Civil Costs Case Law Update – December 2023

Posted 3 January 2024

HRH PRINCESS DEEMA BINT SULTAN BIN ABDULAZIZ AL SAUD v Gibbs [2023] EWHC 3111 (Comm) – 5 December. Andrew Baker J. The claimant, being in breach of unless orders to pay the defendant £598,955.21 and US$2,076,117 in an action in which, notwithstanding the consequential debarring order, the court retained a residual discretion to allow him some measure of participation on the merits at trial (on quantum), his security for costs application under CPR 25 in the sum of £5m within 7 days, was dismissed. The application was plainly brought, and the defendant sought to pursue it, as a means, indirectly, to defeat the claimant’s claims, which he was already debarred from doing.

H v GH [2023] EWFC 235 – 7 December. Simon Colton KC. Whether the Guideline Hourly Expense Rates apply in family proceedings (FP). Strictly, the rates might not, but there were good reasons for using them. It was undesirable that the benefits of GHR (consistency, proportionality, and predictability) should be lost in the assessment of costs in FP.

Otto v INNER MONGOLIA HAPPY LAMB CATERING MANAGEMENT COMPANY LIMITED [2023] EWHC 3151 (Ch) – 8 December. HHJ Matthew rejected an argument when undertaking a summary assessment on the papers, that “home working” should have a bearing on the figure to allow. Guideline Hourly Expense Rates were applied.

Hope Capital Ltd & Anor v Alexander Reece Thomson LLP [2023] EWHC 3157 (KB). 8 December. Constable J rejected an argument that the successful defendant’s standard costs after winning the case, and having beaten its own Part 36 offer, should be assessed disregarding its costs budget, as would happen on an indemnity basis assessment. That would be a “back door” to seeking an indemnity basis order. Only the costs judge could decide whether there should be a departure from the last approved or agreed budget under CPR 3.18.

Commissioner of Police of the Metropolis v Malik [2023] EWHC 3213 (Admin) – 14 December. Warby LJ, McGowan J. The Ealing Magistrates had been wrong to order the Commissioner to pay costs of £17,487 plus VAT. In breach of the indemnity principle, the claimant’s solicitors had claimed £32,161.92 in their costs schedule because they had a made an express agreement to limit their charges to less than 25% of that sum. The costs order was quashed. In addition, the court accepted the solicitors’ unreserved apology for breaching the indemnity principle and decided that no further action was needed.

Morton v Morton [2023] EWHC 3223 (Ch) – 15 December. HHJ Halliwell. The court declined to award the offerors of a successful and effective Part 36 offer the benefits under CPR 36.17(4). The offer had been made at a very late stage of the proceedings, several months after judgment following trial and on the eve of the taking of accounts. It related to the whole of the proceedings and not merely to the taking of the accounts and was plainly tactical. It would be unjust for the offeree to pay the additional benefits under the rule.

Sellars v Simkins [2023] EWHC 3296 (Costs) – 20 December 2023. Master Gordon-Saker. Where the client had terminated a Conditional Fee Agreement (CFA) before the case had concluded by a win (or loss), the solicitors’ charges were not limited to the costs recovered from the tortfeasor in the underlying proceedings. Although the CFA was “Lite”, meaning that on a win, the limitation applied, that was not the case where the client had terminated the agreement, and the firm had asked for its base costs. Accordingly (subject to a s.70 Solicitors Act assessment) there was no cap on what the firm could charge its former client.