Costs in civil cases Flashcards
Fixed costs regime - October 2023
- FT and IT
- only applied to FT and IT
- When the court makes a cost order, either interim or final, must be in line with practice direction 45.
- determine complexity band by considering amount of damages, complexity of case, case then allocated to table of costs - bands 1 -4. Courts must comply with where comes to on costs table.
- CTS can only divert from costs table if parties behaviour is unreasonable - can ask for costs to be lessened or increased dependant who has behaved unreasonably, up to equivalent of 50% of the fixed recoverable costs which would otherwise be payable.
Interim application - Max of £750 only in FT and IT
Multi track cases - costs
- no fixed costs table, Judge has full discretion to costs.
- Indemnity principle (IP) - always a winner and looser pays winners costs.
-IP doesn’t have to apply - Judge does have full discretion. - rues determine costs, factors that are considered are
- conduct parties - unreasonable, not engaged, late filing, not complying overriding objective
- won all claims
- settlement offer made and rejected
- complexity case.
- value money/property involved
- when judge makes Cost order (CO) can award on 2 basis:
1) Standard basis (SB) - if claimant wins recovers fewer cost. Looser pays reasonable and proportionate costs.
- more favourable to paying party, any doubt in favour paying party
2) Indemnity basis (IB) - costs reasonable but NEED not be proportionate.
- punishes paying party, any doubt in favour of receiving party
SB- recover 60-70% costs
IB - recover 70-80 % costs
Unlikely to recover 100% costs
- parties must submit budget
- CT looks through budget line by line and determine if reasonable IB or reasonable and proportionate SB
- consider costs t conclusion trial - costs hearing
Costs management orders (CMO)
- In MT case agree file and submit costs budget and budget discussion report
- CT then can make cost management order
- If orders SB costs can’t depart from CMO unless good reason to do so.
-CMO provides certainty and control to parties. Will stick to budget - IF IB warded CT does not have to stick to budget, assess costs looking at budget and see if reasonable DO NOT have to consider if proportionate.
- IF SB and no CMO will still take into account and that claimed differ to budget. If 20% difference or more need to file statement to set out reason for difference.
- if large difference likely to show claim unreasonable.
Final costs order
- end of trial
- if summarily that means on same day - FT and IT
- MT
- detailed cost assessment more likely
- sperate costs hearing presided over by separate costs judge
- summary assess - same day - in MT case for interim costs order.
1) - Interim cost order
2) - Type of interim costs orders
1) - Interim costs order
- orders given after interim orders such as summary judgement application
- made during case
- FT & IT - fixed costs
- interim costs in FT and IT limited to £750
2) Type of interim costs orders
* Costs in any event - whatever happen loser of interim application pays winners costs even if looses trial
* costs in case - winner trial, even if looses interim app still gets those costs to.
* no order as to costs - parties bear own interim application costs
* non party costs
- 3rd party pays losers costs
- made after trial
- made because winner fears loser won’t pay costs
- def makes non-party costs app- must be linked to case
- when loser becomes insolvent
- 3rd party orders made as becomes party in case
- high bar to add them
- can’t just add to fund proceedings
- must have connection to case
- eg shareholders can be added as 3rd party
- partner and members can also be added.
Security for costs
- type of interim costs application
- made by def if worried claimant not going to be able to pay if claimant looses.
- 3 grounds, 1 or more must be established, BUT CT still does have discretion not to order.
1) resident out of England and Wales
2) Accounts company bad, so poor
3) taken steps to make claim difficult eg moving assets abroad
Application
- check if claimant willing to deposit 1st
- if not file application with witness statement
- must notify claimant at least 3 clear days before hearing
Part 36 offers
- offer to settle - claimant or defendant
- either side make offer of a sum to settle
- can be made at any time before judgement
- in writing, make clear pursuant to s36, specify period acceptance (not less than 21 days) known as relevant period
- state if relates to whole or part of claim
- state if accounts for counterclaim
- mark without prejudice, judge will not know when made, only time will know is when assessing costs
- CPR punishes party who fail to take offer of part 36 offer - claimant or defendant.
Claimant makes s36 offer
- def rejects, and claimant wins an amount equal to or more than offer.
- should have accepted and court do not look favourably on it
- def will have to pay damages +
- 10% up to £500K
- 5% between £500k and £1 million up to max £75K +
- Costs SB up to end relevant period (21 days and costs IB from expiry of relevant period and interest on costs +
- interest up to max 10% above base rate +
- interest on damages max 10 % above base rate for some or all of the period, starting with date on which relevant period expired
Def makes s36 offer
- offers sum
- if accepted pays costs up to accepted date on SB
- claimant wins amount equal to or less than offer
- CT will punish claimant as should have accepted offer
- gets damages and costs on SB
- BUT will be punished and must pay defs costs on SB for expiry of relevant period plus interest
- if claimant looses pays defs costs on SB and interest on costs from expiry of relevant period
- can revoke part 36 offer before accepted but very rare
- part 36 available all tracks
- 14 days to pay - if haven’t submit order for judgement and will be ordered to be paid by the court
