Disputes Resolution: Costs Flashcards
What are included in costs and what is the general rule?
Cost include:
- legal fees; and
- disbursements
General Rule
- loser payas winners costs
Can courts depart from general rule of costs?
Yes at courts discretion
Factors
- didn’t comply with pre action protocol
- refusal of ADR
- failure to negotiate
- rejection of part 36
- exaggeration
- didn’t succeed on whole claim
What costs are recoverable at most?
Indemnity principle
- limit is the actual costs
How might costs be assessed?(standard vs indemnity)
Standard Basis
- proportionate costs
- exercises doubt in paying parties favour
Indemnity Basis
- does not consider proportionality
- can only object to costs if work should not have been done if first place
How should costs be assessed ideally?
Parties should agree on costs so no need for assessment
When is cost management used and how?
Typically for multi track cases
Parties send budgets ahead of CCMC
- judge makes CMO
- CMO should not be departed from (20% leeway)
When should parties send cost budgets ahead of CCMC?
Claim under £50k
- file with directions questionnaire
Claim of £50k +
- 21 days before CCMC
What should a party do if they will exceed CMO?
Apply to court for new CMO
What happens if a party does not file a budget when there is cost management?
Risk they will not be able to recover costs
Other than court fees
What are the ways costs may be assessed and when are they each used?
Summary Assessment
- lower value cases
- interim applications
Detailed Assessment
- larger value cases
What must be done by parties for summary assessment?
Parties file statement of cost
- 24 hours before hearing for applications
- 2 days before trail
What is a summary assessment?
Judge makes assessment of costs payable at conclusion of hearing
- normal order that payment is in 14 days
- interest payable until paid
What is a detailed assessment process?
Used on larger value claims unless parties can agree on costs
- bill of costs served on opponent within 3 months
- opponent files points of dispute within 21 days
- provisional assessment by DJ (if up to £75k)
- Receiving party can challenge within 21 days and ask for detailed assessment hearing
- either parties agree or detailed assessment is held
6 cost certificate issued
7 payment in 14 days of certificate
What must party do if they exceeded cost budget?
If more than 20% over
- must file statement with reason
- judge may accept this but only with good reason
When will a provisional assessment not take place in a detailed assessment hearing?
If over £75k
What costs are recoverable in small claims?
Generally no order for legal costs. Only for:
-fixed costs
- reasonable pay for attending hearing
- expert fees up to £750
What is security for costs and what are requirements?
D can make interim application for this, meaning C will have to pay money into court or provide bond
Only available if:
- C is resident outside jurisdiction
- C is a company or other body and there is reason to believe that it will be unable to pay costs (if ordered to)
- C has changed address since claim started with view to evading consequences of litigation
- C failed to provide an address or gave incorrect address on claim form,
C is action as a nominal claimant (ie. suing for benefit of another), or
- C has moved assets outside England and Wales to make it difficult to enforce order for costs
When can courts make cost orders against non-parties, and how
Yes, but it is very rare. for example, in situations where the non party funds the proceedings and controls or benefits from them.
Procedure
- non-party must be added as a party and given opportunity to attend hearing at which court will consider matter further
What is Qualified One-Way Costs Shifting and when is it used?
PI claims, the claimant cannot be ordered to pay D’s costs unless:
- the claim was fundamentally dishonest,
- the claim was made for the benefit of another, or
- the claim was struck out for disclosing no cause of action or abuse
What is a Wasted Costs Order and when can it be used?
Means that the solicitor or party has to pay for legal cost resulting from improper, unreasonable or negligent action from their solicitor.
Court must be satisfied that:
- solicitor acted improperly, unreasonably or negligently,
- the conduct caused unnecessary costs, and
- it is ‘just to make the order
