Summary of Recent Cases – Costs

The Court had discretion under the slip rule following an arithmetical mistake by Counsel

Riva Bella SA v Tamsen Yachts GMBH (Costs), (2011), EWHC 2338 (Comm)

The applicant applied to correct a judgment Order so as to reduce the sum awarded to the respondent. After the Order had been made the applicants solicitors wrote to the respondent’s solicitors informing them that the Order failed to take account of payments previously made such that the sum fell to be reduced which was strongly contested by the respondent. The instant application only sought to correct part of the court’s Order. The slip rule could not be used to enable the court to have second thoughts or to add to its original order. However, it was possible under the slip rule to amend an order to give effect to the intention of the court. The disputed sum was an arithmetical error which originated in the manner in which the respondent’s counsel presented its final submissions to the court and which the respondent’s counsel failed to notice at the relevant time. Thereafter, the error was perpetuated through into the draft order which was eventually signed by both parties’ counsel and which became the court’s order. The result was that the inclusion of certain figures in the order was properly described as an accidental slip or omission in a judgment or order. The fact that the slip or omission might have arisen from counsel’s accidental omission did not mean that r.40.12 was not engaged or that there was any bar to the exercise of the discretion under the slip rule.

The fact that a claim form seeking payment of money due may have been issued prematurely was irrelevant as the Defendant had not responded straight away and the later Defence was a blanket denial.

William S Roper v Auckland Risk Advisors Ltd & Anor (2011), QBD (Comm), 05/09/11

The court was required to determine costs following settlement between the Claimant and the Defendants. Following a determination by the American courts, the Claimant sought payment of money. The Claimant demanded payment within four days. The Defendants initially disputed that it owed any monies but later agreed that they had no defence to the Claimant’s claim and that they were content to submit to the court’s judgment in the sum claimed and interest. However, costs remained in dispute. The Defendants submitted that (1) the amount of costs the Claimant could recover should be reduced or no order for costs should be made as the issuance of the claim form was premature and that he pursued the claim aggressively; (2) it was an open and shut case and that should be taken into account. It was held that the the sum could not be said to have been pursued aggressively as it was due and there was nothing in the correspondence to suggest that the Claimant had an aggressive manner. It was not relevant or of assistance to the Defendants if proceedings were issued prematurely as once the proceedings were issued the Defendants did not respond and later put in a defence stating that no monies were due. There was therefore no effect on their position and on costs. The submission that it was an open and shut case was not favourable from a party that put in a defence. The Claimant was entitled to costs on an indemnity basis but the costs claimed were too high.

October 27, 2011 В· Editorial Team В· Comments Closed
Posted in: Cases