Costs I Flashcards
What is the general rule as to costs?
The loser generally pays the winner’s costs
Do winners of trials recoup all of their costs?
No - this is incredibly rare.
What is the underlying principle of costs?
The court has discretion on who pays whom, how much and when (44.2)
What are the exceptions to the general rule of costs?
General rule does not apply to CA in family or probate proceedings
What 3 things will the court consider when deciding what costs order to make?
(1) parties conduct (2) parties success in at least parts of claim (3) any admissible offers (where Pt36 consequences don’t apply)
What is considered the “conduct” of parties when deciding a costs order?
pre-action conduct, reasonableness and manner of pursuing or defending issues, and whether a successful C exaggerated their claim.
How many costs orders are generally available?
7
What are the 7 costs orders available?
(a) proportion; (b) stated amount (c) between fixed dates (d) pre-proceedings (e) for a particular step only (f) distinct part of proceedings only (g) interest on costs between fixed dates (can be pre-proceedings).
Where can you find the 7 options for costs orders?
CPR44.2(6)
What are the special rules for costs relating to a distinct part of proceedings (44.2(7))?
What does the court do if a party is ordered to pay costs once a detailed assessment is done?
Court orders reasonable sum paid on account of costs (an interim payment) unless good reason to not
How long do parties have to comply with costs orders?
14 days of the order if it specifies costs; or within later date of certificate if specified.
CPR 44.11(1)?
Court has power to make costs orders where a party or legal rep has failed to comply or been unreasonable.
If court gives a costs order for breaching OI or CPR, how are parties told?
If not there, the legal rep must tell their party in writing less than 7 days after notice is given of the order.
What is qualified one way costs shifting for?
qualified one way costs shifting is for PI claims only
What is qualified one way costs shifting?
QOCS limits the liability of a losing claimant in PI to pay winning Ds costs
What can the court do when a party owes and is owed costs?
Court can either set off the difference (i.e. subtract) or require any payment due before issuing a certificate for costs
What are the 2 effects of a QOCS?
(1) Claimant can never be ordered to pay > they won (2) any costs D is entitled to can be enforced against C without permission as long as not exceeding
When can QOCS orders against C be made?
Only where proceedings are concluded and costs have been assessed
How does QOCS apply if both C and D win?
If C and D both partially win, QOCS doesn’t apply and instead the court can set-off the difference under 44.12
What is the exception to QOCS that REQUIRES court permission?
When a claim is found to be “fundamentally dishonest” (even if not struct out) D may obtain full costs against a PI C
What exception to QOCS does not need court permission?
Where claim had no reasonable grounds or was an abuse of process, conduct obstructs justice, D can obtain full costs against a PI C
When must parties provide a statement for costs discrepancies?
If there is >20% difference between the costs budget and costs upon DETAILED ASSESSMENT the party must give reasons why
How does the court determine reasonableness and proportionality of costs?
by reference to last approved costs budget + loose regard of all other budgets
How can paying parties contest their costs orders?
By demonstrating reasonable reliance on costs budget to show disproportionality of what others are claiming for
If a paying party demonstrates reliance on a costs budget, what can the court do?
If payer reasonably relied on budget - court may restrict costs to a ‘reasonable sum’ EVEN if the “unreasonable” OG amount is reasonable and proportionate.
When will the court decide that the excess of a costs budget is unreasonable?
If the party set to receive the costs cannot explain why they have incurred higher costs - these costs can be deemed additional
Can the trial court comment on costs hearings?
Yes - re: whether the hearing is fit for counsel attendance
What costs does the court have power over?
All costs “of or incidental to” proceedings - anything “in some degree relevant” to subject of proceedings
What should be done when costs orders are given?
Judges should always give their reasons for costs orders - especially if the costs are disproportionate
What happens if the court doesn’t make a costs order?
The costs “lie where they fall”: each party is responsible for their own costs incurred
How should courts approach separate issues in proceedings when making costs orders?
Courts should be willing to make proportional costs orders with reference to particular issues not just overall outcome
When should the court consider using issue-based costs?
Where a party raises an unsuccessful issue - even if they win trial - court should consider revoking or requiring costs on that issue. ENORMOUS DISCRETION v fact based
How far do costs of a counterclaim extend?
A party awarded costs of a counterclaim only includes that which is specific to that counterclaim
What evidence can be admitted for costs?
Any evidence can be admitted if relevant to costs - doesn’t need to have been used at trial
Are offers relevant to costs?
Yes - except offers wholly without prejudice
What are indemnity costs?
Indemnity costs are where the paying party pays reasonable but not proportionate costs - often very punitive
What is the burden of proof for indemnity costs?
Paying party must prove that the owed costs are unreasonable - inverting the standard rule - can include fines up to £75k.
What are standard costs?
Owed party must prove their costs are reasonable and proportionate
Can ADR affect costs?
Sort of - unreasonably refusing ADR may allow for indemnity costs
What is a Bullock Order?
A costs order used where there are multiple Ds both won and lost against by C: C can recover costs paid to D1 from costs owed by D2.
Which is more suitable, a bullock or sanderson order?
A bullock order is usually better suited.
What is a sanderson order?
simpler than bullock order. Where theres 2 Ds and one C; the successful D1 when sued in the alternative, recovers their costs from unsuccessful D2.
Do appeals pause costs assessments?
No
What costs are assessed by the court?
Anything not fixed, whether summarily or detailed
Who pays costs in ADR?
Generally, parties pay their own costs - no general rule that the winner gets costs.
How can self-payment of costs in ADR be changed?
By Part 36 offers; as settlement in contract; as awards by third parties
What are the two types of costs assessments?
Detailed and summary assessments
When should summary assessments of costs be done?
End of trial on fast-track, end of any other hearing <1 day unless good reason to not
How should parties assist judges with summary cost assessments?
By producing schedules of costs with hours etc: filed at least 2 days before fast track trial, 24 hours other hearings.
When must scheduled costs be served on court?
At least 2 days before fast-track trials or 24 hours before any other hearings.
