Summary of Recent Cases – Costs

Court upholds restricting multi-track costs to assessment on fast track basis

Katherine Morgan v The Spirit Group Limited CA, 02/02/11

The CA overturned in part the decision of the trial judge summarily assessing costs of £25,000 be paid by the defendant on the basis of a costs schedule of c £99,000. The claimant had succeed in her action for personal injury, recovering c. £13,000 of c. £40,000 claimed. The trial judge had made observations including that the claim was ‘greedy’ the appropriate measure of damages was ‘wholly untenable’ and that aspects of the damages claim was ‘astonishing and wholly unsustainable’. He considered that the claim had been, in reality, ‘a little fast track personal injury case which has been turned by the solicitor conducting the case into what is (if the expression be understood) a federal case’. However the trial judge was wrong to have failed to assess the costs as per the guidance of Lownds v Home Office [2002] EWCA Civ 365, where the proportionality of the costs as a whole needed to be considered followed by an item by item consideration of the individual elements of the bill. However the court refused to overturn the judge’s decision that costs be restricted to the fast track. Detailed assessment was ordered as if the case had been allocated to the fast track.

Conduct sufficient to justify no order as to costs despite the Claimant failing to beat a Part 36 Offer

Moira Walsh v Mark Buddha Singh (AKA Mark Buddha and Mark Walsh) CA10/02/11

The CA dismissed an Appeal by the defendant that there would be no order as to costs following trial, in circumstances when his Part 36 offer had not been beaten by the claimant. It was held that there were occasions when it may be appropriate for the court to mark its disapproval of a party’s conduct by making a particular order as to costs. However any disallowance had to be proportionate to the conduct in question. The defendant had sought to rely upon material he had obtained using spyware on a laptop owned by the used by claimant. This revealed amongst other things privileged material. The trial judge noted that counsel for the defendant had sought to cross-examine on the material until stopped by the judge. The spyware was installed without consent to commit a gross breach of the claimant’s privacy. The cross-examination of the claimant was capable of justifying a disallowance of costs.

Settlement on the day of a trial but prior to a hearing did not constitute settlement ‘concluded at trial’

(1) A Amin, (2) A Hussain v (1) L Mullings (2) Royal Sun Alliance, QBD, 17/02/11

Slade HJ held that ‘at trial’ within CPR 45.15 and CPR 45.17 meant at a contested hearing. There was a clear distinction in the rules between conclusion of a claim after and before a trial had commenced. The trigger for entitlement to a 100% uplift in fees was not settlement on a particular date but rather settlement after a hearing had commenced. The language of 45(16)(1) dealing with the percentage increase in solicitors fees was also clear-the entitlement to a 100% uplift arose when a claim concluded after the hearing had commenced. It would be straining the use of language to say that a trial had ‘commenced’ after the beginning of the day fixed for trial although the hearing had not yet started. A claim and counterclaim could not be treated as one single claim. The fact that the counterclaim had been determined at trial did not mean that the claim should also be regarded as having been determined at trial.

March 22, 2011 · Editorial Team · Comments Closed
Posted in: Cases