HULLOCK V EAST RIDING OF YORKSHIRE COUNTY COUNCIL (2009) EWCA Civ 1039
Defendant Local Authority appealed against an Order for a costs liability where the main dispute between the parties was the Claimant’s exaggerated claim for Special Damages in a personal injury action. Liability was admitted, contributory negligence was alleged and the only real issue was one of Quantum. The Claimant’s claim for Special Damages included a significant claim for continuing care and assistance on the basis of limited mobility. This was disputed and video surveillance was served whereupon a much reduced Schedule of Special Damages was submitted with the claim for future care being abandoned. The Defendant Authority had been ordered to pay 50% of the Claimant’s costs.
The grounds for the Appeal were cited as the Judge had erred in the exercise of his discretion in that he had failed to correctly identify the successful party; he had failed to consider the effect of an Interim Payment and had not taken into account the finding of the Claimant’s exaggeration.
The Court of Appeal held that it could only intervene if the Judge had erred in principle in his approach or had failed to properly exercise his discretion. It stated that the identity of the successful party was only the starting point when considering the application of the general rule under CPR 44.3 (2) (a). The appropriate exercise of the Judge’s discretion therefore was to identify the real issue between the parties and to reflect this in any Order made. The real issue here was the exaggerated claim for Special Damages and this should have been central to the determining of who should pay the costs. The Court of Appeal concluded that the Judge had failed to properly recognise and give effect to the importance of the finding of the Claimant’s conduct and that the real winner had to have been the Defendant Authority. The correct Order should therefore have been that the Defendant should pay the Claimant’s costs up to the date of the Interim Payment with the Claimant to pay the Defendant’s costs thereafter even though the Interim Payment could not be treated as the equivalent to a Payment In or Part 36 offer. Whilst a Claimant could assume that he/she would not face a cost penalty simply by deciding to continue with the action after the Interim Payment had been made in the absence of a Part 36 offer or Payment In, the Court should take into account the Defendant’s willingness to make such a payment when considering the relevant factors in determining who should be liable for the costs.
Appeal hearing before MacDuff J following the making of a wasted costs order against the Appellant’s solicitors.
The Appellant had brought a claim in the county court against his former employers, the Respondent. The case had been unsuccessful and the Appellant had been ordered to pay the Respondent’s costs, which the Appellant’s solicitors (LW) had been ordered to pay as wasted costs. The wasted costs order had not been opposed. (more…)
PermalinkPractitioners will have noticed it been a somewhat quieter than usual time in the costs world recently, with little by the way of Court of Appeal decisions or test cases (the last of which being the ALP test cases in December last year).
Paying parties seem more content to fight it out at County Court level over the costs of Pre-Action Disclosure applications and ‘premature issue’ with little by the way of guidance in sight. Although in respect of the former, following early successes for Respondent’s to the applications, more and more courts are holding that the Conditional Fee Agreement covers such costs upon hearing the arguments fully.
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With effect from 6th April 2009 there will be considerable amendments to the Civil Procedure Rules (CPR) and the Practice Direction - Protocols will be replaced by Practice Direction - Pre-Action Conduct. A summary of the changes and their effect is below.
The main changes for practitioners will be the amendments to the fast track limits and the specific provision for costs capping orders.
The amendments to the fast track limits will only apply to claims issues after 6th April 2009 and are not retrospective. However, the new costs capping provision will apply to all cases. (more…)
PermalinkCosts hearing before Coulson J following the Defendant’s late acceptance of the Claimant’s Part 36 offer. The main issue to determine was whether the costs should be assessed on the standard or indemnity basis.
In January 2008 the Claimant made a Part 36 offer to settle his claims in the sum of £10,250,000. The Defendant rejected the offer and the matter proceeded towards trial, returnable in April 2009. However in January 2009, the Defendant advised that he wished to accept the Claimant’s Part 36 offer out of time. The Claimant agreed however contended that he should have indemnity costs from the date of the expiration of the offer, whilst the Defendant maintained that only standard basis costs were recoverable. (more…)
PermalinkAppeals from decisions by Master Hurst and Deputy Master Rowley before Davis J, with Master Wright and Robert Carter as assessors, to allow the recovery of fees for attending an inquest.
Both claims against the Home Office arose as a result of a breach of duty of care to prisoners who had committed suicide during their incarceration after the prison service failed to deal adequately with their addiction to drugs. In both cases, exceptional public funding was granted and Counsel attended the inquests and made submissions to the inquest. Following the inquests, successful civil proceedings were bought for damages by the Claimant’s (as representatives of the deceased). As part of their claims for costs, substantial fees of Counsel were included for attending the inquests (more…)
PermalinkDetailed assessment of the Claimant’s costs before Master Rogers. The Claimant was an infant, whose claim for minor injuries settled for £500.00.
The Claimant’s solicitor settled the matter by way of parental indemnity. The Defendant contended that small claims costs applied, the Claimant contended that as this was a infant, small claims costs could not apply. The Defendant relied on Keklik –v- Coles before HHJ Stewart QC that were Part 8 proceedings are not issued for approval the matter should be dealt with as tough on the small claims track. The Defendant also submitted that even where approval takes place the reasonable costs would also be limited to small claims costs. (more…)
PermalinkDetailed assessment of the Claimant’s bill of costs before Master Hurst. The Claimant’s claim was pursued via The Accident Group (TAG) scheme.
The Claimant entered into two CFA’s the first in July 2001 and following English –v- Clipson entered into another in August 2002. During the course of the claim the Claimant Lacked capacity and his sister acted as his litigation friend. The Defendant contended that the 1st CFA was unenforceable for want of compliance with Regulation 4, the 2nd CFA was either never completed or unenforceable in any event, if the 2nd CFA was in force, nothing is payable under the 1st CFA, the retainers with the Claimant came to an end as a result of lack of capacity and that there was no enforceable retainer with the litigation friend thereafter. (more…)
PermalinkDetailed assessment of the Claimant’s insurance premium only before Master Haworth.
The Defendant contended that the premium was unreasonable because liability had been admitted at the time the same was taken out. In the alternative, the Defendant submitted the premium was excessive. The Claimant contended that there were a number of live issues which were a real risk and not illusory. The Claimant referred to Avril –v- Boultby in support of their position. The Claimant contended that the court was not in a position to assess the risks better than an insurer. The Defendant also sought disallowance of the preparation of the bill of costs together with its associated success fee as unreasonable. (more…)
PermalinkDetailed assessment of the Defendant’s bills before Master Hurst. The Claimant contended that the bills should be disallowed or reduced because the solicitors had acted contrary to her instructions.
The Claimant came to instruct the solicitors in respect of an appeal, which was also being cross appealed by her husband. The solicitors advised strongly that her appeal should not be pursued, but the Claimant provided clear instructions that it should regardless of this advice. The solicitors had thought they were instructed in respect of both appeals. (more…)
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