DR 9 - Case & Costs Flashcards
What is the overriding objective when it comes to costs?
To deal with a case justly and at a proportionate cost.
What happens if the judge does not make an order as to costs?
Each party pays their own costs
What are solicitor-client costs?
Costs payable by the client to the solicitor under the contract retainer
What are inter-party costs?
The actual figure for costs awarded by the court which one party has to pay the other.
What is the indemnity principle?
A party will not be able to recover a sum in excess of their liability to their own solicitor.
What are Non-party costs and when are they made?
- Costs awarded AGAINST a person who is not party to the proceedings
- When the court considers them to be just
- Where the non-party both funds but also substantially controls or at any rate is to benefit from the proceedings (effectively litigation funders)
Does the court have discretion when considering costs and what will it consider?
Yes - complete discretion. It will discuss the parties conduct (e.g. ADR) and whether the party has succeeded on some issues.
What is the general rule for costs payable
Costs follow the event - i.e. the loser pays the winner.
What does the court have discretion over when awarding inter-party costs?
- Whether the costs are payable,
- The amount of the costs,
- When they are to be paid
What is the Standard basis for the amount of inter-party costs?
Costs which:
- Have been proportionately and reasonably incurred,
- are a proportionate and reasonable amount.
Any doubt is resolved in favour of the PAYING party.
What is the Indeminty basis for the amount of inter-party costs?
Costs which:
- Have been reasonably incurred; and
- are a reasonable amount.
- Any doubt is resolved in favour of the RECEIVING party
(normally pays more than the standard basis)
When is the indemnity basis used for inter-party costs?
normally used to mark disapproval by the court
How will the court decide the amount of costs after considering the Standard or Indemnity basis?
the court will consider:
- all the circumstances of the case (including conduct of the parties)
- The receiving party’s last budget
What is the standard time for paying costs?
within 14 days of:
- the date of the judgement or order if it states the amount of costs.
- the date of the certificate which states the amount due (if a decision about the quantum is made later)
In which cases does “Qualified one way cost shifting” occur
Where claims for damages relate to Death and Personal Injury
What is “Qualified one way cost shifting”?
- If the claimant wins the case, or any aspect of it, they may recover and enforce cost orders obtained in the usual way.
- If the claimant loses the case or any aspect of it, cost orders against them cannot be enforced except up to the level of damages and interest awarded to the claimant.
When will “Qualified one way cost shifting” not apply to cases involving Death or Personal Injury?
If proceedings have been struck out on the grounds that:
- no reasonable grounds for bringing the claim;
- abuse of the court’s process and/or
- The conduct of the claimant (or someone acting on behalf of the claimant with the claimant’s knowledge of such conduct) is likely to obstruct the just disposal of proceedings
- Claim is fundamentally dishonest. here the permission of the court is needed to enforce costs against the claimant
When is the “Summary assessment procedure” used and what are the deadlines?
- Fast-Track proceedings and in
- other cases where a hearing has lasted no more than a day.
- Statements of cost should be given to the other party not less than 24 hours before the time fixed for the hearing.
What is the process for a “detailed assessment” of costs?
The court orders the detailed assessment. Normally cases lasting over a day on the multi-track
The receiving party serves a notice of commencement and a copy of its bill of costs on the paying partty.
Points of dispute should be served on the receiving party by the paying party within 21days of service of the notice of commencement.
If not agreement reached, the receiving party should file a request for a detailed assessment hearing at which a costs officer will determine the sum to be paid.
What are the types of interim cost order?
- Cost in any event - paid win or lose
- Cost in the case - paid if win
- Costs of and caused by - made other side incur costs
- Costs thrown away - claim for set-aside
- Costs here and below - win lower costs
What are interim order for Cost in any event?
Person owes cost of interim hearing regardless of whether they later win or not.
What are interim order for Cost in the Case?
Person who gets costs at the trial will recover the costs for the interim hearing.
What are Claimants cost in the case?
If Claimant wins, they get the costs at the end of the trial in respect of the interim order. If the defendant wins, the claimant will not have to pay their costs in relation to the interim order.
Opposite applies for a Defendant’s cost in the case.
What are interim order for Costs thrown away
Where a judgement or order is set-aside, the party who wins gets costs including costs incurred in respect of the original order and their costs in getting the order set-aside.
What are interim order for “Costs of and caused by”?
A party must pay the costs resulting from something the party has done; for example costs incurred by the defendant resulting from a claimant amending its particulars of claim.
What are interim order for “Cost here and below”?
The party in whose favour the costs order is made is entitled not only to that party’s costs in respect of the current proceedings, but also to that party’s costs of the proceedings in any lower court.
What does it mean when a court “strikes out”
“Strike out” is the deletion of written material from a statement of case so that it cannot be relied on in the proceedings by any party.
Can the court “strike out” of it’s own initiative?
Yes. The court can strike out on it’s own initiative or on the application of a party”
What is the difference between a “strike out” and a “default judgment”?
- Strike out focuses on the statement of case and so covers cases which do not amount to a legally recognisable claim or defence. The case or issues are weakly pleaded.
- Default judgement is the consequence of a defendant failing to respond to a claim. The court does not consider the merits of the case when ordering a judgement in default.
What are the grounds for “strike out”?
a) The statement of case discloses no reasonable grounds for bringing or defending the claim. 💩
b) The statement of case is an abuse of the court’s process. 👺
c) There has been a failure to comply with a rule, practice direction or court order. 👨⚖️
Can costs be claimed in respect of a “strike out”?
Normally yes. If the court makes an order that unless something is done the statement of case will be struck out, and then the party doesn’t do that thing, the other party can normally claim costs by filing a request with the courts.
