1.12 Costs Flashcards
What consequences regarding costs may court make?
One party to pay costs
Amount
Date of payment
What are costs management rules? When do they apply or not apply?
Costs management rules
- Manage steps taken
- Manage costs incurred
Applicable;
- ALL multi-track claims
- Further overriding objective
NOT applicable;
- Claimed amount > £10m
- Minor’s claim
- Claim subject to fixed costs regime
- Court orders otherwise
What is a costs management order? What is required?
Costs management order;
- Record extent of budgeted costs > Agreed between parties, sums approved by court
- Record court’s approval after appropriate revisions > NOT agreed budgets
- Record extent of agreed incurred costs
Considerations
- Receiving party’s last approved budgeted costs for each phase
- NOT depart from agreed budgeted costs
When may the loser pay the winner’s costs?
Factors
- Parties’ conduct
- Winner is part of case
- Admissible offer to settle drawn to court’s attention
UNLESS
- C discontinues > C to pay D’s costs at notice of discontinuance
- Party does not do better at trial than Part 36 offer made to them > Refusing party is liable to pay offering party’s costs after offer expires
What is required for each party filing and exchanging costs budget?
Claim > £50,000
1) Prescribed form (Precedent H)
- Reasonable and proportionate cost expected to incur at each phase
- Detailed by fee earner
- Hourly rate
- No. hours to be incurred
2) At least 21 days before firsts costs + CMC
Claim > £50,000
- File and exchange w directions questionnaire
- UNLESS court orders otherwise
Review claimed amounts re each phase
- NOT detailed assessments
Otherwise > Treated as filing budget (inc. applicable court fees)
What type of funding methods are available?
Traditional private client retainer
- Most common method
- Client pays for work based on solicitor’s hourly rate
- Regardless of outcome
Conditional fee agreement (CFA)
- If case is successful > % uplift (fee) (Max. 25% personal injury; Max. 100% other claims) > Legal rep
- If case is NOT successful > Client to pay disbursements + costs order; Legal rep NOT paid for work
Damages-based agreement (DBA)
- If case is successful > % Client’s sum (Max. 25% recovered by Client for personal injury; Max. 50% recovered ultimately for other claims) > Legal rep
- If case is NOT successful > Client to pay disbursements + costs order; Legal rep NOT paid for work
Before Event Insurance (BTE)
- Before party aware of dispute > Insured party has benefit re Insured party’s costs + Adverse party’s costs order
After Event Insurance (ATE)
- After party aware of dispute > Insured party has benefit re Insured party’s costs + Adverse party’s costs order
Litigation funding
- Unconnected TP (successful claim) > % recovered sums (fee) > Legal costs
What is required for a budget discussion report?
1) Report
- Figures agreed + NOT agreed for each phase
- Brief summary of grounds
2) File + exchange report => ALL other parties (NOT litigants)
- No longer than 7 days before first CMC
What is an interim costs order?
Small claims court
Either
- Fixed costs attributed to claim
- C acted unreasonable (NOT party’s rejection of settlement offer) > Court orders costs
Party to pay other
- Costs
- Fees
- Expenses
- Appeal
What are non-party costs?
At court’s discretion
Exceptional circumstances (where just)
Paid by non-party
- NO personal interest
- NOT stand to benefit
- NOT funding as matter of business
- NOT seek to control its course
- ‘Real party’
- Its conduct caused Applicant to incur costs
What is Qualified One-Way Costs Shifting?
Applies to;
- Personal injury
- Clinical negligence
If C successful;
- D to pay C’s costs
- NOT pay D’s costs
If C NOT successful;
- Costs order can be made vs C
Court consent required vs C
- Claim found fundamentally dishonest
- Claim is for financial benefit of another/partially personal injury claim
Court consent NOT required vs C
- Fraud
- Claim struck out for pleading NOT reasonable cause of action
- Abuse of process
- C’s conduct likely to obstruct just disposal of proceedings
- App for pre-action disclosure
- C entered pre-commencement funding arrangement
What is a Part 36 offer?
Protects D vs costs of long pre-trial and trial
Settle faster
What is required for Part 36 offer?
1) Form N242A/Writing in prescribed form or letter
2) Stated as pursuant to Part 36
3) ‘Relevant period’
- At least 21 days
- If not accepted, can be withdrawn
4) Extent of offer + in settlement of counterclaim
5) Any time
6) Re issues to apeal/cross-appeal
7) w/o prejudice save as to costs
What are the costs consequences of a Part 36 Offer?
C does better at trial > D’s offer
=> Court’s discretion re costs
D’s offer made +21 days before trial => C accepts within relevant period
=> Costs to C (standard basis)
D’s offer made +21 days before trial => C NOT accept within relevant period
=> Costs to C
=> Court orders costs vs C (expiry until acceptance)
C does NOT do better at trial < D’s offer
=> C to pay D’s costs (expiry until costs determination)
C does better at trial >= C’s offer (NOT accepted by D)
=> D to pay C’s costs (indemnity basis - interest rate max. 10% above base rate)
=> Binding contract
What is a Calderbank Offer?
W/O prejudice save as to costs
Global terms
- Contribution re costs
- NO contribution
Remedy beyond payment
- One party to another party
Payment
- Instalments
- Less than 21 days
Acceptance period < 21 days
Parties refer to offer after judgment given
What are the costs consequences of a Calderbank Offer?
Offeree performs NOT better at trial < Calderbank Offer
- Court will consider Offeree to pay costs (expiry until trial)
