Topic 13- Costs

Question 1

What is a detailed assessment?

Answer 1

This is the procedure where the amount of costs is decided by a costs officer

Question 2

What is a summary assessment?

Answer 2

This is the procedure where costs are assessed by a judge who has heard the case

Question 3

What is the general rule in relation to costs?

Answer 3

The unsuccessful party will be ordered to pay the costs of the successful party

Question 4

Which type of cases does the general rule on costs not apply to?

Answer 4

Proceedings in the Court of Appeal on family proceedings

Question 5

What will the court have regard to in deciding what cost order to make?

Answer 5

They will have regard to all the circumstances, including-
- Conduct of the parties
- Whether a party has succeeded
- Any admissible offer to settle made by a party (apart from Part 36)

Question 6

When looking at the conduct of the parties, what will the court specifically look at?

Answer 6

The extend to which the parties followed the pre-action protocols

The manner in which a party pursued or defended their case

Whether a claimant exaggerated their claim

Question 7

What are the types of costs orders the court may make?

Answer 7

Pay a proportion or stated amount of another party’s costs

Pay the costs from a certain date

Pay the costs incurred before proceedings begun

Pay the costs relating to particular steps, or distinct parts of proceedings

Question 8

Where the court is to assess the amount of costs, what basis may it assess those costs on?

Answer 8

Standard basis
OR
Indemnity basis

Question 9

What is meant by assessment of costs on a standard basis?

Answer 9

Only allow costs which are proportionate to the matters in issue

Whether they were reasonably and proportionately incurred

ALLOW COSTS THAT ARE PROPORTIONATELY AND REASONABLY INCURRED OR PROPORTIONATE AND REASONABLE IN AMOUNT IN FAVOUR OF THE PAYING PARTY

Question 10

What is meant by assessment of costs on an indemnity basis?

Answer 10

Only allow costs that were reasonably incurred, or reasonable in amount

Question 11

What is the difference between indemnity and standard basis costs assessment?

Answer 11

Standard- proportionately incurred

Indemnity- reasonably incurred (does not look at proportionality)

Question 12

What basis will costs usually be assessed on, unless otherwise ordered by the court?

Answer 12

The standard basis (proportionately and reasonably incurred costs)

Question 13

When will costs be considered proportionately incurred?

Answer 13

If they bear a reasonable relationship to the sums in issue in proceedings

Complexity of the litigation

Any additional work

Any wider factors

Question 14

Will a party likely recover less or more costs when assessed on a standard basis?

Answer 14

Less, as it must be proportionate AND reasonable

Question 15

Will a party likely recover less or more costs when assessed on an indemnity basis?

Answer 15

More, as it must only be reasonably incurred

Question 16

What order will the court make when assessing costs?

Answer 16

It may order for the costs to be made on either a summary assessment, or a detailed assessment by a costs officer

Question 17

What is the time limit for a party to comply with an order for costs?

Answer 17

Must comply within 14 days of the date of order

Question 18

If a party has failed to comply with a PD or order, OR their conduct has been unreasonable, what may the court do in relation to costs?

Answer 18

The court may disallow all or part of the costs being assessed

They may also order the party at fault to pay the costs which another party has incurred as a result

Question 19

What is a set-off?

Answer 19

Where a party entitled to costs is also liable to pay costs, the court may “set off” the amount assessed against the amount the party is entitled to
OR
Delay the issue of a costs certificate until the party has paid the costs liable to pay

Question 20

What type of claims involve qualified one-way costs shifting?

Answer 20

Personal injury claims

Fatal Accidents Act 1976 claims

Question 21

What is meant by qualified one-way costs shifting?

Answer 21

This means that the claimant doesn’t have to pay the other party’s legal costs if they lose the case

HOWEVER, THERE ARE EXCEPTIONS TO THIS

Question 22

What is the purpose of qualified one-way costs shifting?

Answer 22

It helps protect claimants from the risk of huge costs if they lose their claim

Question 23

What is the exception of QOCS where permission is not required?

Answer 23

A costs order may be enforced without court permission if the claim has been struck out-

Due to, no reasonable grounds for bringing proceedings, abuse of process, or poor conduct

Question 24

What is the exception of QOCS where permission is required?

Answer 24

A costs order may be enforced with court permission if there is fundamental dishonesty by the claimant (on the balance of probabilities)

Question 25

When will the court permit enforcement of a costs order as an exception to QOCS?

Answer 25

Where there has been, on the balance of probabilities, fundamental dishonesty

The dishonesty must make a substantial part of the claim

Question 26

What type of claims do QOCS relate to?

Answer 26

Personal injury, or fatal injury claims

Question 27

What should the court do if there is a 20% or more difference between the costs claimed, and the costs shown in the budget?

Answer 27

The court will order the party to provide a statement for the reasons for the difference

The court may then restrict the recoverable costs

Question 28

What percentage difference between costs claimed and budgeted costs must there be before the court orders to provide a statement for the reasons of the difference?

Answer 28

20% or more

Question 29

What is the effect of a “costs in any event” order?

Answer 29

The party in whose favour the order is made, is entitled to that party’s costs

Question 30

What is the effect of a “costs in the case/application” order?

Answer 30

The party in whose favour the order is made, is entitled to that party’s costs of part of the proceedings

Question 31

What is the effect of a “costs reserved” order?

Answer 31

The decision about costs is deferred to a later occasion,

but if no later order is made, then costs will be costs in the case

Question 32

When will the court order a summary assessment of costs in a fast-track trial?

Answer 32

At the conclusion of the trial, when dealt with on the fast-track

Question 33

Are costs incurred prior to proceedings recoverable?

Answer 33

Yes, they are capable of being recovered, as long as they were “of” or “incidental” to the proceedings

Must be relevant

Question 34

What happens to costs if the court doesn’t make a costs order?

Answer 34

It will be left to the parties to agree amongst them what should happen to the costs

Question 35

What is an issue-based costs order?

Answer 35

This is an order where, even if a party has succeeded on part of the case, if they have not been successful on another part, then the court may order they pay costs relating to part of the proceedings in relation to the unsuccessful issue

Question 36

What is the meaning of a “different order” being made by the court?

Answer 36

Where even if the claimant is successful, the court may make a different order in relation to costs

Therefore, they may order the claimant pays a percentage of costs, instead of using the general rule

Question 37

What happens if a claimant is successful, but a defendant is also successful in a counter-claim?

Answer 37

The court may order a special order is made, giving the overall winner a proportion of its costs

Question 38

If a successful party refused to engage in ADR, what may the court order in relation to costs?

Answer 38

They may deprive the successful party of some or all of their costs

The burden must be on the unsuccessful party to prove that the other party unreasonably refused ADR

Question 39

Will the conduct of a party before proceedings be looked at by the court when making a costs order?

Answer 39

Yes, they will look at whether the party engaged in pre-action protocols and ADR

Question 40

What is the situation where a Bullock or Sanderson order is made?

Answer 40

Where there is a claimant and two defendants, and the claimant succeeds against only one

Therefore, there are theoretically two unsuccessful parties, where two costs orders must be made

Question 41

What is the situation where a Bullock order is made?

Answer 41

Where there is a claimant and two defendants, and the claimant succeeds against only one

Therefore, there are theoretically two unsuccessful parties, where two costs orders must be made

The court may make a Bullock order, which means that the claimant pays the costs of the unsuccessful defendant, and recovers these costs from the unsuccessful defendant in addition to the claimant’s costs in respect of the claim against the unsuccessful defendant

Question 42

What is the situation where a Sanderson order is made?

Answer 42

Where there is a claimant and two defendants, and the claimant succeeds against only one

Therefore, there are theoretically two unsuccessful parties, where two costs orders must be made

The court may make a Sanderson order, where the unsuccessful defendant pays the costs of the successful defendant directly (skipping out the claimant)

Question 43

When will the court use the indemnity basis instead of the usual standard basis?

Answer 43

Where there has been conduct “out of the norm”

Eg, potentially unreasonable conduct

Question 44

When may a detailed assessment be carried out?

Answer 44

Costs must be assessed at the conclusion of the proceedings

Question 45

Will a detailed assessment be stayed pending an appeal?

Answer 45

No, unless the court orders otherwise

Question 46

Where a party has been successful, what costs order will the court likely make?

Answer 46

A costs in any event

(successful party’s costs are paid)

Question 47

What are the stages for costs after conclusion of the trial?

Answer 47

The court makes the appropriate order (eg, costs in any event)

The court will then assess the costs on a basis

Question 48

If a claimant has been unreasonable in refusing ADR, what is the likely order a judge will make?

Answer 48

For the costs to be assessed on an indemnity basis

Likely that the claimant will pay the costs

Question 49

If the claimant is successful in his personal injury claim, will the QOCS rule apply?

Answer 49

No, as he was successful

QOCS only applies where the claimant was unsuccessful

Therefore, the general rule to costs will apply

Question 50

In multi-track trial cases, what type of assessment will the court use in deciding costs?

Answer 50

They will usually order a detailed assessment in multi-track trials

Question 51

In fast track claims or one day trials, what type of assessment will the court use in deciding costs?

Answer 51

Usually a summary assessment

Question 52

If a personal injury claim has been struck out due to improper conduct, can the claimant recover the costs?

Answer 52

NO, the QOCS protection will not apply due to the claim being struck out

Question 53

Are there detailed assessments in fast-track claims?

Answer 53

No, there will not be detailed assessments, only summary assessments

Question 54

If a legal representative demonstrates poor conduct during proceedings, what costs order may the court make?

Answer 54

They may order the party’s representative to pay the costs which they incurred

Question 55

What conduct of the parties will the Court take into account on costs?

Answer 55

The conduct of the parties before proceedings were commenced, including how they complied with PDPAC, and during proceedings

Question 56

Does a costs assessment on the standard basis make it in favour to the receiving party or paying party?

Answer 56

Paying party

Question 57

Where an order is silent on costs, what will this mean for the costs?

Answer 57

There will be no costs order, so both parties will pay their costs

Question 58

What are wasted costs?

Answer 58

Where a party or lawyer has acted unreasonably, therefore they may be ordered to pay “wasted” costs for their conduct

Question 59

In making a submission to use either a Sanderson or Bullock order, which is the better argument:

• Did not know which of the two defendants was at fault?
• The defendants have been sued in the alternative

Answer 59

The better argument for making this submission is-

• Did not know which of the two defendants was at fault

Question 60

In a multi-track trial, will the Court assess costs using a summary or detailed assessment?

Answer 60

The Court has power to order a summary or detailed assessment of costs, but it will generally order a detailed assessment of costs unless there is good reason not to do so