New month. New term. New Legal Year. New Lord Chief Justice. New President of the Supreme Court. Exciting times!
First, apologies for the week-long delay in putting up the Online Cases which we feature below. The Costs Law Reports conference took its toll. More about this later!
For those who attended the swearing-in of the new Lord Chief Justice in his court at 9 am on 2 October 2017, there was an unrivalled display of judicial panoply on show, that in this world, is only to be found in the Royal Courts of Justice at the Opening of the New Legal Year. On the Bench in ceremonial court dress (as in top table in the court) were seated the Master of the Rolls, the President of the Family Division, the Vice President of the Court of Appeal and the Lord Chancellor as they observed Lord Justice Burnett cease being Burnett LJ, and on making his oath as Ian Duncan Burnett, become the Lord Chief Justice of England and Wales, at the ripe young age (for a LCJ) of 59.
In front of him, Sir Ian would have seen a sea of red and white, being the long-bottomed wigs and ceremonial robes of the judges of the High Court. To his left, right and behind him, all standing, were the brethren (encompassing all genders) of judges from which he had just departed, namely the Lords Justices of Appeal, their gold braid gowns distinguishing them from the puisne judges seated in the well of the court. A curious tradition: the High Court judges all sit down whilst the LJs all stand up! There was then another tradition, a salve of welcome by Sir Terence Etherton MR, to be followed by the Lord Chancellor, David Lidington (no doubt to the relief to the assembled company that the non-judge friendly Liz Truss had received her marching orders from Theresa May following the general election), and concluded with further tributes from the Bar and the Law Society.
Much was made of Sir Ian’s relative youth and the fact that he was the second youngest Lord Chief since the post was created in 1875, so it was said. Possibly a bit of diplomatic airbrushing? Not then the moment to point it out, but, in fact, there have been Lord Chief Justices for hundreds of years going back to William de Raley in 1234, albeit not in the mould of the current holders of the post. One such younger Lord Chief was none other than the first Baron Jeffreys, also known as the “Hanging Judge” who presided over the Bloody Assizes. His tenure lasted from 28 September 1683 until 23 October 1688 and he clearly had the ear of the King, as Judge Jeffreys was then promoted to become Lord Chancellor at the ripe old age of 43! Unfortunately (or perhaps fortunately for those to whom he dispensed justice), Judge Jeffreys died the following year so already our new Lord Chief has outlived him by over 15 years. Long may it last: Sir Ian’s appointment was greeted with well-deserved acclamation.
Likewise over at the other place: Parliament Square and the Supreme Court where Baroness Brenda Hale DBE was making her own oath as the new President of the Supreme Court in succession to Lord Neuberger of Abbotsbury. Having been the first Lady Justice of the Supreme Court, Lady Hale’s appointment has also been well received, albeit that she can only serve for a further three years. Another curiosity. Her predecessor had retired on September 30, or perhaps more accurately, had “been” retired, on the grounds of age, namely the imminence of his 70th birthday. His successor, Lady Hale, is actually two years Lord Neuberger’s senior but due to her longevity as a judge, she is not subject to the compulsory judicial retirement age of 70, and accordingly can continue until her 75th birthday. With any luck, that fact will draw into sharp focus the issue of whether, in this day and age, Judges should be put out to grass at 70. Certainly the loss of Lord Neuberger is very great. Like Lord Denning, he was a gifted judge, with much still to give. Retirement for him at three score years and ten is much too early.
Feet now firmly back on the ground in the world of costs! We have held our fourth conference (on September 28). We are very grateful to the speakers who gave up their valuable time to talk to our 125 delegates at our sell-out event (sold out in August) in the prestigious offices of Eversheds Sutherland, to whom we extend our special thanks, especially to Glenn Newberry. Of our speakers, most impressively, our keynote, Sir Rupert Jackson, spoke without notes, without hesitation, repetition or deviation about his report into fixed costs, not for one minute, but exactly thirty. A hard act to follow but Professor Dominic Regan managed to do so with a lively talk, as always, about Part 36 in costs, the importance of making offers and the perils of not doing so. After him came Alexander Hutton QC. For the third year running, the lot fell to Alex of dealing with the “New” Bill, the implementation of which the profession has been awaiting for, it seems, absolutely ages. Now D-Day is fixed in stone, namely 6 April 2018. Phew! Next year we can let Alex off and invite him to speak about something else.
Nicholas Bacon QC had a salutary tale to tell about the Solicitors Regulation Authority’s interest in what it calls “gross overcharging”. In bringing delegates up to date with recent developments in costs, Nick mentioned a matter involving his trying to save the skin of the solicitors, in which 67% of the costs were recovered, leaving 33% unrecovered and for the client to pay, albeit over £1m! In the SRA’s books, that is tantamount to overcharging and unprofessional conduct, so it is asserting! One asks rhetorically, where does that leave the solicitors in cases such as BNM v NGN (due in the Court of Appeal today) and May v Wavell Group where the application of the Jackson inspired proportionality rule under CPR 47.5(3) meant that the bills were reduced by 40% and 80% percent respectively. Will those firms be up before the beak as well?
Our next speaker Roger Mallalieu will soon be able to tell us the answer, as he has been involved in most of the costs cases that have reached the Court of Appeal in recent times. In an illuminating and crystal ball gazing talk, he told delegates about how important proportionality now is in costs litigation and how it can be avoided by using mediation in costs as an alternative. Good idea. No proportionality rule, no automatic sanctions, and no need for relief from sanctions in mediation!
After the Short Adjournment, Master Jennifer James was in sparkling form, speaking as she did in the graveyard spot. Not only did she keep delegates awake, but also fully entertained with amusing anecdotes from the Masters’ corridor, tempered with very practical advice about how not to embark upon a detailed assessment if you want to achieve a good result. Following her, Master Richard Roberts gave us the benefit of his unrivalled experience in costs budgeting. Although the court is not supposed to carry out a detailed assessment at the budgeting stage, it is plain that what happens at the costs case management conference is of vital importance. Get your budgeting wrong, and you will be in real trouble in recovering your costs at the end of the day. Much helpful and important advice here from the Master. And bringing up the rear, last but very much not least, the day’s events were concluded by the Senior Costs Judge who brought us up to date with developments in the Senior Courts Costs Office. In doing so, Master Gordon-Saker forewarned delegates about the then imminent swearing-in of Master Prinz Nagilingham, who has the unique qualities of not only being very youthful, but also of being the only costs judge who has ever drafted a bill and prepared points of dispute! Clearly an excellent appointment.
So that is it until next year. The Early Bird price of £195 plus VAT holds good for those who wish to book their seat for the fifth conference fixed to take place on 27 September 2018. When booking, please let us know if there are any particular topics you would like speakers to cover. We are sincerely hoping that one topic that will NOT be on the agenda will be the electronic bill. No disrespect to Alexander Hutton QC, who has put his heart and soul into drafting it, but by the date of the conference, the bill will have been mandatory six months and hopefully we can put something else on the agenda in its place.
The headnotes and full texts of the cases below are available to online subscribers at www.costslawreports.co.uk. Follow Costs Law Reports on Twitter to be notified of new cases as soon as they are published.
New cases this month
Awuah and Others v The Secretary of State for the Home Department  4 Costs LR 615: Wasted costs orders in the First-tier Tribunal: powers of the tribunal to make against a Home Office Presenting Officer.
Jordan v MGN Ltd  4 Costs LR 687: Part 36: award of costs upon late acceptance of Part 36 offer immediately before trial; indemnity basis costs.
R (UNISON) v Lord Chancellor  4 Costs LR 721: Access to justice: validity of charging fees in the employment tribunal and the employment appeal tribunal: whether fees imposed by the Lord Chancellor were unlawful because of their effects on access to justice.
Hussain v Chartis Insurance UK Ltd  5 Costs LO 555: Fixed costs under CPR 45.18(2)(c) in a claim funded under a conditional fee agreement: circumstances in which it is appropriate or possible to obtain an increase in the normal success fee payable where the damages are likely to exceed £500,000.
Pinisetty v Manikonda and Another  5 Costs LO 565: Extension of time for appeal; relief from sanctions; application required even where agreement of other party given.
Dunhill v Hughmans (a Firm)  5 Costs LO 589: Appeal against an order refusing to award the appellant the costs of her application to set aside former solicitor’s statutory demand.
R (Kaur and Another) v The Secretary of State for the Home Department  5 Costs LO 615: Application for review of the dismissal of a claim for judicial review on account of the failure to lodge required documents timeously: consideration of the Denton factors and avoidance of the breach by making an in-time application under para 2.7 CPR PD 23A.
Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd  5 Costs LO 631: Indemnity costs; court’s discretion as to costs where a party had pursued a claim for repudiatory breach of contract knowing that there were no grounds for it.
Thomas v Hugh James Ford Simey Solicitors  5 Costs LO 643: Extent to which solicitors acting in high volume, fixed costs schemes for low value personal injury cases are under a duty to advise about heads of claim which the client has said he does not wish to pursue.
Montpelier Business Reorganisation Ltd v Armitage Jones LLP and Others  5 Costs LO 659: Non-party costs orders; jurisdiction of the court to order costs to be borne by someone not a party to the litigation under s 51 Senior Courts Act 1998.
Royal Society for the Protection of Birds and Others v Secretary of State for Justice and Others  5 Costs LO 691: CPR 45 Section VII; costs limits in Aarhus Convention claims; judicial review.
Other recent cases
Frade and Others v Radford and Another  4 Costs LR 583: Rectification of conditional fee agreements: application for permission to appeal against ruling that a CFA cannot be rectified after the costs order has been made.
Briggs and Others v First Choice Holidays  4 Costs LR 595: Conditional fee agreements: reasonableness of decisions by disappointed holiday makers to enter into CFAs rather than to make use of an ABTA mediation scheme on the basis that mediation would have resolved the claims for significantly less; entitlement of a judge to have a change of mind after circulation of draft judgment but before sealing of the order.
Napp Pharmaceutical Holdings Ltd v Dr Reddy’s Laboratories (UK) Ltd and Others  4 Costs LR 647: Costs budgeting under CPR 3.12: jurisdiction of the court to order costs budgeting in proceedings worth in excess of £10 million.
Re R (Closed Material Procedure: Special Advocates: Funding)  4 Costs LR 653: Closed material procedure within public law (Part IV Children Act 1989) in anonymised family proceedings: liability for the payment of the costs of a Special Advocate.
Capita (Banstead 2011) Ltd and Another v RFIB Group Ltd  4 Costs LR 669: Principle to apply where the claimant had been awarded 50% of the amount claimed, but the majority of costs had been incurred in relation to an issue upon which the claimants had lost; exercise of discretion.
Catalano v Espley-Tyas Development Group Ltd  4 Costs LR 769: Qualified one-way costs shifting (QOCS) and CPR 44.17; no QOCS protection where a losing party has entered into a pre-commencement funding arrangement.
Stevensdrake Ltd (t/a Stevensdrake Solicitors) v Hunt (Liquidator of Sunbow Ltd)  4 Costs LR 781: Conditional fee agreements; validity of agreement in insolvency proceedings in a failed action where summary judgment had already been awarded against the liquidator in respect of counsel’s fees.
Jabang v Wadman and Others  4 Costs LR 807: CPR 44.2, court’s discretion as to costs where a claim succeeds against only one defendant; Bullock order to indemnify claimant against liability to pay defendants’ costs of unsuccessful claim.
Mott v Long and Long  4 Costs LR 817: Relief from sanctions under CPR 3.9: costs budget filed ten days late due to IT problems: whether relief should be given so that the defaulting party be permitted to recover budgeted costs not limited to applicable court fees under CPR 3.14.