The months of August and September are the Long Vacation during which the High Court and Court of Appeal do not sit. This year the vacation runs from August 1 until October 2 when the new legal term will commence with the traditional service at Westminster Abbey, followed by the Lord Chancellor’s breakfast at Westminster Hall.
Long Vacation is also holiday time for your Joint Editors, so this is a short Bulletin whilst we take a break from reading scores of judgments about costs we have to consider before they are summarised and published in the printed edition of Costs Law Reports or Online where they can be easily accessed. That said, it is not all buckets, spades, sea and sand. Whilst there is always a rush to deliver judgments by the end of term, behind-the-scenes, the judges are still hard at work writing reserved judgments and preparing for cases listed in the autumn, so invariably “handing-downs” continue throughout the vacation. As a result, we are always busy at Costs Law Reports in addition to which preparations for the Conference on September 28 are in full flow.
The Conference is now a sell-out. Indeed, the last ticket was sold last week, over a month before the Conference is due to be held. For those who have now missed out on this year, we will be advertising “Early Bird” offers for next year’s Conference in the late autumn, which will take place on 27 September 2018: for those who have not missed out, the following is a summary of what the 124 delegates can look forward to.
The Keynote speech will be given by Sir Rupert Jackson. Due to the vagaries of the judicial appointments system (this is a reference to the fact that Lord Neuberger is stepping down as President of the Supreme Court on the grounds of age, only to be replaced by Lady Hale, who is two years his senior!), Sir Rupert must retire when he reaches his 70th birthday early next year, so this will be one of his last major speeches as a serving judge. In view of the very recent publication of his report into Fixed Costs, what he says will be contemporary, topical, relevant and, as always, thought-provoking.
Professor Dominic Regan’s contribution this year will be on Part 36, insofar as it relates to costs in provisional and detailed assessment. Rule changes effective from 1 April 2017 have meant that the making of timely and effective Part 36 offers in costs proceedings have assumed an importance which never existed before that date, or, indeed, under Order 62. For receiving parties, beat your own Part 36 offer and all the goodies under CPR 36.14(3) are available. For paying parties, make no offer and you are condemned to paying the costs of the costs proceedings under CPR 47.20, but make an effective offer and you will at least give yourself a fighting chance of not having to pay the costs of the assessment if the receiving party recovers less than the offer at the hearing. Indeed, you might even achieve an award in your favour of indemnity costs from the date that the offer should have been accepted. Professor Regan will apprise delegates of the tricks of the trade under Part 36.
Roger Mallalieu has long been held in high esteem as a senior junior by those who instruct him, and by the Bench before whom he appears regularly in costs matters. His talk will focus upon the difficulties created by the “new” proportionality rule under CPR 44.3(5) and will alert delegates to the guidance (or lack of it), currently available, as we await the hearing of the appeal in BNM. The lack of consistency with which the rule continues to be applied has created so much uncertainty that Roger’s talk will also focus upon mediation in costs, which provides all the certainty that CPR 44.3(5) does not. As an accredited mediator and panel member of Costs Alternative Dispute Resolution (CADR), Roger will give an insight into how costs mediation is effective in avoiding the perennial question at detailed assessments “how is the proportionality test going to be applied by the particular judge we have today: will it save us or sink us?” In costs mediation, there is no proportionality rule and the outcome is always within the control of the parties and not the court. Roger will explain all.
As a member of the Committee advising the Ministry of Justice about the implementation of the electronic bill to replace the traditional (and to be lamented by many) paper bill, no one knows more about the subject than Alexander Hutton QC, its eponymous chairman. It had been expected that the new bill would become mandatory in all courts three days after the Conference had been held, namely on 1 October 2017, but for reasons which Alex will explain, the date has been put back until 6 April 2018. Thereafter, the paper bill will not be accepted in any court in England and Wales, save for work undertaken until that date, so it is possible that for a period, there will be hybrid bills, part paper, the rest electronic. How that will work and how solicitors should be preparing for E day next April in terms of recording their time are matters key to all lawyers who wish to run efficient and profitable practices. Alex’s answers will have delegates hanging on his every word.
“A day in the life of a costs judge” is possibly not something to which members of the legal profession routinely give much thought, but if they are involved in costs, we think that they should. The reason: there is little purpose in winning a case for your client, if all that good work is then thrown away because you fall over the cliff when it comes to sorting out the costs. How often have we seen bills savaged on detailed assessment or disallowed completely (see for example McDaniel v Clarke  6 Costs LR 963 and Cox v Woodlands  3 Costs LO 327) because the lawyers “got their costs wrong”, so either went unpaid, or the client had to dig more deeply into his or her pocket to pay them than should have been the case? The best way to avoid disaster at detailed assessment? Listen to Master Jennifer James who will enlighten delegates about how to prepare for assessments, whether paying or receiving, whether it be in terms of how you present the papers (or how you don’t if it is an electronic assessment) or indeed, how you should address the Master when appearing as an advocate. As the first costs judge of her gender following scores of male taxing masters and costs judges, Jennifer is, truly, in a unique position to do so.
If a name was to be written down representative of all the major costs cases over the past 20 years argued by members of the Bar, as co-editors, we would wager with anyone unwise enough to take that bet that that name would be Nicholas Bacon QC. During the first “costs war” in the noughties, Nick appeared in virtually all the ground-breaking cases, and he has continued to do so since the publication of the Jackson Report into civil costs, which, as Lord Neuberger predicted, would require a number of rulings by the Court of Appeal whilst the reforms bedded in. To bring us up to date with recent case law and what awaits the profession, Nick is as close to the legal coal face as anyone would wish to be, having served for many years on the Rule Committee and currently holding briefs to appear in the High Court and above in landmark costs cases listed in the Michaelmas term and beyond.
The words “costs budgeting” still sends a shiver down the spines of many practitioners, and understandably so, given the conflicting guidance and inconsistencies to which it has given rise (remember Sarpd Oil which required a rule change to reverse what the Court of Appeal had said). Is costs budgeting really “light touch” at the Case Management Stage, with the real battle about the costs still be fought at detailed assessment or is it the opposite: what you gets at the CMC is what you gets at the detailed assessment, ticked through as a formality by the costs judge? Who knows? Master Richard Roberts does, he being the Master on the Queen’s Bench corridor who has carried out as many costs budgeting hearings as anyone. Having also been a member of the common law bar in his previous life, he is well versed in how much a case should (or should not) cost to take to trial and he will be our penultimate speaker of the day.
To draw matters to a close, we are happy to welcome Senior Costs Judge Andrew Gordon-Saker once again. He has no allocated topic save that in his inimitable way, he will bring us to date with the latest news about the world of costs and will undertake a bit of crystal ball gazing: what rule and practice directions will be required in order to facilitate the use of the electronic bill in all courts from 6 April 2018? When, if ever, will the Senior Costs Office become paperless? What other changes can practitioners expect in 2018 and beyond? Having sat with the Court of Appeal in several landmark cases over the past twelve months and with his finger firmly on the costs pulse, no one is better placed to inform us than the Senior Costs Judge.
We look to welcoming our speakers to the Conference and thank them in advance for giving up their valuable time to address the 124 delegates who we also shall be glad to see in three weeks’ time. With such a line up we are confident that we will share a stimulating, interesting and, we hope, also a sociable day spent with friends, colleagues and fellow practitioners.
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
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.
Other recent cases
Jeffreys v The Commissioner of Police for the Metropolis  4 Costs LO 409: Qualified one way costs shifting (QOCS); whether a losing claimant is entitled to QOCS protection in respect of claims not made exclusively for damages for personal injury: application of CPR 44.16(2)(b).
Asghar and Another v Bhatti and Another  4 Costs LO 427: Costs budgeting: budgeted costs limited to applicable court fees under CPR 3.14 on account of failure to file a costs budget under CPR 3.13; whether on an application to revise the budget, the limitation remained where the estimated trial date had doubled after the budget had been fixed.
Gladwin v Bogescu  4 Costs LO 437: Failure to obtain relief from sanctions under CPR 3.9 following failure to serve a witness statement: court’s powers to strike out claim upon application being made for relief where the default had caused the trial to be adjourned.
Lakhani and Another v Mahmud and Others  4 Costs LO 453: Failure to obtain relief from sanctions under CPR 3.9; budgeted costs limited to applicable court fees under CPR 3.14 where the defendant had been one day late in serving a costs budget under CPR 3.13.
Howe v Motor Insurers’ Bureau  4 Costs LO 473: Qualified one-way costs shifting: whether QOCS applies to a claim made under the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003.
R (Gourlay) v The Parole Board  4 Costs LO 489: Judicial review: whether the established practice of the High Court, to make no order for costs for or against an inferior tribunal or court which plays no active part in a judicial review of one of its decisions, extends to the Parole Board.
Kupeli and Others v Atlasjet Havacilik Anonim Sirketi  4 Costs LO 517: Conditional fee agreements: whether the absence of cancellation notices rendered the agreements unenforceable (thereby absolving the defendant from paying any costs by operation of the indemnity principle) under the Cancellation of Contracts made in a Consumer’s Home or Place of Work etc Regulations 2008 after they had been concluded at a community centre rather than at the office of the instructed solicitors.
R v Ali  4 Costs LO 533: Payment for considering pages of prosecution evidence under Criminal Legal Aid (Remuneration) Regulations 2013 where the status of the material has not been resolved between the parties or by a ruling of the trial judge.