Monthly Legal Costs Update – January 2025
Here, in Kain Knight Costs Lawyers’ regular monthly legal costs update, we focus on those cases which we believe are likely to have a practical relevance for its members. We welcome feedback and if there is an area, topic or case you would like us to address, please let us know
We start with a chilling case in the Senior Courts Office where Master James undertook a detailed assessment of a between-the-parties bill of costs which had claimed £258,583.78. – see Kapoor v Johal [2024] EWHC 2853 (SCCO). Assessing the bill down to nil, the Judge found that there were numerous examples of misconduct within CPR 44.11 by the receiving party’s solicitors, including that the attendance notes were not contemporaneous. Indeed, she said: “The impression given is that the file has been supplemented with scores if not hundreds of attendance notes created more recently. I cannot overstate how serious that is. The complete file has been retained at the SCCO as evidence should the SRA wish to see it.” Awarding the costs of assessment to the paying party on the indemnity basis, the judge continued that the solicitor could not shift responsibility to the costs draftsman, and that even if there had been no misconduct, the proper charges should only have been £40,000 to £45,000 plus reasonable disbursements. Not a good day in court!
Next a foray into the world of criminal costs. In IPE Marble Arch Ltd v Moran [2024] EWHC 2913 (KB), Yip J held that the High Court did not have jurisdiction to award a defendant his costs of defending the prosecution’s unsuccessful application for leave to prefer a voluntary bill of indictment against him. The application had been a “criminal cause” for the purpose of the Senior Courts Act 1981 Pt II s.51(5) and, absent any exceptional circumstances falling within the very narrow category established by Murphy v Media Protection Services Ltd [2013] 1 Costs L.R. 16, and subsequent decisions, costs in relation to criminal proceedings were recoverable only to the extent permissible by the statutory criminal costs regime. There was no power to make the costs order sought under the criminal regime, and no other residual inherent power had been identified, so no costs could be awarded.
Back to civil costs under the Civil Procedure Rules and to Part 36. In Grierson v Grierson [2024] EWHC 3048 (Ch), Joanne Wicks KC had conducted a trial involving a substantial will which the family had contested. Giving judgment on costs, she held that although an offer made by the claimant under Part 36 had not been for a specific sum of money, it had offered terms that were more favourable to the defendant than the eventual result at trial. It followed that the CPR 36.17(4) benefits were engaged, and that as there was nothing unjust in awarding them to the claimant, they should apply, not only because of the rule, but also due to the defendant’s litigation conduct. In addition, the judge ordered the defendant to make a payment on account of 80% of the costs sought.
Next an ingenious attempt to defeat a claim for costs on the grounds of a failure to serve a cancellation notice under Regulation 13 Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. In 4VVVv Spence [2024] EWHC 3035 (Comm), it had been the paying party’s case that failure to serve the appropriate notice timeously had meant that by operation of the indemnity principle, the paying party’s liability to pay any costs, had been reduced to nil. Foxton J disagreed: the cancellation period had ended after 12 months and 14 days under regulation 31(1), at which point a contract became binding, even if the information was not provided to the consumer before it was entered into, or, indeed, if it was never provided.
Finally, before the courts break up for Christmas, a case about Litigant in Person (LIP) costs. In Tendring District Council v Secretary of State for Work and Pensions [2024] EWCA Civ 1518, following the dismissal of Tendring’s appeal (see [2024] EWCA Civ 1509], the LIP had sought her costs in the sum of £10,115.00. That had been represented on the basis of 520 hours of work at the rate of £19 an hour. It was Tendring’s case that there should be no order for costs. It said that the LIP’s gross overcharging represented unreasonable or improper conduct because a claim for 520 hours equated to 65, eight-hour days or three working months. Such a claim was fanciful. The Court of Appeal disagreed that the conduct of the appellate proceedings could fairly be described as unreasonable or improper such as to deprive the LIP of any order for costs. The hours claimed were high and did require scrutiny and assessment by a costs judge, but as Tendring had lost its appeal, she was entitled to her costs, to be assessed if agreement could not reached.
As always, these are a selection of the principal recent cases which are likely to be of use to practitioners and if any further information is required, please contact either Nick McDonnell or Colin Campbell at Nick.McDonnell@kain-knight.co.uk or Colin.Campbell@kain-knight.co.uk
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