Manchester Messenger – August 2023
In the August 2023 edition of The Messenger; the monthly magazine of The Manchester Law Society, Nick McDonnell and Colin Campbell provide a legal costs update.
We start with a brace of Qualified Costs Shifting (QOCS) judgments. In ABC v Derbyshire County Council [2023] EWHC 1337 (KB), following the dismissal of the Claimants’ claims under the Human Rights Act, the Court considered whether they had the benefit of QOCS protection under section II of CPR 44. They contended that although the case was “mixed,” it was, “in the round”, a personal injury case, and the Court should therefore not grant permission under CPR 44.16(2)(b) for any costs order to be enforced against them. Hill J agreed. The “conduct” factors relied on by the Defendants did not constitute “exceptional features” of the litigation, save for the evidence of an expert, which had been relied on to support all of the non-personal injury claims. An appropriate level of permitted enforcement against damages was 5% of the Defendants’ costs.
In Tabbitt v Clark [2023] EWCA Civ 744, the claimant had accepted a Part 36 offer in a personal injury claim out of time. As CPR 44.14 then stood, the post offer costs due to the defendant could not be enforced against the damages. The claimant wanted a declaration in the order giving effect to the acceptance of the offer on the basis of that rule, and not the amended CPR 44.14 in force from 6 April 2023 which now permits enforcement. The Court of Appeal declined. The QOCS rules themselves dealt with the question of enforceability and a judge was not bound to replicate the effect of the rules by means of a declaratory judgment.
Next a trio of Part 36 judgments. In Yieldpoint Stable Value Fund, LP v Kimura Commodity Trade Finance Fund Ltd [2023] EWHC 1512 (Comm), the court ruled that a Part 36 offer of 99% of the principal claim was not a genuine attempt to settle the action within the meaning of Part 36.17(5)(e). It followed that it was unjust to give the claimant the post-judgment enhancements under CPR 36.17(4). The 1% discount had been meaningless, so the claimant was denied the additional sum, indemnity costs and any enhanced interest.
In Sleaford Building Services Ltd v Isoplus Piping Systems Ltd [2023] EWHC 1643 (TCC), the court reached the same conclusion. An offer to accept 99.99% of the claim being a reduction of £350 was not a genuine offer, so it was unjust to permit recovery of the additional CPR 36.17(4) benefits.
Finally, in MGS v University Hospitals Bristol and Weston NHS Foundation Trust [2023] EWHC 1547 (KB), the court dealt with interest where the defendant had not accepted the claimant’s Part 36 offer of £9.3m made on 17 October 2022 until 4 May 2023. On the proper interpretation of Part 36, interest was payable. However, the rate was not 8%, but the special investment account rate for the period outside the 21-day time limit specified in the offer.
Brief mention should also be made of three costs capping cases. See R. (on the application of CR) v Director of Legal Aid Casework [2023] EWCA Civ 717: a judge had been entitled, on an application under CPR r.46.19 to set aside a costs capping order. See too Durham CC v Durham Co Ltd [2023] EWCA Civ 729: a Competition Appeal Tribunal judge had had no jurisdiction to impose a limiting cap on the recoverable costs of a local waste collection authority in statutory review proceedings brought under the Subsidy Control Act 2022 s.70 by a private sector commercial waste collection company. See also R (on the application of The All-Party Parliamentary Group on Fair Business Banking v The Financial Conduct Authority [2023] EWHC 1662 (Admin) about cost capping orders in judicial review.
Finally, the increasingly topical Court of Protection. In Hadley v Przybylo [2023] EWHC 1392 (KB), in a personal injury claim, the court held that costs arising from fee earners regularly attending case management meetings with medical professionals and with Court of Protection deputies, could not be included in a costs budget as such costs could not be said materially to progress the case (this case may be off to the Court of Appeal). In Brassington v Knights Professional Services Limited [2023] EWHC 1568, the court ruled that a solicitor who, in acting as a court-appointed deputy under the Mental Capacity Act 2005, had engaged her firm to act in a professional capacity in connection with the deputyship, had not assumed personal liability for payment of the firm’s unrecovered fees, disbursements and expenses.
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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