2018 – A year In Costs

In 2017, four members of our 4 New Square Costs Team set themselves a challenge to come up with a calendar of key costs decisions in the last year. 1 per month, 100 words max per case. So here, back by popular demand, is our calendar of 2018 in costs.

January

Dial Partners LLP v Eastern Airways International Ltd Lawtel 18.01.18.

The Claimant's solicitors had been acting under a DBA, notified to the Defendant, entitling them to costs of £250,000. 2 weeks before trial they switched to a CFA without notifying the Defendant, thus claiming costs of over £500,000. Master James held that the Claimants were not limited to the costs pursuant to the DBA, as settlement had not been a near certainty at the time of the switch, per Kellar v Williams [2004] UKPC 30, and the switch was not unreasonable in itself, per Kai Surrey [2016] EWHC 1598.

Shail Patel of 4 New Square appeared for the Defendant.

February

Herbert v HH Law Ltd [2018] 2 Costs LR 261.

In a solicitor client assessment the District Judge had reduced a success fee from 100% to 15%. Soole J rejected the solicitors' argument that the client had approved the 100% success fee by agreeing the CFA: there had been no informed approval because the client had not been advised that the solicitors applied a 100% success fee on all post-LASPO CFAs irrespective of risk level. The judge also upheld the District Judge's finding that the ATE premium wasinn a solicitor's disbursement which should have been included in the bill, and was therefore correctly excluded from the cash account.

March

Nash v MOD Lawtel 16.03.2018.

A costs management order had been made. In a detailed assessment Master Nagalingam reduced the hourly rates for the incurred costs in the budget. However he declined to reduce the rates in respect of estimated costs, as that would risk double jeopardy after the court had already set a budget for each phase. Similarly the court had already determined what estimated costs were proportionate for each phase. However, it remained open to the paying party to argue that the sum of the overall assessed incurred costs, plus the budgeted costs, was disproportionate.

April

Williams v SS for Business, Energy & Industrial Strategy [2018] EWCA Civ 852.

A claimant unreasonably failed to follow a Pre-Action Protocol which allowed for the recovery of fixed costs and disbursements only. The Court of Appeal held that the conditions in CPR 45.24 which allows a court to limit a claimant to fixed costs were not...