The principles relating to costs capping orders laid down in King v Telegraph Group Ltd (2004) EWCA Civ 613 , (2005) 1 WLR 2282, a defamation case, were not applicable to all litigation. In the instant case the fact that the claimant was instructing solicitors under a conditional fee agreement without after the event insurance cover was not enough in itself to justify a costs capping order being made.
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The judge had taken into account all relevant factors when awarding interest on indemnity costs and had correctly exercised his discretion in the level of interest awarded.
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It was not appropriate to make a wasted costs order against solicitors who had acted for the claimant in an action that had been discontinued. The defendant had not made out an allegation that no reasonably competent solicitor could have concluded that the claimant had any realistic prospect of establishing that she had been under a disability for limitation purposes during the relevant period.
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Fees charged by medical reporting agencies for supplying medical reports and records were recoverable as disbursements under the CPR r.45.10(2) provided that they were reasonable and proportionate.
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Costs of amendment applications. Under the CPR the costs of any amendment application that ought to have been consented to would be visited against the opposing party. It behoved parties in litigation to be sensible about applications by the other side and not unreasonably refuse.
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A claim alleging that the second and eighth defendants had participated in a conspiracy to defraud had been sufficiently pleaded and it would not be appropriate to strike it out.
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The Conditional Fee Agreements Regulations 2000 reg.3 required a Conditional Fee Agreement to specify how much of the percentage increase in a success fee related to the cost of the postponement of payment of solicitors' charges and disbursements. The words "if any" in reg.3(1)(b) of the Regulations did not mean that if the deferral element was nil there was no need to mention it.
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A conditional fee agreement that provided for a 100 per cent success fee and payment of a bonus in the event that the client recovered damages in excess of a certain amount was in clear breach of the Courts and Legal Services Act 1990 s.58(4). A subsequent deed of variation was ineffective to rectify the situation and severance would not accord with either the statutory framework laid down for CFAs or with the correct approach to public policy.
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Costs order against publicly-funded litigants. A costs order was made against publicly-funded litigants where, but for costs protection, the court would have made an order against them in the context of an application under the Access to Justice Act 1999 s.11(1). As there was sufficient information, the amount they were ordered to pay was nil.
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Exceptional case of recovering costs as part of damages awarded. It would only be in an exceptional case that costs, ordered to be paid by the claimant to the defendant in the course of a negligence claim by the former against the latter, could be recovered by the claimant from the defendant as part of the damages awarded to the claimant against the defendant in the same claim.
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