Civil Costs Case Law Update – May 2023
Ikin v Shawbrook Bank Ltd [2023] EWHC 1075 (Costs) Senior Costs Judge Gordon-Saker, 5 May 2023. In Detailed Assessment proceedings, 40% of the receiving parties’ assessed or agreed costs were disallowed for misconduct under CPR 44.11 The bills had been intentionally misleading in that time had been claimed for work which was not done and for which there was nothing that could have led to a reasonable inference that it had been done. The solicitors had acted both improperly and unreasonably and it was appropriate also to order them to pay 75% of the paying defendant’s costs of the assessment on the indemnity basis.
SMOUT v WULFRUN HOTELS LIMITED [2023] EWHC 1128 (KB) Ritchie J, 10 May 2023. Although the court allowed the defendant’s appeal on interest, meaning that the claimant had not beaten his own Part 36 offer, so that the benefits under CPR 36.17(4) were not payable after all, Ritchie J made no order as to the costs of the appeal. The defendant had been abusive to the claimant and to his lawyers in the conduct of the claim, and the defendant’s representative had continued to make rude and abusive comments about the claimant’s solicitor which had been unfair and inappropriate. For those reasons, no order for costs on the appeal was appropriate.
Steenbok Newco 10 Sarl v Formal Holdings Ltd [2023] EWHC 1112 (Comm) Christopher Hancock KC, 11 May 2023. The court allowed in part an application for an uplift in the amount of security for costs to be awarded to the Defendants. The costs would be allowed on the standard basis as being the correct starting point on an application for security, with the percentage on a broad brush basis being 60%. It was also necessary to ask where there were changes in the assumptions, whether they were reasonable. The costs of the application were awarded to the Defendants, summarily assessed at £65,000, in respect of which a small reduction was justified because the hearing would have been concluded more rapidly had it been argued more economically.
Forster v Reynolds Porter Chamberlain LLP [2023] EWHC 1150 (Ch) Fancourt J, 15 May 2023 In an action brought by a former client against her one-time Solicitors for damages for alleged breach of duty relating to loss of opportunity in which the Solicitors had acted under a Conditional Fee Agreement with a 100% uplift, the firm had failed adequately to keep the Claimant informed of her costs which had resulted in a bill exceeding £5.3 million. The fact that the claim was funded under a CFA did not mean costs were not a matter for the client, as there remained a risk to the Claimant of being liable to pay the shortfall between chargeable fees and disbursements and the costs recovered from the Opponents. Whilst that was a breach of duty, it had caused no loss. However, the claimant had suffered a loss of chance due to a conflict between the solicitors and funders who had made a loan to the claimant, and judgment was entered for £192,500.
BES Commercial Electricity Ltd v Cheshire West and Chester Council [2022] EWHC 3333 (KB) Freedman J, published 25 May 2023. In proceedings in which the Defendant sought an order varying its budget upwards in respect of the PTR, Trial Preparation, Trial phases and Trial on the grounds that there had been good reason to depart from its Precedent T due to significant developments in the litigation subsequent to the budgeting process, those were all matters for the costs judge. Nor was it appropriate to provide a narrative which could give indications to the costs judge. Such matters were for argument to be developed in much greater detail at detailed assessment.
