Civil Costs Case Law Update September 2023
Kirkwood v Thelem Assurances [2023] Scot CS CSIH 3, 19 July, the court of Scotland did not allow the costs of English solicitors acting for a Scottish client in the Scottish courts (who had been injured in France). This involved £250,223.35 (the English element of the fees) not being recovered, the court holding that it was not reasonable for the proper conduct of the cause for the pursuer to have instructed them.
Merricks v Mastercard Inc [2023] CAT 53, 9 August. In an action described by Roth J as “a claim of gigantic size”, following the determination of four applications, both sides sought summary assessments of their costs. Each claimed for their grade A and C fee earners, £825-£870 and £450-478 respectively. Roth J allowed £665.60 and £451 per hour. The rates charged had been more than 60% above the guideline hourly rates and were unreasonable. Taking a broad brush, an uplift of 30% was appropriate.
Colicci v Grinberg (re costs) [2023] EWHC 2075 (Ch), 11 August, the judge held that an offer to pay £150,000 for shares was an offer to compromise that issue. No reasonable person would have seen it as an offer to pay £150,000 by way of a contribution to the defendant’s costs as the defendant had contended. Moreover, the claimants had done better than their own Part 36 offer and it was not unjust that the benefits under CPR 36.17(4) should be awarded.
S Scenna v Chen [2023] EWHC 2173 (Ch) 30 August. On a summary assessment on the indemnity basis involving schedules of £242,000 and £160,000, rates were sought at A grade of between £550-£668 for London 1. The judge reduced them, allowing only the guideline hourly rate for London 2 of £373. That, with other disallowances, reduced the costs to £157,000 and £110,000.
Trading OU v Louis Dreyfus Co Suisse [2023] EWHC 2160 (Comm) 25 August. Bright J gave guidance on how a respondent should approach costs on an application for permission to appeal pursuant to the Arbitration Act 1996 s.69. A respondent wishing to oppose an application for permission to appeal under s.69 was obliged to incur costs because CPR PD 62 para.12.6 and para.12.7 required the service of a respondent’s notice and a skeleton argument of up to 15 pages.
ClientEarth v Shell PLC [2023] EWHC 2182 (Ch). 31 August. Trower J addressed the costs of an application for permission to commence a derivative claim. Following an oral renewal hearing at which the court had refused the claimant’s application for permission to continue with it, the judge held that it had been appropriate and proportionate for the company to have attended the hearing, and so should have the costs of the entire action.
South Tees Development Corporation v PD Teesport Limited [2023] EWHC 2270 (Ch) 15 September. Trower J. The successful defendant on an appeal should have the costs. Although a costs management order had been made and the costs of the appeal had not been included in its costs budget, and no application to vary it under CPR 3.15A had been made, Trower J held that (1) the costs of any appeal are not to be included in the form of costs budget mandated by the CPR, (2) the defendant was not under any obligation to vary its precedent H (3) the fact it did not do so did not have any effect on the way in which the court’s discretion ought to be exercised when considering the appropriate cost order to be made in relation to the appeal.
