Civil Costs Case Law Update – September 2024
Cancrie Investments Ltd v Haider [2024] EWHC 2302 (Comm) 9 September 2024. Following the dismissal of the defendant’s application for summary judgment striking out the claim for a worldwide freezing injunction, Nigel Cooper KC held that the ordinary approach to costs in relation to such injunctions was that the court should make an order for costs following the hearing of a continuation application while reserving the costs of the original without notice application. It followed that whilst the latter would be reserved, the defendant would pay the former to be assessed if not agreed, with a payment on account of £209,000.
Magee v Crocker [2024] EWHC 2353 (Ch) 19 September. HHJ Cawson dealt with trial costs where there had been an application by the claimants to amend the claim form, particulars of claim and amended reply and counterclaim, to allege that there had been a novation. He ordered that the costs of and occasioned by the amendments should be awarded to the defendant, to be assessed if not agreed. Having considered the authorities where there had been costs of claim and counterclaim, the judge further ordered that he should pay (1) the claimants’ costs of the claim and Part 20 counterclaim as to 90%, with a payment on account of £400,000 and (2) the fourth party’s costs of the Part 20 claim against him as to 100%, with a payment on account of £385,723.
Deng v Zhang [2024] EWHC 2392 (KB) Hill J 20 September. In an action for damages for breach of data protection rights, breach of confidence, misuse of private information and malicious falsehood, the claimant had failed to file a cost budget in time but had obtained relief from sanctions. The defendant had served a notice of appeal arguing that the court had been misled about the date of service of the budget. Notice of the hearing date for the appeal had been sent out by the court, but the claimant failed to notice the listing and did not attend the appeal hearing when the appeal was allowed and the claimant’s budget was confined to court fees. Further delay and default followed in the conduct of the application to set aside the appeal decision, which culminated in a witness statement being filed the day before the hearing itself. Hill J held that the claimant’s explanation of solicitor’s “overwork” was not an acceptable reason for default. Further the initial failure to notice that an appeal was listed was not a good reason. She dismissed the application to set aside the appeal judgment.
Asertis v Bloch [2024] EWHC 2393 (Ch) 24 September. On an application for security for costs under CPR 25, ICC Judge Mullen considered whether an After-the-Event insurance policy offered as security afforded sufficient protection to the defendant. Following that consideration, he found that five features of the policy undermined the sufficiency of the protection offered. They included (i) provisions entitling the insurer to withdraw cover if it believed that the claim lacked reasonable prospects of success; (ii) limits on the scope of cover in relation to interim or incurred costs; (iii) redaction of relevant policy terms; (iv) potential for the policy to be avoided for fraud; and (v) an absence of direct benefits conferred on the defendant. It followed, that the policy could not be regarded as providing the defendant with sufficient protection and a payment into was appropriate instead.
Williams-Henry v Associated British Ports [2024] EWHC 2415 (KB) 24 September. Where the claimant’s claim had been dismissed for fundamental dishonesty, but had the action succeeded on an honest basis, she would have recovered £600,000, no wasted costs order (WCO), would be made against her former solicitors. Ritchie J held that exposing claimants’ solicitors and barristers to expensive WCO proceedings for failing to terminate retainers after fundamental dishonesty had been pleaded (and to an extent substantiated by video surveillance or disclosure or other evidence) could potentially fetter access to justice for claimants who, whilst not wholly honest, had a good core claim and at least some prospect of defeating the assertion. The fact that the solicitors were brave enough not to “dump” the Claimant spoke of the firm’s humanity and bravery, not of their negligence or unreasonableness.
