Civil Costs Case Law Update – January 2024
Lazarichev v Lyndov [2024] EWHC 8 (Ch) 9 January 2024 – HHJ Keyser KC. Security for costs was refused where the claimant, a Belarusian national, was living in Poland, a State bound by the Hague Convention on Choice of Court Agreements 2005. “Resident” in CPR 25.13(2)(a) was to be given its ordinary meaning, that a person was resident in the place where they dwelled permanently or for a considerable period where they had their settled or usual abode. Defendant’s appeal against the order below refusing security dismissed.
COMMERCIAL AND INTERREGIONAL CARD CLAIMS I LIMITED v Mastercard Inc [2024] CAT 3 17 January 2024 – Ben Tideswell. The Proposed Class Representatives (the “PCRs”) sought to bring opt-in and opt-out collective proceedings against card scheme operators, in relation to interchange fees, and more specifically alleged overcharges which, on their case, have been suffered by merchant retailers. In June 2023, the CAT declined to grant the PCRs’ applications for collective proceedings orders and instead stayed the proceedings to allow them to seek to remedy defects in their applications. Shortly afterwards in PACCR, the Supreme Court held that litigation funding agreements (“LFAs”) fell within the definition of “damages based agreements” for the purposes of section 58AA Courts and Legal Services Act 1990, and were unenforceable (1) in opt-out proceedings pursuant to section 47C Competition Act 1998 and (2) in any proceedings unless they complied with section 58AA and the Damages Based Agreement Regulations 2013. In consequence, the PCRs indicated their intention to enter into revised funding arrangements, with the parties agreeing that the CAT should consider any challenges to the enforceability in advance of the date set for the hearing of the revised CPO applications in spring 2024. Held- The opt-out and opt-in arrangements (including ATE policies) had effectively become aligned and submissions advanced by the Proposed Defendants as to what were called the “Proceeds Point” and the “Cap Point” were rejected. Contingency elements in the Priorities Agreements were not contrary to public policy. The funding arrangements for the proposed collective proceedings were enforceable for the purposes of section 58AA.
Kenig v Thomson Snell & Passmore LLP [2024] EWCA Civ 15 18 January 2024 Coulson, Stuart-Smith, Nugee LJJ. In proceedings for detailed assessment of eight solicitors’ bills approved by a trustee, on an application by beneficiaries under s.71 Solicitors Act 1974, a distinction was to be drawn between s.71(1) and s.71(3). The Court in Tim Martin Interiors v Akin Gump had been wrong to assume to the contrary. Beneficiaries had an independent interest that went beyond that of the trustee, with there being a greater need to protect them because of the ability of the trustee, (who owed them a fiduciary duty), to pay fees out of the deceased’s estate. Accordingly, the costs judge below had been right to draw a distinction between s.71(1) and s71(3) and to order detailed assessment of the bills, having found “special circumstances” existed for doing so: the solicitors had provided estimated charges between £10,000 and £15,000, but the bills had exceeded £54,000.
Clark v Adams [2024] EWHC 62 (KB) 19 January 2024- Soole J. Qualified Costs Shifting applied where the causes of action lay in assault and battery and the damages for personal injury had been limited to £1 for vindicatory purposes. There was no basis for the court to impose any qualification by reference to the amount of damages claimed, or to require a claimant to pursue substantial damages to obtain QOCS protection.
