Costs Pleadings - Retainers, Indemnity Principle, Court Discretion and Basis of Assessment

Question 1

Case: Costs are not a punishment, litigant should not profit from Costs

Answer 1

Harold v Smith 1860

Question 2

Case: For indemnity principle, consider item-by-item, not globally

Answer 2

General of Berne Insurance v Jardine 1998

Question 3

Case: Indemnity principle applies to CFA cases

Answer 3

Hollins v Russell 2003

Question 4

Case: Signature on the bill is confirmation of indemnity principle, only rebuttable by evidence, mis-certification is a serious offence

Answer 4

Bailey v IBC Vehicles Ltd 1998

Question 5

Case: If paying party raises a genuine issue, may need evidence to recover costs; otherwise presumption is that the client is liable to pay the costs of their solicitor

Answer 5

Hazlett v Sefton MBC 2000

Question 6

Case: Incurred Costs on budget have similar importance to accuracy statement on bill; estimated costs are merely estimates

Answer 6

Tucker v Hampshire Hospital Trust 2017

Question 7

Statute/Section: Costs payable are at the discretion of the Court

Answer 7

Section 51(1) of Senior Courts Act 1981

Question 8

CPR: The court has discretion as to whether costs are payable, by whom, how much and when

Answer 8

CPR 44.2(1)

Question 9

List: Name the 6 items which can give rise to the right for a detailed assessment

Answer 9

(a) Copy of Judgement or Order, (b) Notice of claim being struck out (c) Confirmed acceptance of Part 36 offer, (d) Notice of discontinuance, (e) Award made on arbitration or (f) Order/Award/Determination of Statutory Tribunal/body

Question 10

CPR: Costs may be on the Standard or Indemnity basis

Answer 10

CPR 44.3(1)

Question 11

CPR: Costs on Standard basis must be proportionate, doubt in favour of paying party, subject to CPR 44.3(5) Factors

Answer 11

CPR 44.3(2)

Question 12

CPR: Costs on Indemnity basis must be reasonable, but do not have to be proportionate, doubt in favour of receiving party

Answer 12

CPR 44.3(3)

Question 13

Case: Disproportionate but necessary costs could be recovered (Conflicts with CPR 44.3(2)

Answer 13

Lownds v Home Office 2002

Question 14

List: CPR 44.3(5) - Costs are proportionate if they bear a reasonable relation ship to… (6 items)

Answer 14

(a) Sums in issue, (b) Value of non-monetary relief, (c) Complexity of litigation, (d) Additional work due to conduct of paying party, (e) Wider factors such as reputation or public importance, (f) Additional work necessitated by vulnerability

Question 15

Case: Two stage approach used - line-by-line for reasonableness and line-by-line for proportionality

Answer 15

BNM v MGN 2016

Question 16

Case and appeal: Two stage approach used - Line-by-Line for reasonableness, global sum reduced on proportionality - broadbrush global reduction found inappropriate on appeal - must consider 44.3(5) factors

Answer 16

May v Wavell Group 2016 and 2017

Question 17

Case: Proportionality is two stage test, also discounting all unavoidable costs when making deductions

Answer 17

West and Demouilpied v Stockport NHSFT 2020