Civil Costs Case Law Update – June 2023
ABC v Derbyshire County Council [2023] EWHC 1337 (KB) 6 June 2023. Following the dismissal of the Claimants’ claims under the Human Rights Act, the Court considered whether they had the benefit of QOCS protection under section II of CPR 44. They contended that although the case was a “mixed claim” for the purposes of the QOCS regime, it was, “in the round”, a personal injury case and the Court should therefore not grant permission under CPR 44.16(2)(b) for any costs order to be enforced against them. Hill J held that the “conduct” factors relied on by the Defendants did not constitute “exceptional features” of the litigation that should sound in costs against the Claimants, save for the expert evidence of a Mr Barratt, which had been relied on to support all of the non-personal injury claims. An appropriate level of enforcement was 5% of the Defendants’ costs.
Simpsons (Preston) Ltd v MS Amlin Underwriting Ltd [2023] EWHC 1370 (KB) HHJ Pearce -7 June. The claimants applied to vary a Costs Management Order under CPR 3.15A to increase their costs budget for disclosure after finding further documents contained on two previously unknown network drives. That application failed. Whilst the discovery of the drives was likely to affect the scope and the cost of the disclosure process and could properly be called a “development”, on the facts that development had not been “significant”. It followed that the Claimants had failed to discharge the burden of proving a significant development to justify a revision to the budget.
Horn v Knott [2023] EWHC 1351 (Comm) -7 June 2023. Foxton J determined the appropriate level of contribution between the respondents to various joint and several costs orders, which fairly reflected how central the role of particular respondents had been in the litigation.
MGS v University Hospitals Bristol and Weston NHS Foundation Trust [2023] EWHC 1547 (KB) Dexter Dias KC -16 June. Where the defendant had not accepted the claimant’s Part 36 offer of £9.3m made on 17th October 2022 until 4 May 2023, on the proper interpretation of Part 36, interest was payable. The rate was not 8%, but the special investment account rate for the period outside the 21-day time limit specified in the offer.
Hilden Developments Ltd v Phillips Auctioneers Ltd [2023] EWHC 1506 (KB) Geraint Webb KC- 20 June. It was appropriate to make non-party costs order against an individual in circumstances where he could fairly be described as the “real party” to the litigation and where it was in the interests of justice to do so.
Yieldpoint Stable Value Fund, LP v Kimura Commodity Trade Finance Fund Ltd [2023] EWHC 1512 (Comm) 20 June 2023. Stephen Houseman KC. A Part 36 offer of 99% of the principal claim was not a genuine attempt to settle the action within the meaning of Part 36.17(5)(e). Therefore, it was unjust to give the claimant the post-judgment enhancements under CPR 36.17(4). The 1% discount had been meaningless.
Hadley v Przybylo [2023] EWHC 1392 (KB)- 22 June 2023. Master McCloud. In a personal injury claim, costs arising from fee earners regularly attending case management meetings with medical professionals and meetings with Court of Protection deputies, could not be included in a costs budget as such costs could not be said to materially progress the case. Permission to appeal given.
Tabbitt v Clark [2023] EWCA Civ 744 – Lewison, Peter Jackson, Nicola Davies LJJ – 26 June. The claimant had accepted a Part 36 offer in a personal injury claim out of time. As CPR 44.14 then stood, the post-offer costs due to the defendant could not be enforced against the damages. An application that a declaration be included in the order giving effect to the acceptance of the offer on the basis of that rule was refused (the amendment to CPR 44.14 on 6 April 2023 now permits enforcement). The QOCS rules themselves dealt with the question of enforceability and a judge was not bound to replicate the effect of the rules by means of a declaratory judgment, at least where there was no dispute about what they meant.
