Costs (W2)

Question 1

CPR 44.2(1) - Court’s discretion

Answer 1

Court has discretion as to:

(a) whether costs are payable;
(b) the amount of those costs; and
(c) when they are to be paid.

Question 2

CPR 44.2(2) - General rule

Answer 2

Unsuccessful party pays costs of successful party

Question 3

CPR 44.2(3) - General rule does not apply

Answer 3

• Proceedings in the CoA on an application/appeal made in connection with proceedings in Family Division
• proceedings in the CoA from a judgment/direction/decision/order given or made in probate or family proceedings

Question 4

CPR 44.2(4) - In deciding what order (if any) to make about costs, what circumstances will the court have regard to?

Answer 4

(a) conduct of parties;
(b) how successful claim was e.g. succeeded on part of case;
(c) admissible offer to settle made by a party drawn to the court’s attention, which is not an offer to which costs consequences under Part 36 apply.

Question 5

CPR 44.2(5) - What does ‘conduct of parties’ include?

Answer 5

(a) conduct before as well as during proceedings, incl. extent to which followed Practice Direction - Pre-Action Conduct or relevant pre-action protocol;
(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation/issue;
(c) whether a claimant exaggerated its claim

Question 6

PD 44.2.19 - Offers to settle made wholly ‘without prejudice’

Answer 6

Not admissible for the purposes of costs unless the parties agree.

Question 7

PD 44.2.19 - Calderbank offers

Answer 7

Offers made ‘without prejudice save as to costs’

- commonly applied to any offer outside Part 36

Question 8

PD 44.2.19 - When are Calderbank offers admissible?

Answer 8

All cases where the issue was more than a simple money claim so that a payment into court was not an appropriate way of proceeding

Question 9

PD 44.2.19 - What is the right order when a Calderbank offer is taken into consideration?

Answer 9

Award the offeror all his costs from the date when his offer ought reasonably to have been accepted by the offeree.

Question 10

PD 44.2.24 - When should the courts impose a costs sanction on the successful party on the grounds that they refused to take part in ADR?

Answer 10

(1) can deprive successful party of some/all of its costs
(2) burden on unsuccessful party to show why they should depart from general rule
(3) must be shown successful party behaved unreasonably
(4) in deciding if unreasonable, should have regard to all circumstances of the case

Question 11

PD 44.2.24 - THE HALSEY GUIDELINES: Factors in determining whether successful party was unreasonable in refusing ADR

Answer 11

(a) Nature of dispute
(b) Merits of case
(c) Extent to which other methods to settle have been attempted
(d) If costs of ADR would be disproportionately high
(e) whether any delay in setting up ADR would have been prejudicial
(f) whether ADR had reasonable prospect of success

Question 12

PD 44.2.24 - Silence in the face of an invitation to participate in ADR

Answer 12

Is, as a general rule, unreasonable.

Question 13

PD 44.2.24 - How much should a costs sanction be?

Answer 13

• proper response in any particular case can be between disallowing of the whole or only a modest part of, the otherwise successful party’s costs
• in principle, the court might go further and order the otherwise successful party to pay all or part of the unsuccessful party’s costs, ‘but that Draconian sanction should be reserved for only the most serious and flagrant failures to engage with ADR.’
• failure to engage with ADR, even if unreasonable, does not automatically result in costs penalty: simply a factor to be taken into courts discretion on costs