Topic 13- Costs Flashcards
What is a detailed assessment?
This is the procedure where the amount of costs is decided by a costs officer
What is a summary assessment?
This is the procedure where costs are assessed by a judge who has heard the case
What is the general rule in relation to costs?
The unsuccessful party will be ordered to pay the costs of the successful party
Which type of cases does the general rule on costs not apply to?
Proceedings in the Court of Appeal on family proceedings
What will the court have regard to in deciding what cost order to make?
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)
When looking at the conduct of the parties, what will the court specifically look at?
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
What are the types of costs orders the court may make?
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
Where the court is to assess the amount of costs, what basis may it assess those costs on?
Standard basis
OR
Indemnity basis
What is meant by assessment of costs on a standard basis?
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
What is meant by assessment of costs on an indemnity basis?
Only allow costs that were reasonably incurred, or reasonable in amount
What is the difference between indemnity and standard basis costs assessment?
Standard- proportionately incurred
Indemnity- reasonably incurred (does not look at proportionality)
What basis will costs usually be assessed on, unless otherwise ordered by the court?
The standard basis (proportionately and reasonably incurred costs)
When will costs be considered proportionately incurred?
If they bear a reasonable relationship to the sums in issue in proceedings
Complexity of the litigation
Any additional work
Any wider factors
Will a party likely recover less or more costs when assessed on a standard basis?
Less, as it must be proportionate AND reasonable
Will a party likely recover less or more costs when assessed on an indemnity basis?
More, as it must only be reasonably incurred
What order will the court make when assessing costs?
It may order for the costs to be made on either a summary assessment, or a detailed assessment by a costs officer
What is the time limit for a party to comply with an order for costs?
Must comply within 14 days of the date of order
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?
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
What is a set-off?
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
What type of claims involve qualified one-way costs shifting?
Personal injury claims
Fatal Accidents Act 1976 claims
What is meant by qualified one-way costs shifting?
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
What is the purpose of qualified one-way costs shifting?
It helps protect claimants from the risk of huge costs if they lose their claim
What is the exception of QOCS where permission is not required?
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
What is the exception of QOCS where permission is required?
A costs order may be enforced with court permission if there is fundamental dishonesty by the claimant (on the balance of probabilities)
When will the court permit enforcement of a costs order as an exception to QOCS?
Where there has been, on the balance of probabilities, fundamental dishonesty
The dishonesty must make a substantial part of the claim
What type of claims do QOCS relate to?
Personal injury, or fatal injury claims
What should the court do if there is a 20% or more difference between the costs claimed, and the costs shown in the budget?
The court will order the party to provide a statement for the reasons for the difference
The court may then restrict the recoverable costs
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?
20% or more
What is the effect of a “costs in any event” order?
The party in whose favour the order is made, is entitled to that party’s costs
What is the effect of a “costs in the case/application” order?
The party in whose favour the order is made, is entitled to that party’s costs of part of the proceedings
What is the effect of a “costs reserved” order?
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
When will the court order a summary assessment of costs in a fast-track trial?
At the conclusion of the trial, when dealt with on the fast-track
Are costs incurred prior to proceedings recoverable?
Yes, they are capable of being recovered, as long as they were “of” or “incidental” to the proceedings
Must be relevant
What happens to costs if the court doesn’t make a costs order?
It will be left to the parties to agree amongst them what should happen to the costs
What is an issue-based costs order?
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
What is the meaning of a “different order” being made by the court?
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
What happens if a claimant is successful, but a defendant is also successful in a counter-claim?
The court may order a special order is made, giving the overall winner a proportion of its costs
If a successful party refused to engage in ADR, what may the court order in relation to costs?
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
Will the conduct of a party before proceedings be looked at by the court when making a costs order?
Yes, they will look at whether the party engaged in pre-action protocols and ADR
What is the situation where a Bullock or Sanderson order is made?
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
What is the situation where a Bullock order is made?
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
What is the situation where a Sanderson order is made?
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)
When will the court use the indemnity basis instead of the usual standard basis?
Where there has been conduct “out of the norm”
Eg, potentially unreasonable conduct
When may a detailed assessment be carried out?
Costs must be assessed at the conclusion of the proceedings
Will a detailed assessment be stayed pending an appeal?
No, unless the court orders otherwise
Where a party has been successful, what costs order will the court likely make?
A costs in any event
(successful party’s costs are paid)
What are the stages for costs after conclusion of the trial?
The court makes the appropriate order (eg, costs in any event)
The court will then assess the costs on a basis
If a claimant has been unreasonable in refusing ADR, what is the likely order a judge will make?
For the costs to be assessed on an indemnity basis
Likely that the claimant will pay the costs
If the claimant is successful in his personal injury claim, will the QOCS rule apply?
No, as he was successful
QOCS only applies where the claimant was unsuccessful
Therefore, the general rule to costs will apply
In multi-track trial cases, what type of assessment will the court use in deciding costs?
They will usually order a detailed assessment in multi-track trials
In fast track claims or one day trials, what type of assessment will the court use in deciding costs?
Usually a summary assessment
If a personal injury claim has been struck out due to improper conduct, can the claimant recover the costs?
NO, the QOCS protection will not apply due to the claim being struck out
Are there detailed assessments in fast-track claims?
No, there will not be detailed assessments, only summary assessments
If a legal representative demonstrates poor conduct during proceedings, what costs order may the court make?
They may order the party’s representative to pay the costs which they incurred
What conduct of the parties will the Court take into account on costs?
The conduct of the parties before proceedings were commenced, including how they complied with PDPAC, and during proceedings
Does a costs assessment on the standard basis make it in favour to the receiving party or paying party?
Paying party
Where an order is silent on costs, what will this mean for the costs?
There will be no costs order, so both parties will pay their costs
What are wasted costs?
Where a party or lawyer has acted unreasonably, therefore they may be ordered to pay “wasted” costs for their conduct
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
The better argument for making this submission is-
- Did not know which of the two defendants was at fault
In a multi-track trial, will the Court assess costs using a summary or detailed assessment?
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
