Civil Costs Case Law Update – October 2024
Elphike v Times Media Ltd [2024] EWHC 2595 (KB)- 14 October. To avoid the prospect of long, expensive detailed assessment proceedings with counsel and Costs Lawyers occupying perhaps several days, at a cost comparable with that of many trials, Master McCloud ordered that it would be remiss of a judge not to order ADR before the proceedings were begun. It followed that before the newspaper, against whom the claimant had discontinued his action with an 80% costs liability, would not be able to have those costs until the parties had engaged in ADR.
Mainwaring v Bailey [2024] EWHC 2614 (Fam) 16 October. On a rolled up hearing for permission to appeal and for the appeal to follow, Henke J noted that the Family Division of the High Court sitting as an appeal court has the power to make an order for costs when sitting as an appeal court by reason of FPR r.30.11(2)(e). Further, on hearing an appeal, the appeal court has all the powers of the lower court under r.30.11(1). Here, the appeal had been hopeless and been dismissed, but it had not been motivated by a personal purpose or undertaken for tactical advantage. It followed that standard, not indemnity costs would apply. There were summarily assessed at £16,192.48 inclusive of VAT payable by the appellant to the respondent.
Menzies v Oakwood Solicitors [2024] UKSC 34 23 October. The Supreme Court reversed the decision of the Court of Appeal (see [2023] Costs LR 1983. The Solicitors Act 1974 s.70 was concerned with the proper amount to be charged by solicitors by way of costs, having regard to whether they had been reasonably incurred and were reasonable in amount. “Payment” within the meaning of s.70(4) could not occur without there being an opportunity for the client to consider the detail of the bill of costs and to decide whether and to what extent it should be paid. It was not sufficient merely for a retainer between the solicitor and client to specify the client’s consent to deduction of the bill from the client’s account, and payment could not be said to have taken place when that deduction was made for the purposes of the 12-month time limit under s.70(4) to start running. As the solicitors had deducted the balance due under the bill from damages recovered without the client having had an opportunity to consider the charges, there had been no payment, so his time for applying for assessment had not started to run, contrary to the decision of the Court of Appeal below.
