Costs Flashcards
What is the general rule about costs?
Loser pays the winners costs
What will the court have regard to when deciding what order to make about costs
conduct
Whether wholly successful
Any offers made
What conduct can be considered?
Conduct before proceedings
Whether it was reasonable to pursue any particular allegation or issue
The manner in which the allegations were pursued
Whether the successful party exaggerated their claim
What costs orders can be made
Proportionate orders
A stated amount
costs from and until a date
Costs incurred before proceedings
costs relating to particular steps in the proceedings
costs relating to a particular part of proceedings
Interests on costs
The court will consider a proportionate order before awarding costs relating to a particular part of proceedings
What will the court order if it orders a party to pay costs on a detailed assessment?
To pay a reasonable sum on account before the assessment takes place, unless there is a good reason not to
Can costs be recovered for seeking funding to pursue or defend a claim?
No
What is the test for whether costs are caught by part 44?
its costs of and incidental to proceedings
This captures anything which is in some degree relevant and would be apprehended by parties as potentially included in the litigation
Does the judge have to give reasons for a costs order?
Yes
What is the indemnity principle as it applies to costs?
Costs are awarded as an indemnity to the party incurring them. The successful party cannot recover more than they owe their own solicitor
If the court makes no order about costs, what is the effect?
Costs lie where they fall.
It is for the parties to try and reach an agreement about costs
When might an issues based order be appropriate?
When a party has been successful on some but not all issues raised.
A few ways to cut the cake - could be time, could be proportion, could be particular parts of proceedings.
Its an exercise of discretion
What is the usual order where a claim and counterclaim both succeed?
Parties are awarded costs per the general rule for their claim and counterclaim.
However, a proportionate order may be preferred, especially when the issues are interlinked
What is the rule in medway oil?
The party who’s counterclaim is successful will only be awarded costs which are specific to the counterclaim.
All other costs are costs of the claim and are awarded to the winner of the claim
Can the court admit evidence when deciding costs?
Yes
What is a Bullock order?
An order where C sues D1 and D2. C succeeds against D1 but not D2. This means C and D2 are both successful.
A bullock order will allow C to pay costs to D2, but recover those costs from D1.
What is a sanderson order?
Type of Bullock order where instead of C being the middleman, Successful D is paid directly by unsuccessful D
Often used if the claimant is legally aided
When may a bullock or sanderson order be appropriate?
To avoid a situation where C is penalised for bringing a claim against two defendants in the alternative.
The facts of the case will help illustrate whether it is reasonable
How long will a party have to comply with an order for costs?
14 days from the date the amount of costs is communicated
or another day as specified
What is the effect of misconduct on the part of legal reps?
Court can disallow all or part of the costs which are being assessed
or
order a party to pay costs incurred by misconduct
What must the legal rep do if an order based on misconduct is given?
Inform their instructing party in writing in 7 days (unless they’re present so know)
Can the court set off costs against each other?
Yes
Can also delay issuing the costs certificate until you have paid the costs you owe
When does QOCS apply?
In a claim for damages:
for PI or
under the fatal accident act or
which arises out of death or personal injury and survives for the benefit of an estate
What is the effect of QOCS?
Means that claimants can have costs orders enforced against them without the permission of the court as long as the aggregate amount of money in from damages or costs or interest is more than the aggregate amount of money out
When does QOCS not apply when you would think it would? i.e. when is the claimant not protected by QOCS?
When C is struck out as it
disclosed no reasonable grounds of success
proceedings were an abuse of process
conduct of the claimant or their rep was likely to obstruct the just disposal of proceedings.
In these cases permission is not required to enforce above the amount received by C
