and did require scrutiny and assessment by a costs judge, but as Tendring had lost its appeal, she was entitled to her costs, to be assessed if agreement could not be reached.
Ferko v Ealing Magistrates Court [2024] EWHC 3297 (Admin) 18 December. On a contested appeal against a decision of the Magistrates that there was no case for the landlord respondents to answer under s.82 Environment Protection Act 1982, the appellant, Mr Ferko (F) had succeeded on all issues. Before Sweeting J, the argument was whether there should be a summary or detailed assessment of F’s costs which were payable by the respondents. The judge held that a summary assessment was appropriate as the hearing had not exceeded one day. Dealing with the proportionality of those costs was not simply about reducing the amount claimed to the lowest possible figure. The court needed to strike a balance to ensure that the receiving party was properly compensated for their reasonable costs, but also by protecting the paying party from excessive and disproportionate costs. The justice of the situation lay in reducing the overall sum claimed in respect of an application to amend pleadings by 20% (to £13,521.6), and by reducing the overall sum claimed for the substantive hearing by one third (to £24,893.22).
Hirachand v Hirachand [2024] UKSC 43 18 December. Per Lord Richards, the Court of Appeal (see [2021] Costs LR 1243) had been wrong to include in an award of £138,918 for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975, an allowance of £16,750 for a success fee payable under a party’s conditional fee agreement with her solicitors. Claims under the 1975 Act were civil proceedings subject to the Civil Procedure Rules, even if brought in the Family Division of the High Court (see CPR r 57.15) and were subject to the costs regime contained in the CPR. That meant that in a usual case, the losing party would be ordered to pay the successful party’s costs. If the court ordered the claimant’s costs to be paid by an unsuccessful defendant with such costs to be assessed on the standard basis, it would make a nonsense of the rules about costs if the successful party could recover by way of the substantive award, the amount by which the assessed costs fell short of the costs payable on a solicitor and client basis. The provisions of Part 36 would be virtually unworkable in accordance with their purpose of achieving settlements, if success fees were recoverable as part of the judgment sum, Even if the defendant knew that the claimant had agreed to pay a success fee and knew the agreed percentage of the base costs, the claimant’s liability to pay the success fee would be dependent on a result which would not be known “until the case has been decided” and its amount will be contingent on the amount of the base costs incurred up to and including the trial. Appeal allowed.
