Costs Judge Gave Inadequate Reasons For Selecting 20% Margin Above Costs Estimate: Morgan J. held that a costs judge had given inadequate reasons for selecting a 20% margin over a costs estimate as the limit on the costs recoverable in a situation where he had been required to determine upon detailed assessment the reliance that had been placed on that estimate. The costs judge had failed to address two relevant considerations: (i) what level of costs would have caused the client to change solic ...
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Retrospective CFA Held to Not Be Contrary to Public Policy: Christopher Clarke J. held that there was no prohibition on CFAs being retrospective and no reason per se why a retrospective success fee was contrary to public policy. The Court had the ability to disallow or reduce retrospective fees that were unreasonable. If that were wrong then there was no reason why the Court could not delete the success fee leaving the obligation to pay unaffected. There was nothing in the statutory provi ...
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Costs of Attending Inquest Capable of Recovery in Subsequent Civil Proceedings
It was held on appeal that the costs of attendance at an inquest were not incapable of being recoverable as costs incidental to subsequent civil proceedings. Where a solicitor did not attend an inquest, he might well be able to claim as incidental to civil proceedings the costs he incurred prior to the commencement of proceedings in relation to the collection of evidence from witnesses who had given evidence at the inquest; indeed, it could be envisaged that in many situations such a course woul ...
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Trial Judge Could Not Direct Costs Judge to Paragraphs in the Judgement The Court of Appeal held that an Order given by the trial judge in which he directed the costs judge to assess costs by reference to six specified paragraphs in his judgment could not stand. As a matter of practise, it was undesirable for judges to enter into forms of order that could not stand on their own. In any event, the judge had failed to respond to an issue raised in relation to the construction of a consent ...
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Solicitor Has an Interest if a Reasonable Person Thinks it Would Affect Their Advice to the Client: The Court of Appeal held that, for the purposes of Regulation 4 of the Conditional Fee Agreements Regulations 2000, a solicitor had an interest if a reasonable person with knowledge of the relevant facts would think that the existence of the interest might affect the advice given by the solicitor to their client. Whilst membership of a panel of a claims management company could constitute such an ...
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Judge Entitled to Deny Successful Party Costs of Litigation: The Court of Appeal held that although it was unusual to deny a successful party the whole of its costs of a trial, in the circumstances the trial judge had not misdirected himself as a matter of law or failed adequately to reflect his reasoning in the judgment. The Respondent had raised a number of issues on which it had failed altogether and on some of those it was possible to take the view that the evidence was so inadequate that th ...
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Application for Non-Party Costs Should be Dealt With by Trial Judge: Andrew Smith J. held that the trial judge should hear an application for a non-party costs order unless there were compelling reasons for him not to do so. This was so even though the judge had expressed a view about the conduct of the non-party. It had not been wrong of the judge to raise the possibility of an application for a non-party costs order. Even if the judge had erred in doing so, a fair minded and informed observer ...
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Court of Appeal’s decision in Carver was of General Application: Jackson J. held that the Court of Appeal’s decision in Carver v. BAA Plc was of general application in relation to how a court ought to approach the issue of costs in circumstances where one party had made an offer that was nearly but not quite sufficient and the other party had rejected that offer outright without any attempt to negotiate. The present case was a complicated commercial dispute in which each party had been advancing ...
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No Wasted Costs Where Material Produced as soon as its Significance Realised: The Court of Appeal held that a Wasted Costs Order against a solicitor was not justified where material had been disclosed as soon as its significance became obvious. Although the disclosure given by the solicitor may have been defective, the issue was whether he was clearly and obviously in breach of his duty to the court to ensure that the client discharged his duty to give proper disclosure; no clear picture could e ...
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Clear Offer to Settle Bill Could be a ‘Special Circumstance’: It was held on an appeal to the Queens Bench Division that a clear without prejudice offer to settle a bill of costs with its client, made in proper time and in proper form, was capable of being a special circumstance that could reverse the statutory presumption under section 70 of the Solicitors Act 1974 that the firm were liable to pay the costs of the detailed assessment proceedings. However, in the instant case, there were no spec ...
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