TGC Costs Conference 2017 Retainer to Recovery,

A Journey through Modern Litigation

WiFi: Conf Internet Password: grange1990

@tg_chambers #TGCcosts

Key Note Address

The Right Honourable Lord Justice Burnett

&

Simon Browne QC

Retainers & Assignments

Shaman Kapoor Temple Garden Chambers

& Master Rowley

Costs Judge, Senior Courts Costs Office

SHAMAN KAPOOR

Why relevant? Corporate restructure

Closure of a firm

Merger of firms

Take over of a firm

Fee earner changing firm – case following

Death of one partner

Continuing recoverability of additional liabilities

Overview Historically: contractual rights not assignable; but equity

permitted it

Now: statutory assignment OR equitable assignment

Solicitor’s retainer = equitable assignment

Debtor = Client

Firm A = Assignor

Firm B = Assignee

Dispelling the myths Not necessary to:

Have notice to debtor

To be in writing

To be in any particular form

Have consideration from the debtor

Have consent from the debtor

Novation

Sub-category of assignment

Consent of all parties mandatory

Old agreement is terminated

To replace old for new, and extinguish the rights and obligations of the old

Assignment GENERAL RULE: benefit can be assigned; burden cannot

Tolhurst v Associated Portland Cement [1902], Collins MR

Burden can be assigned IF there is consent

Privity of contract being doubtful, that is not novation

Benefit can be assigned

Personal skill & Confidence? No assignment (without consent)

Consent not necessary where it makes no difference to the person who discharges the burden

No assignment (without consent) if the character, credit and substance of the original contracting party is material (“special and personal” – artist; brand etc.)

If assignee has ability to perform burden on behalf of assignor, then assignment will be permitted

Conditional benefit cases? A burden conditional on the benefit is capable of

assignment

Relevance / correlation

Successor must have chosen to take it on - Thamesmead v Allotey (1998) CA

Conditional benefit cases (2) Jenkins v Young Bro. Transport Ltd [2006], QB

Client followed fee earner to two other firms: benefit of receiving payment was conditional upon the work being done and winning

Client relied on trust and confidence in fee earner; court would not interfere with professional relationship whose propriety and worth has never been challenged

Benefit was inextricably linked to burden

Relationship involved personal confidence

More recent cases Davies & Ors v Jones & Or [2009], CA

A sold property to B; B held £100k for work by A

B assigned interest in property to C; A sued C for £100k

HELD:

Benefit & burden must be conferred in the same transaction

Receipt of benefit must be relevant and reciprocal to burden

Person on whom burden is alleged must have opportunity to reject or disclaim benefit; not merely right to benefit

More recent cases (2) Jones v Spire Healthcare Ltd (11/09/15), DJ Jenkinson

Accident at work; CFA on 03/02/12 with B; B insolvent in 01/14; administrators sold PI work to SGI; 21/01/14 ‘deed of assignment’; and client notified & accepted.

No particular faith in fee earner Involved “personal skill or qualifications” So incapable of assignment; held to be a novation Second CFA not compliant: unenforceable Was this right on the principles? – Corrected on Appeal to CJ.

More recent cases (3) Webb v London Borough of Bromley (18/02/16), Master Rowley

14/03/12 accident; 23/03/12 CFA with L; partner died 07/13; 30/01/14 L ceased to trade and L assigned to G: novation, not assignment

Consent of all 3 parties is a ‘determining feature’ of a document being a novation rather than assignment

Is it determinative? What about the privity point?

Client found herself being required to change solicitors – not her choice – Does that matter?

Court considered whether there was trust and confidence in the fee earner – Is this properly a pre-requisite?

More recent cases (4) Budana v The Leeds Teaching Hospital NHS Trust (04/02/16), DJ Besford CFA case HELD: CFA terminated where C not forewarned about transfer;

Firm A stopped handling PI work; assigned to Firm B on 25/03/13; deed of assignment dated 31/03/13; C had no time to consider positon before cessation

Does it matter that C had no time? Jenkins raised an unnecessary doubt about trust & confidence;

never mind the injustices – any change of regime causes some; CA on 04/07/17

More recent cases (5) Griffith & Or v Paragon Personal Finance Ltd (17/10/16), DJ Baddeley

PPI mis-selling; Firm A incorporated to Firm B; Firm B transferred business to Firm C (Same trade name); Firm C transferred some business to Firm D (different name altogether)

Client not told of earlier business transfers; but authorised the last; deed reflected benefit & burden

Jenkins meant a CFA can be assigned where fee earner moves; relationship equivalent to Jenkins; intention for CFA to continue (not Budana)

Lack of client consent not fatal

ROUND UP GEN: Burden can be assigned if consent CAT 1: Personal Skill & Confidence No consent required if no difference to client If special and personal, need consent CAT 2: Condition Benefit Relevance / correlation / reciprocal Assignee must consent CFA can be assigned CONSENT? Depends. TRUST & CONFIDENCE? No.

18

Retainer Issues Master Rowley

Identification

Parties – client, opponent Case / subject matter Definition of “Win”

A solution?

Retainer Issues

Hourly rates GHR – summary only? Annual increases? Evidence Once and for always?

Retainer Issues

Statutory regulation

The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013

Retainer Issues

Statutory regulation

S71(2) Consumer Rights Act 2015

“The court must consider whether the term is fair even if none of the parties to the proceedings has raised that issue or indicated that it intends to raise it.”

Retainer Issues

Recoverability from the client

S74(3) Solicitors Act 1974

S64 / 70 Solicitors Act 1974

CPR 44.3(5)

The amount which may be allowed on the assessment of any costs or bill of costs in respect of any item relating to proceedings in a county court shall not… exceed the amount which could have been allowed in respect of that item as between party and party in those proceedings…

Litigation Funding – Panel Discussion

Stephen O’Dowd Harbour Litigation Funding Simon Burnett Balance Legal Capital

Nick Moore Therium Capital Management Ltd David Pipkin Temple Legal Protection

Chair: Simon Browne QC

ATE PREMIUMS

Matthew Waszak Temple Garden Chambers

& Richard Boyle

Temple Garden Chambers

PRE-LASPO ATE PREMIUM RECOVERY

Matthew Waszak

The Very Basics

• Section 29 of the Access to Justice Act 1999; Callery v Gray [2001] 1 WLR 212 (CA)

• Pre-April 2013 form of CPR 43 to 48

• Lownds v Home Office [2002] EWCA Civ 365 proportionality test

Rogers v Merthyr; Coventry v Lawrence

• If necessary to incur a staged premium, it should be adjudged a proportionate expense. Quantum of claim not relevant.

• Reasonable for an insurer to price a block-rated premium by reference to its basket of risk.

• Sufficient in the event of challenge for a claimant’s solicitor to explain why the premium was chosen and the basis on which the premium was calculated.

• The reasonableness of ATE premiums should not be interfered with by Costs Judges and District Judges.

Challenges to premiums: Kris Motors v Fox Williams

• Evidential burden on the paying party to advance at least some material in support of the contention that the premium is unreasonable.

• The Court envisaged the hearing of expert evidence.

• The issue of reasonableness must be resolved by reference to evidence and analysis, rather than by assertion and counter-assertion.

Challenges without evidence: Redwing and Kelly

• Judgment of Akenhead J in Redwing Construction Limited v

Charles Wishart [2011] EWHC 19 (TCC)

• Judgment of Master Hurst in Kelly v Black Horse (SCCO, 27.09.12, Case No: PTH 1300060)

Banks v London Borough of Hillingdon

• ATE policy taken out to fund PI claim arising from a slipping accident. Claimant successful at trial. All costs agreed save for the ATE premium, which proceeded to PA.

• At PA: detailed evidence from claimant explaining calculation of the premium; no evidence from defendant to mount challenge. 60% reduction made. Reliance on Redwing and Kelly approaches.

• Overturned on appeal by HHJ Walden-Smith.

• NB: dicta about Redwing and Kelly v Blackhorse

• Nokes v Heart of England Foundation NHS Trust. • Martin v Queen Victoria Hospital NHS Foundation Trust. • Comparators.

Surrey & Ors v Barnet and Chase Farm Hospitals & Ors

• Clinical negligence cases, originally funded by legal aid, but then funded by pre-LASPO CFAs and ATE policies.

• In Surrey and AH, the ATE premiums were reduced. No evidence provided by paying parties to support a reduction.

• Foskett J (with Chief Master Gordon-Saker as an assessor): “each of the Costs Judges would have been entitled to intervene by reducing the amounts recovered in respect of the ATE premium”.

Pollard v University Hospitals NHS Trust • ATE policy taken out to fund PI claim arising from a slipping accident. C

successful at fast-track trial. Summary assessment of costs. ATE premium reduced from £18,073.02 by reference to limit of indemnity.

• Error of principle

• Rogers undiminished in authority

• Doubt cast on Foskett J’s decision in Surrey

Final Thoughts

• Chief Master Gordon- Saker in BNM

• Surrey v Pollard

• Status of Rogers

• Return to the Court of Appeal?

THE RECOVERY OF POST-LASPO ATE PREMIUMS

Richard Boyle

The General Rule • ATE premiums cannot be recovered from the other side

(s.46 LASPO). • Applies to any ATE premium incepted on or after 1st April

2013.

Exceptions

• Clinical negligence. • Diffuse mesothelioma. • Publication and privacy proceedings. • Insolvency proceedings until 6th April 2016.

Compliance with the Legislation for Clinical Negligence Premiums

• Does the policy insure for the cost of expert reports relating to liability or causation alone?

• Does the purportedly recoverable part of the premium relate to that risk alone?

• Considered in Nokes v Heart of England Foundation Trusts and Axelrod v University Hospitals of Leicester NHS Trust.

Was the premium necessarily, reasonably and proportionately incurred?

• Considered in McMenemy v Peterborough & Stamford

Hospital NHS Foundation Trust. • Appeal to Court of Appeal to be heard by 5th June 2017. • Considered in Mewis v Burton Hospitals NHS Foundation

Trust.

Was the premium reasonable in amount?

• Rogers dicta on broad brush approach remains applicable?

• Nokes v Heart of England Foundation NHS Trust. • Martin v Queen Victoria Hospital NHS Foundation Trust. • Comparators.

Does proportionality apply to ATE premiums?

• Considered in BNM v MGN. • Considered in King v Basildon & Thurrock University

Hospitals NHS Foundation Trust.

Was the premium proportionate in amount?

• If proportionality does apply:

• Global or specific? • Pre-LASPO Lownds test of proportionality no longer

applies by virtue of r 44.3(2)(a) CPR. • Tension between Rogers and proportionality test.

44

COFFEE BREAK

Please be back Seated for 11.45am

Proportionality

James Laughland Temple Garden Chambers

& Philip Daval-Bowden

Senior Managing Partner, Masters Legal Costs Services LLP

Proportionality: we were warned!

15th Implementation Lecture, 29 May 2012

Lord Neuberger

“Parties and their lawyers must keep firmly in mind that they ought to expend no more than a

proportionate amount of money in pursuit of justice. If they wish to spend more, they must appreciate that such sums will not be recoverable from their

opponent.”

…it seems to me that the new test of proportionality...will require legal representatives to inform their clients that,

even if successful, they will receive no more than a contribution to the costs that will be incurred.

May v Wavell Group PLC & Anor [2016] EWHC B16 (Costs)

Proportionality is not just a matter for Detailed Assessment

“[10]...the forthcoming new approach to proportionate costs…will operate before the issue of the claim form,

throughout the life of proceedings, and then at the end of proceedings when costs come to be assessed.”

15th Implementation Lecture

CPR 3.12(2)

The purpose of costs management is that the Court should manage both the steps to be taken and the costs to be

incurred by the parties to any proceedings so as to further the overriding objective.

The Overriding Objective

CPR 1.1(1) “These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and

at proportionate cost.”

Precedent H Declaration

“This budget is a fair and accurate statement of incurred and estimated costs which it would be reasonable and proportionate for my client to incur in this litigation.”

PD 22 para 2.2A

“[11] Effective management of claims by lawyers and the courts during the pre-trial stage will require consideration of whether certain steps can be achieved at proportionate cost, and, if not, whether the client is willing to pay for it

knowing that the costs will be irrecoverable. At case management and costs management hearings, the court will have to decide the cost of certain steps, and whether

that cost is proportionate.” 15th Implementation Lecture

Costs Budgets v Detailed Assessment

“[51] There is no doubt that the factors in CPR 44.4(3) to be taken into account when deciding the amount of costs to be

allowed apply both at the budgeting and assessment stages.”

Merrix v Heart of England NHS Foundation Trust DJ Lumb, RCJ: 13.10.16

“[50] What undoubtedly was intended was that effective costs and case management would greatly reduce the need for detailed assessment of some or all of the parties’ costs by ensuring that the costs budgets were within the range of

reasonable and proportionate costs for each phase. In so doing the scope for disagreement should be reduced to a level where a

paying party would be unwise to risk incurring the significant costs of the detailed assessment process for what would only be

limited potential gains.”

CPR 3.18 In any case where a costs management order has been made, when assessing costs on the standard basis, the court will –

(a) have regard to the receiving party’s last approved or agreed budget for each phase of the proceedings; and

(b) not depart from such approved or agreed budget unless satisfied that there is good reason to do so.

Sarpd Oil International Limited v Addax Energy SA & ANR [2016] EWCA Civ 120

“The proper interpretation of the order made in relation to each costs budget, therefore, is that the estimated costs element in each case was approved by the order and the court commented on the incurred costs element in each case (and on the total figure which included that element), as it was entitled to do under the second sentence of para. 7.4, to the effect that it agreed the claim made on the face of the costs budget that those costs were reasonable and proportionate costs in the litigation.”

“The effect of this comment was that it was likely that the incurred costs element would be included in any standard assessment of costs at the end of the day, unless good reason was shown why it should not be. There was little if any difference between the practical effect of the court’s order in relation to incurred costs and its order in relation to estimated costs…. It is therefore appropriate that the costs budgets as so “approved” should be used as the relevant reference point….”

Proportionality Trumps Necessity

“[35] The amount that can be recovered from the paying party is not the minimum sum necessary to bring or defend the case successfully. It

is a sum which it is appropriate for the paying party to pay by reference to the five factors in CPR 44.3(5). It is not the amount

required to achieve justice in the eyes of the receiving party but only a contribution to that receiving party's costs in many modest cases.”

May v Wavell Group PLC

CPR 44.3(5) Costs incurred are proportionate if they bear a reasonable relationship to – (a) the sums in issue in the proceedings; (b) the value of any non-monetary relief in issue in the proceedings; (c) the complexity of the litigation; (d) any additional work generated by the conduct of the paying party; and (e) any wider factors involved in the proceedings, such as reputation or public importance.

Proportionality is to be considered on a global basis.

“The Court should first make an assessment of the reasonable costs, having regard to the individual items in the bill, the time reasonably

spent on those items and then other factors listed in CPR 44.3(5). The Court should then stand back and consider whether the total figure is proportionate. If the total figure is not proportionate the court should

make an appropriate reduction” Jackson Final Report at [37]

Paying a Proportion of Costs

CPR 44.2(6)(a) permits the Court to order the Paying Party to pay a proportion of the Receiving Party’s costs.

How might this be applied if the Trial Judge thinks the

Receiving Party’s costs are disproportionate, perhaps by pursuing every point no matter how low value or ill-

founded?

Amey LG Ltd v Cumbria County Council [2016] EWHC 2496 (TCC), HHJ Stephen Davies

“…care should be taken to avoid the risk of double jeopardy so that the trial judge should take steps to ensure that the

costs judge is able to understand the effect of the order made by the trial judge and thus the task remaining for him

to undertake.”

“[27]…The trial judge should limit his task to addressing

whether relevant circumstances such as conduct, success and admissible offers arise and, if so, their impact on the

trial time, or the case as a whole, and how – if at all – they ought to be reflected in the costs order made.”

“[27]…The trial judge should make a proportionate costs

order based solely on such considerations, as opposed to the further consideration as to what proportion of the overall

costs would have been incurred had the action been pursued in a manner which was proportionate.”

Should Additional Liabilities be included within determination of proportionate costs?

Master Gordon-Saker ✓[BNM v MGN]

Master Rowley✗[King v Basildon NHS Trust] Master Brown ✗[Murrells v Cambridge Uni NHS Trust]

How best to deal with Proportionality?

Achieve a realistic costs budget and litigate within it.

Win on a Part 36 offer.

Costs Budgeting

Richard Wilkinson Temple Garden Chambers

LESSER OF TWO EVILS

OR

THE WORST OF BOTH WORLDS?

RICHARD WILKINSON

ASK THE AUDIENCE ….

STARTER FOR TEN …..

BASED ON YOUR EXPERIENCE TO DATE, IS COST BUDGETING A GOOD WAY OF HELPING TO CONTROL THE COSTS OF CIVIL LITIGATION?

EFFICIENCY?

IN YOUR EXPERIENCE OVER THE LAST 9 MONTHS, HAS COST BUDGETING BECOME:-

A. MORE EFFICIENT?

B. LESS EFFICIENT?

C. REMAINED THE SAME?

AND FINALLY WHO RECENTLY SAID THIS ABOUT COST BUDGETING?

“It is so successful because it manages to combine clarity for the parties (not just the defendant) as to potential costs liability in a case with an assessment of the reasonable and proportionate costs that should be incurred in that individual case.”

WHAT IF …….?

Cost Budgeting

&

Fixed Costs?

Details, details

Rule changes in 2016

SIZE ISN’T EVERYTHING Recent examples of application to cases worth > £10m Simpkin v Berkeley Group

Holdings

Construction Industry Vetting Information Group Litigation

At the hearing

Post hearing tips

Amend the Assumptions document too

Client care

Part 36 offers

A Blast from the Past?

Jamadar v Bradford Teaching Hospitals NHS Foundation Trust

Budget Discussion Reports?

{see CPR 3.13(2)}

Ahh! Didn’t think of that ….. PD3E, para 7.6

“Each party shall revise its budget in respect of future costs upwards or downwards, if significant developments in the

litigation warrant such revisions.” …… The court may approve, vary or disapprove the revisions having regard to any significant developments which have occurred since

the date when the previous budget was approved or agreed.”

Significant Developments?

Churchill v Boot [2016] EWHC 1322 Mr Justice Picken

Value of claim doubled

(from £1m to £2m) Adjournment of original trial

date Provision of further

disclosure

Significant developments (2)

Greig v Lauchlan

Judge Millett QC (Ch D)

December 2016

Late change of legal team did not justify departure from budget

Under surveillance?

Purser v Hibbs [2015] EWHC 1792 (QB)

HHJ Maloney QC

(Late acceptance of P36 offer case) Could D recover costs of

surveillance not mentioned in its budget?

A ‘special case’

Sauce for the goose ……

What goes up, can come down Ever invited your opponent to serve a reduced budget following a development in the case?

Liability resolved by agreement

Quantum agreed

Evidence on a particular issue is no longer required

It’s all in the timing 3PD, para 7.4

“As part of the costs management process the Court may not approve costs incurred before the date of any budget.”

Too late if the work has already been done (Yeo v Times Newspapers, Warby J, 2015)

Court has no jurisdiction after trial has concluded (Elvanite Full Circle, Coulson J, 2013)

No jurisdiction even to give an indication? (Capital for Enterprise Fund, HHJ Pelling, 2015)

There’s always an exception

Barkhuysen v Hamilton

[2016] EWHC 3371 (QB)

Warby J

Indemnity costs awarded

Good reasons to depart identified

Time for Lunch

LUNCH

Lunch is served in the ground floor restaurant, With an overflow in the atrium.

Please be back seated to resume at 14.15pm

PART 36

Ben Casey Temple Garden Chambers

& David R. White

Temple Garden chambers

Part 36 Offers The Civil Procedure (Amendment No. 8) Rules 2014

Part 36 was completely re-enacted by the Civil Procedure (Amendment No. 8) Rules 2014 (SI 2014/3299)

with effect from 6 April 2015.

The Explanatory Memorandum sets out the policy background to the amendments to Part 36 (at para. 7.1(d)):

“…Since the rules were substantially amended in 2007 there has been a large amount of case law…in respect of the application of the rules to various aspects of settlement including fraudulent claims and offers in respect of a two part trial determining liability and damages separately. The changes reflect the case law and aim to simplify the rules as far as possible to make them more accessible to court users, particularly litigants in person.” Part 36.1(1) ‘This Part contains a self-contained procedural code about offers to settle made pursuant to

the procedure set out in this Part’.

Application of the new Part 36 rules

Basic propositions The new Part 36 rules are applicable to Part 36 offers made on or after 6 April 2015; and For most purposes, the old rules apply to Part 36 offers made prior to 6 April 2015.

Transitional Provisions provide that certain aspects of the new rules apply to Part 36 offers

made before 6 April 2015 (largely in respect of a trial of any part of the claim or of any issue arising in it).

Formalities

CPR 36.2(2) ‘Nothing in this section prevents a party making an offer to settle in whatever way that party chooses, but if the offer is not made in accordance with Rule 36.5, it will not have the consequences specified in this Section.’ CPR 36.5(1) (formality requirements) Modest relaxation of the formality requirements Have to make clear that the offer is being made pursuant to Part 36

(no longer have to state that the offer is intended to have the consequences of Part 36).

Non-compliant offers

An offer which does not comply with the requirements of Part 36.5 will not attract the usual Part 36 consequences but the Court may still take the offer into account when exercising its discretion as to costs (CPR 44.2(4)(c).

Huntley v Simmonds [2009] EWHC 406 (QB) F & C Alternative Investments Ltd v Barthelmy [2012] EWCA Civ 843; [2013] 1 WLR

548 “It is not permissible wholly to discount a number of failures to comply with the requirements of Part 36 as the merest technicality. Perhaps there can be de minimis errors or obvious slips which mislead no-one: but the general rule…is that for an offer to be a Part 36 offer it must strictly comply with the requirements.” Shaw v Merthyr Tydfil County Borough [2014] EWCA Civ 1678; [2015] PIQR P8, CA

Claims, Counterclaims and Additional Claims CPR 36.2(3) ‘A Part 36 offer may be made in respect of the whole, or part of, or any issue that arises in (a) a claim, counterclaim or other additional claim; or (b) an appeal or cross appeal from a decision made at trial. (Rules 20.2 and 20.3 provide that counterclaims and other additional claims are treated as claims and that references to a claimant or a defendant include a party bringing or defending an additional claim).

Need for clarity in making Part 36 offers (claims, counterclaims, additional claims, issues).

Claimant’s offer or Defendant’s offer?

New form N242A (guidance notes).

Van Oord UK Ltd v Allseas UK Ltd [2015] EWHC 3385 (TCC): concerning whether an offer made by a Defendant was a Defendant’s offer on the claim or a Claimant’s offer on the counterclaim.

Appeals CPR 36.2(3)(b) Part 36 offers can be made in appeal proceedings. But composite first instance and appeal offers are not permissible

(separate offers are necessary). CPR 36.4(1) ‘Except where a Part 36 offer is made in appeal proceedings, it shall have the consequences set out in this Section only in relation to the costs of the proceedings in respect of which it is made, and not in relation to the costs of any appeal from a decision in those proceedings.’ CPR 36.2(3) now clarifies for the first time that Part 36 offers can only be

made in respect of appeals (or cross appeals) from a decision made at trial.

Withdrawing or Changing a Part 36 Offer CPR 36.9(2) ‘The offeror withdraws the offer or changes its terms by serving written notice of the withdrawal or change of terms on the offeree’. Changes of note Provision for the parties to make time limited offers. CPR 36.9(4)(b) ‘Subject to paragraph (1) after the expiry of the relevant period the

offer may be automatically withdrawn in accordance with its terms.’

CPR 36.9(5) ‘Where the offeror changes the terms of a Part 36 offer to make it more advantageous to the offeree

(a) such improved offer shall be treated, not as the withdrawal of the original offer; but as the making of a new Part 36 offer on improved terms; and

(b) subject to rule 36.5(2), the period specified under rule 36.5(1)(c) shall be 21 days or such longer period (if any) identified in the written notice referred to in paragraph (2).

Withdrawing or changing the terms of a Part 36 offer before the expiry of the relevant period CPR 36.10 …this rule applies where the offeror serves notice before the expiry of the relevant period of withdrawal of the offer or change of its terms to be less advantageous to the offeree. If the offeree has not already served notice of acceptance, the offeror’s notice of withdrawal

has effect on the expiry of the relevant period.

However, if the offeree then serves notice of acceptance within the relevant period that acceptance has effect unless the offeror applies to withdraw the offer or to change its terms within 7 days of the offeree’s notice of acceptance or, if earlier, before the first day of trial.

When might the Court give permission to withdraw or change the terms of the offer?

CPR 36.10(3): A change of circumstances since the making of the original offer and it is in the interests of justice to give permission (Flynn v Scougall [2004] EWCA Civ 873; [2004] 1 WLR 3069 and Evans v Royal Wolverhampton Hospitals NHS Foundation Trust [2014] EWHC 3185 (QB); [2015] 1 WLR 4659).

Costs consequences of withdrawing or changing the terms of a Part 36 Offer CPR 36.17(7)(a) makes it clear that withdrawn offers do not enjoy the usual Part 36 consequences. BUT see Trustees of Stokes Pension Fund v Western Power Distribution (South West)

plc [2005] EWCA Civ 854; [2005] 1 WLR 3595

Rehill v Rider Holdings Ltd [2014] EWCA Civ 42; [2014] 3 Costs LR 405

But there is no question of indemnity costs, enhanced interest or an additional amount by way of damages.

Acceptance of a Part 36 offer: Rule 36.11

Common law doctrine of implied rejection does not apply:

An offeree’s rejection of a Part 36 offer does not extinguish the offer, and it is capable of acceptance at a later date (see Gibbon v. Manchester City Council [2010] 1 WLR 2081).

CPR 36.11(2) expressly provides that a Part 36 offer may be accepted even if the offeree subsequently makes a counter-offer.

BUT: A Part 36 counter-offer may amount to an implied rejection of an earlier

non-Part 36 offer. See DB UK Bank Limited (T/A DB Mortgages) v Jacob Solicitors [2016] EWHC

1614 (Ch).

Acceptance of a Part 36 offer in a split-trial case

CPR 36.12:

“(1) This rule applies in any case where there has been a trial but the case has not been decided within the meaning of rule 36.3.

(2) Any Part 36 offer which relates only to parts of the claim or issues that have already been decided can no longer be accepted.

(3) Subject to paragraph (2) and unless the parties agree, any other Part 36 offer cannot be accepted earlier than 7 clear days after judgment is given or handed down in such trial.”

Acceptance within the relevant period

Acceptance of a Defendant’s Part 36 offer relating to part of the claim only:

CPR 36.13(2) Where- (a) a Defendant’s Part 36 offer relates to part only of the claim; and (b) at the time of serving notice of acceptance within the relevant period the claimant abandons the balance of the claim, the claimant will only be entitled to the costs of such part of the claim unless the court orders otherwise.”

Amends old rule (36.10(2)) whereby default position was that the claimant was entitled to costs of the proceedings (albeit subject to a contrary order).

Acceptance after expiry of the relevant period

No deemed costs order in cases of late acceptance of a Part 36 offer.

Liability for costs has to be determined by the court “unless the parties have agreed the costs” - rule 36.13(4)(b)).

Where parties cannot agree the liability, the court must, “unless its considers it unjust to do so”, make the costs orders prescribed by 36.13(5):

C is awarded costs up to the date on which the relevant period expired; and Offeree is to pay offeror’s costs for the period from the date of expiry of the

relevant period to the date of acceptance.

Rule 36.13(6)

In deciding whether it would be unjust to make the orders in rule 36.13(5), “the court must take into account all the circumstances of the case including the matters listed in rule 36.17(5)”.

No change to pre-6 April 2015 approach; new rule 36.13(6) codifies previous case-law in decisions such as Lumb v. Hampsey [2011] EWHC 2808 (QB).

Time for Payment

Rule 36.14(6):

“Unless the parties agree otherwise in writing, where a Part 36 offer that is or includes an offer to pay or accept a single sum of money is accepted, that sum must be paid to the claimant within 14 days of the date of- (a) acceptance; or (b) the order when the court makes an order under rule 41.2 (order for an award of provisional damages) or rule 41.8 (order for an award of periodical payments) unless the court orders otherwise.” Failing that the Claimant may enter judgment for the unpaid sum (CPR 36.14(7)).

In Titmus v. General Motors UK Limited [2016] EWHC 2012 (QB) Laing J held that the court had no

discretion under CPR Part 3 to extend the 14-day time limit for payment pursuant to rule 36.14(6).

Restriction on disclosure of a Part 36 Offer

General rule retained in new rule 36.16(2):

Fact that a Part 36 offer has been made and the terms of such offer must not be communicated to the “trial judge” until the case has been “decided”.

“Trial judge” and “decided” are defined in rule 36.3.

Split Trial Exception to the Rule on Non-disclosure The problem under the old rules: Ted Baker Plc v AXA Insurance UK Plc [2012] EWHC 1779 (Comm) per Eder J (at para. 19): “It seems to me….that there is a "real problem" here. In my view, there is an urgent need for CPR 36.13 to be reviewed and possibly reformulated in order to deal in particular with the question of "split trials" and the kind of difficulties which have arisen in the present case.”

Old rules prevented the trial judge from being told about any Part 36 offers, even those that only related to

the preliminary issues, until the case had been decided. Limited exception where the parties agreed in writing that the restriction should not apply (but it was often

not in the interests of one or other party to agree). Following a trial of preliminary issues, the judge had to decide costs in respect of the preliminary issues in

ignorance of whether any relevant Part 36 offers had been made.

Transitional provisions: to resolve, with immediate effect, the difficulties encountered under the old rules

in respect of acceptance and disclosure of Part 36 offers in split trials, or trials of preliminary issues.

With effect from 6 April 2015, and in response to the problems under the old rules, pursuant to the new rules there are now no restrictions on telling the trial judge at the end of the preliminary trial:

(1) About the terms of any Part 36 offers relating only to those parts or issues in the cases that have been decided – rule 36.16(3)(d); and

(2) About the existence, but not the terms, of any other Part 36 offers – rule 36.16(4).

Unaccepted Defendant offers Costs consequences following judgment:

Basic rule under rules 36.17(1)(a) & 36.17(3):

Where, upon judgment being entered, C fails to obtain judgment “more advantageous” than D’s offer:

“unless it considers it unjust to do so”, the court must order, D is entitled to:

costs from the date on which the relevant period expired; and interest on those costs.

“More advantageous”: rule 36.17(2)

Payments to the Claimant by the Defendant after the date of the Defendant’s Part 36 offer.

If a payment reduces the value of the claim, it may make the Part 36 offer more attractive: LG Blower Specialist Bricklayer v. Reeves [2010] 1 WLR 2081 at para. 37.

However, Briggs LJ doubted Blower in Littlestone v. MacLeish [2016] EWCA Civ 127, holding that a later payment was made on account of both the claim and Part 36 offer.

Blower confined to particular facts?

Unaccepted Claimant offers: Costs consequences following judgment

Basic rule under rules 36.17(1)(b) & 36.17(4):

Where, upon judgment being entered, judgment against the Defendant is “at least as advantageous” as the proposals in the Claimant’s offer:

“unless it considers it unjust to do so”, the court must order (CPR 36.17(4))

Interest on sum of money awarded (capped at 10% above base rate) – rule 37.17(4)(a);

Indemnity costs – rule 36.17(4)(b); Interest on costs – rule 36.17(4)(c); and An “additional amount” (on a sliding % scale capped at £75,000) – rule 36.17(4)(d).

Rule 36.17(5): Is it unjust to make the orders?

In considering whether it is unjust to make the orders (in rule 36.17(3) or 36.17(4)), rule 36.17(5) requires the court to take into account all of the circumstances of the case, including: The terms of any Part 36 offer – rule 36.17(5)(a); The stage in the proceedings when the Part 36 offer was made – rule

36.17(5)(b); The information available to the parties when the Part 36 offer was

made – rule 36.17(5)(c); The conduct of the parties – rule 36.17(5)(d); and Whether the offer was a genuine attempt to settle the proceedings –

rule 36.17(5)(e).

The burden on an unsuccessful offeree to establish injustice if a different order is not made is a high one; “formidable” (per Briggs J in Smith v. Trafford Housing Trust [2012] EWHC 3320 (Ch)).

In Yentob v. MGN Ltd [2015] EWCA Civ 1292 the Court of Appeal upheld Mann J’s decision to depart from the usual order in a phone-hacking case where C failed to obtain judgment more advantageous than the newspaper’s Part 36 offer.

“Genuine attempt to settle proceedings”

Introduced to overcome difficulty under old rules where a Claimant had made a very high Part 36 offer for nearly all of the relief claimed.

Difficulty was addressed in AB v CD [2011] EWHC 602 (Ch). The Claimant’s Part 36 offer was for 100% of claimed relief. Henderson J refused Part 36 consequences on grounds that a settlement offer had to involve a genuine element of concession.

But in Huck v. Robson [2003] 1 WLR 1340 the majority of the Court of Appeal considered that C’s offer of 95% of the value of the claim was valid. The Court of Appeal did however recognise the potential for abuse, holding that if the offer was “merely a tactical step designed to secure the benefits” of Part 36 it would not be given effect to.

Potential for abuse exacerbated by the entitlement to an additional amount under rule 36.17(4)(d). This led to the new rule being introduced.

Focus under rule 36.17(5)(e) is on whether the Part 36 offer represents a genuine attempt to settle, and not whether the offer was tactical.

R (MVN) v. London Borough of Greenwich [2015] EWHC 2663 (Admin): A Part 36 offer by C to settle disputed age assessment proceedings by D accepting age asserted by C was not a genuine offer to settle within the meaning of rule 36.17(5)(e).

Jockey Club Racecourse Limited v. Wilmott Dixon Construction Limited [2016] 4 WLR 43: A Part 36 offer to accept 95% of the value of a claim was a genuine offer.

QUALIFIED ONE WAY COSTS SHIFTING (“QWOCS”)

Mark James Temple Garden Chambers

QUALIFIED ONE WAY COSTS SHIFTING (“QWOCS”)

What types of cases are covered by QWOCS?

All personal injury cases (including clinical negligence) and “Fatals” under FAA 1976 and LR(MP)A 1934

What is it?

“Orders for costs made against a claimant may be enforced without the permission of the court but only to the extent that the aggregate amount in money terms of such orders does not exceed the aggregate amount in money or any orders for damages and interest made in favour of the claimant.” (CPR r. 44.14(1)).

An example C obtains judgment for £100,000 (inclusive of interest) but fails to beat D’s Part 36 offer. The usual costs order is made. D’s post-Part 36 offer costs are £75,000.

Question: Is D’s liability under the judgment limited to £25,000?

Answer: No. The usual order will be for a set-off of costs (under CPR r. 44.12) so QWOCS will only come into play when D’s post-Part 36 offer costs exceed C’s pre-Part 36 offer costs. Major beneficiaries are claimants who lose on liability

Another example,

C obtains judgment for £100,000 (inclusive of interest) but fails to beat D’s Part 36 offer. The usual costs order is made. D’s offer was made early in proceedings. D’s post-offer costs are £150,000; C’s pre-Part 36 offer costs are £25,000.

Question: Can D argue that it need not pay any damages at all?

Answer: Yes. After set-off C owes D £125,000 for D’s costs. D takes all of C’s damages. D has to fund the £25,0000 shortfall itself. C’s sols left staring into an empty pot.

“Orders for costs made against a claimant may only be enforced after the proceedings have been concluded and the costs have been assessed or agreed.” (CPR r. 44.14(2)).

Thus, costs orders made at interim hearings are covered by QWOCS. No more ‘pay as you go.’

But, costs of detailed assessment proceedings seem to fall within QWOCS.

Anything not covered?

1. Claimant has entered into a pre-commencement funding arrangement (CPR r. 44.17). This is retrospective in effect: Wagenaar v Weekend Travel Ltd [2014] EWCA Civ 1105.

Consider: Landau v The Big Bus Company, Unreported, 31 October 2014, SCCO.

Casseldine v The Diocese of Llandaff Board for Social Responsibility, Unreported, 3 July 2015, Regional Costs Judge Phillips.

2. Where the proceedings have been struck out on the grounds that:

(a) the claimant has disclosed no reasonable grounds for bringing the proceedings;

(b) the proceedings are an abuse of the court’s process;

(c) the conduct of C or his representative is likely to obstruct the just disposal of the proceedings.

CPR r. 44.15. (Strike out where there has been a failure to comply with a rule, practice direction or court order under CPR r. 3.4(2)(c) is within QWOCS).

3. Where “the claim is found on the balance of probabilities to be fundamentally dishonest” CPR r. 44.16(1). NB. Permission of the court is required to enforce against C to full extent.

4. Proceedings that include a claim which is made for the financial benefit of a person other than the claimant or a dependent (other than a claim in respect of the gratuitous provision of care, earnings paid by an employer or medical expenses).

CPR r. 44.16(2)(a).

NB. Permission to court required to enforce up to full extent and to extent that court considers just.

5. Applications for pre-action disclosure: CPR r. 44.13. 6. Non-party costs orders under CPR r. 46.2 (also CPR r. 44.16(3)). 7. ‘Wasted costs’ orders under CPR r. 46.8.

Coffee Break

Please be back seated

for 3.45pm

FIXED COSTS

Lionel Stride Temple Garden Chambers

& Master Roberts

Queen’s Bench Division

ESCAPE FROM FIXED COSTS: the routes back to full costs recovery.

Lionel Stride

Summary of the General Rule under CPR 45.29A: -

• Claim started life in RTA or EL/PL Protocol

• Claim no longer proceeds under the Protocol (e.g., liability dispute)

• Fixed costs apply

BUT

NOTE: no mention of

value under this provision

What are the escape routes?

‘Exceptional Circumstances’

Defendant’s successful Part 36 offer and/or

disapplication of QOCS

Claimant’s successful Part 36 Offer

Allocation to the Multi-Track

Allows for fixed recoverable costs

greater than in the tables

Excludes disbursements

(applies to profit costs or advocacy

fees)

Can be summary or detailed assessment

Escape Route One: Exceptional Circumstances

Application under CPR 45.29J on the basis that ‘exceptional circumstances’ make it ‘appropriate’

When would this exception apply?

(Potential examples…)

Case allocated to the Fast Track where

fraud is alleged but not made out

Case allocated to the Fast Track where claim ultimately

exceeds £25,000 limit

Unreasonable conduct

Misguided applications or

hopeless arguments

Conclusion: possible escape but likely to be thwarted before you are off the island in

most instances

BUT: Make sure that you prepare a costs schedule setting out the extra work to give

yourself the best chance!

Escape Route Two: Defendant’s Successful Part 36 Offer

Usual Rule: defendants’ costs fixed pursuant to CPR 45.29F UNLESS: -

a. Claimant fails to obtain a judgment more advantageous than defendant’s Part 36 offer (CPR 45.29F(9))

b. QOCS is dis-applied pursuant to CPR 44.15 or 16 (CPR 45.29F(10))

Example A: C fails to beat Part

36 Offer

Costs recovery governed by CPR

36.21(9)

Court ‘must have regard to’ and ‘costs must

not exceed’ fixed costs after

deduction of amount to

which claimant entitled

(depending on timing of offer)

So costs effectively

capped by fixed costs regime

Example B: QOCS dis-applied (e.g.

struck out as abuse etc; finding of FD or claim made for

benefit of TP)

Costs assessed without reference to fixed costs regime

BUT

Only applies to defendants: C has

to apply under ‘exceptional

circumstances’ if D fundamentally

dishonest

Conclusion: if QOCS dis-applied, defendants escape the prison, get off the island and all the way to shore, although they might not avoid capture on arrival if

C is impecunious!

Escape Route Three: Claimant’s Successful Part 36 Offer

What if C makes a successful Part 36 Offer in a claim to which CPR 45.29A applies? CPR 36.21 states that: -

- Rule 36.17 [which sets out the usual cost consequences following judgment where a Part 36 Offer is not beaten] applies with modifications

- BUT ‘modifications’ relate specifically to circumstances where a claimant fails to beat D’s Part 36 offer

- CPR 36.21 is silent on what happens if C gets better judgment than own offer

Issue resolved by Court of Appeal in Broadhurst v Tan [2016] EWCA Civ 94: -

- Implication of ‘silence’ in CPR 36.21 is that indemnity costs should apply

- Fixed costs and assessment costs conceptually different, so should have costs over and above fixed costs

- Consistent with Explanatory Memorandum to 2013 Amendment Rules, which specifically stated that C entitled to costs on indemnity basis if made successful Part 36 offer

Conclusion: if Part 36 Offer not beaten at trial, C has effectively made it off the

island, braved the seas and made good his escape onshore, with the odd regret or two

about the duration of his incarceration (timing of offer)

Escape Route Four: Allocation to the Multi-Track

What if claim starts life in the RTA or El/PL Portal but then drops out and, after issue, the matter needs to be allocated to the Multi-Track because: -

a. The PI claim is revalued at more than £25,000;

b. The PI claim is within the limit but the overall value is above £25,000 (e.g., when vehicle-related damage is added); or,

a. The case will last more than a day because fraud is alleged or there are other complex issues to try

Partial Answer: Qader & Ors v Esure Services Ltd [2016]

EWCA Civ 1109

• Conjoined appeals (Qader & Khan)

• RTA Portal claims allocated to the MT

• In Qader, costs limited to fixed costs

• In Khan, normal costs held to apply

• PIBA and APIL intervened

Issue: does the fixed costs regime apply to a case which no longer continues

under the RTA (or, by implication, the EL/PL) Protocol, but is allocated to the

MT after issue?

Answer: NO. There was a drafting error. CPR 45.29B (and, by implication CPR 45.29D) should be read as follows: -

“…Subject to rules 45.29F, 45.29G, 45.29H and 45.29J, and for so

long as the claim is not allocated to the multi-track, … in a claim started under the [RTA or El/PL] Protocol…the only costs allowed

are [fixed costs]”

Conclusion: if the claim is allocated to the MT, the prisoners have made it off the

island, across the sea and onto dry land, never to be recaptured by those pesky

fixed costs

CAVEAT

• The Court of Appeal declined to deal with a situation where a claim, having started life in the Protocol, settles for a sum above £25,000

• Natural reading of CPR 45.29B and D, suggests that fixed costs would apply

• LJ Briggs called this an ‘anomaly’ to be addressed by the Rules Committee

• Cue battle over a £250k chronic pain case that settles before allocation after starting life on the Portal …

Master Roberts

Fixed costs are dealt with in CPR Part 45 and at present apply in the types of cases listed in CPR Part 45, namely: (i) RTA cases resulting in bodily injury to any person or damage to property, where the damages are not more than £25,000

(ii) Employment liability or public liability claims, where the damages are not more than £25,000

(iii) Claims in the Intellectual Property Enterprise Court

(iv) Claims brought by HM Revenue and Customs

(v) Costs limits in Aarhus Convention claims

FIXED COSTS IN CLINICAL NEGLIGENCE CASES

4 August 2015: Department of Health launched a pre-consultation

exercise in which it proposed:

A fixed fees regime for clinical negligence cases up to £250,000 in

damages;

A cap on fees for expert reports on liability/causation and

quantum/diagnosis;

No ‘special provisions’ to control behaviour on both sides.

October 2016: Department of Health announced that the

consultation would be for clinical negligence cases worth up to

£25,000, which comprises 60% of clinical negligence claims.

To date the consultation for fixed costs in clinical negligence

cases has not been launched.

Jackson LJ states in his textbook, “The Reform of Civil Litigation”:

“Clinical negligence claims are not so different from all other

claims that they should have their own separate regime in

advance. Such an approach would lead to an unwelcome

Balkanisation of civil litigation.”

November 2016: Jackson LJ was commissioned by Lord Thomas, the Lord Chief

Justice, and Sir Terence Etherton, the Master of the Rolls, to undertake a review

of fixed recoverable costs, to be completed by 31 July 2017.

The Review’s recommendations will help to inform a government public

consultation on reforms to extend fixed recoverable costs to further areas of civil

litigation.

Jackson LJ’s Review of Fixed Recoverable Costs

Terms of reference for the review 1. To develop proposals for extending the present civil fixed recoverable costs

regime in England and Wales so as to make the costs of going to court more

certain, transparent and proportionate for litigants.

2. To consider the types and areas of litigation in which such costs should be

extended, and the value of claims to which such a regime should apply.

3. To report to the Lord Chief Justice and the Master of the Rolls by the 31st July

2017.

Jackson LJ’s lecture (28 January 2016): “Fixed Costs – the time has come” 5.1 The first question. The first question is whether we should be fixing

costs for all civil cases (like Germany and New Zealand) or just for the fast

track and the lower reaches of the multi-track. This is a policy decision for

others. I would favour the latter course (as recommended in my Final

Report), but I acknowledge that some favour the former course.

There are two particular reasons why I favour adopting the latter

course:

(i) Switching to a totally fixed costs regime for all claims, however

large, would be too great a change for the profession to accept,

certainly in the short term. The justice system only functions

because of the high level of support which the profession provides.

(ii) Reform is best done incrementally, so that we can see how it is working out.

That is why (in FR chapter 16) I recommended deferring consideration of fixed

costs in the multi-track until after the implementation of the fast track and IP

Enterprise Court reforms. Those reforms are now largely in place and they are

successful. It is therefore appropriate to move on to fixing costs in the lower

reaches of the multi-track. Once that regime is in place, people can see how it

works and consider whether to introduce a universal fixed costs regime.

5.8 Avoid Balkanisation. If we are moving to a fixed costs regime for the lower

reaches of the multi-track, it is essential that we create a coherent structure. What

we do not want to have is a series of separate grids for different types of cases.

There should be single fixed costs grid for all multi-track cases up to £250,000. In so

far as particular areas of work merit additional costs, the rules can provide

percentage uplifts for specified types of case.

I am aware that the Department of Health is proposing to introduce a

scheme of fixed costs for clinical negligence claims. That would start to

take us down the Balkanisation route. I suggest that a better approach

would be to include clinical negligence claims in an all embracing fixed

costs regime, as proposed above.

Band 1 £25,000 - £50,000

Band 2 £50,001 - £100,000

Band 3 (£100,001 - £175,000)

Band 4 (£175,001 – £250,000)

Pre action 3,250 5,250 8,750 12,000

Issue / statements of case (add 25% if counterclaim)

1,400 2,250 3,750 5,750

CMC 950 1,500 1,500 1,750

Disclosure 1,875 3,000 3,500 5,000

£25,000 - £50,000

£50,001 - £100,000

£100,001 - £175,000

£175,001 – £250,000

Witness statements (add 10% per witness approved by the court over 3)

1,875 3,000 5,000 7,500

Expert reports (add 10% per expert approved by the court over 2)

1,400 2,250 3,750 5,500

PTR 950 1,500 1,500 1,750

£25,000 - £50,000

£50,001 - £100,000

£100,001 - £175,000

£175,001 – £250,000

Trial preparation (add 5% per day for the 6th and subsequent days if trial fixed for more than 5 days)

1,900 3,000 5,000 7,500

Trial (add 5% per day for the 6th and subsequent days if trial lasts more than 5 days)

3,750 6,000 11,000 18,000

Negotiations / ADR 1,400 2,250 3,750 5,500

TOTAL 18,750 30,000 47,500 70,250

Jackson LJ acknowledges the need to build in a system of

regular reviews or index linking to the fixed costs scheme. This

is a feature which has been notably absent from the previous

schemes.

Comment Dangers of a fixed costs scheme:

Single approach for all cases regardless of complexity will lead to many cases being economically unviable to

pursue, thus undermining access to justice and the principle of justice for all.

There are many important cases where the severity of the issue is not reflected in monetary terms, for

example where babies have died as a consequence of negligent care.

The purpose of bringing a claim is dual: to give redress to the family, and also to reduce incidence of harm in

the future by ensuring that lessons are learned.

The success of fixed costs depends upon: 1. The fees being fixed at a level which makes the work viable. If the

fees are fixed at an unviable level, serious issues as to access to

justice arise.

2. Consideration being given as to whether there are exclusions for

claims which are inappropriate for a fixed costs regime, for example

fatal claims of limited financial value or fatal claims involving

representation at an inquest.

Assessment & Recovery

James Arney Temple Garden Chambers

& Master Whalan

Costs Judge, Senior Courts Costs office

ADR & COSTS ADR is gaining recognition as an alternative method

of resolving costs disputes

ADR providers specialised in costs are becoming available

The Association of Costs Lawyers

‘CADR’

ADR & COSTS Benefits of using ADR in Costs Disputes

Control

Accessibility

Cost

Expert Assistance

Creative Settlements

Agreed timelines

Success rates

ADR & COSTS

When should ADR be considered?

At all stages, in all cases.

ADR & COSTS What are the consequences of refusing to engage with ADR in

Costs Disputes?

‘Unreasonable refusal’

Halsey v Milton Keynes Gnl NHS Trust [2004] 1WLR 3002

Carleton & Ors v Strutt & Parker (a partnership) [2008] EWHC 424 (QB)

PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288

ADR & COSTS What are the consequences of refusing to engage with ADR in Costs Disputes?

Lynn v Borneos LLP t/a Borneo Linnels, 30/01/14

Garritt-Critchley & Ors v Ronnan & Ors [2014] EWHC, Judge Waksman QC

Northrop Grumman Mission Systems Europe Ltd v BAE Systems (Al Diriyah C41) Ltd (No.2) [2014] EWHC

Reid v Buckinghamshire Healthcare NHS Trust [2015] EWHC B21 (Costs)

Bristow v Princess Alexandra Hospital NHS Trust & Ors [2015] EWHC B22 (Costs)

Various Claimants v Mirror Group Newspapers [2016] EWHC 1894 (Ch)

ADR & COSTS

What constitutes a refusal?

Carleton & Ors v Strutt & Parker (a partnership) [2008] EWHC 424 (QB)

PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288

ADR & COSTS

If the preferred course is refusal

Detailed letter based on the Halsey factors.

HOURLY RATES Key Cases on reasonability of instructing a London firm

Anthony Ryland Griffiths & 164 Ors v Solutia UL Ltd [2001] EWCA Civ 736

The need to take account of the particular context of the particular clients

Gazley v (1) Wade (2) News Group Newspapers Ltd [2004] EWHC

2675 (QB)

A London specialist firm is not always necessary to obtain adequate expertise

A v Chief Constable of South Yorkshire [2008] EWHC 1658 (QB)

The difference between advantage and necessity

HOURLY RATES Key Cases on reasonability of instructing a London firm

Royal Devon & Exeter NHS Foundation Trust v Margaret Acres [2013] EWHC 652 (QB)

Where a local firm had declined to act, on the merits of the claim, the use of a London

firm to pursue the claim had been reasonable.

Kelly v (1) Hays Plc (2) Hays Specialist Recruitment Ltd [2015] EWHC 735

(QB)

Aspects of complexity in a case which is otherwise straightforward may justify some

enhanced rates, but are unlikely to justify the instruction of a different type of firm

than would have been instructed in the absence of complexities.

HOURLY RATES Cost Office Guidelines

How are they to be used?

G (A Child by Her Mother & Litigation Friend M) v Kingston upon Hull City Council Case No 9KH 02927, 18 September 2013

The SCCO can be used as a starting point or crosscheck in detailed assessments, but should not be applied strictly.

(1) KMT (2) KAY (3) MEY (4) MJY v Kent County Council [2012] EWHC 2088 (QB)

The factors listed in CPR r.44.5(3) are applicable to London cases as to any other case.

HOURLY RATES Cost Office Guidelines

How are they to be used?

Higgs v Camden & Islington Health Authority [2003] EWHC 15 (QB)

SCCO Guidelines are not supposed to replace the experience and knowledge of those familiar with the local area and the field generally.

CFAS, SUCCESS FEES & HUMAN RIGHTS

Representative Claimants & Ors v MGN Ltd [2016] EWHC 855 (Ch)

The conditional fee agreement regime, which allowed the recovery of success fee uplifts and “after the event” insurance premiums in defamation and privacy cases, is not incompatible with ECHR art.10.

Thank you for listening!

Questions & Debate

All speakers, moderated by Simon Browne QC

Closing Remarks

Simon Browne QC

187

Temple Garden Chambers is very proud to be supporting the work of Royal

Trinity Hospice throughout 2017

If you would like to make a donation, details will be available within the

feedback email you will receive tomorrow

Please join us

for a drink.