QUOCS, ATE insurance and non party costs Orders

QUOCS was introduced as part of the LASPO 2012 reforms on 1st April 2013 to provide that subject to a limited number of exceptions, a costs Order made against a losing claimant bringing a personal injury claim could not be enforced against the claimant.

The principal exceptions provided for QUOCS protection not to apply in circumstances where a claim was struck out, where it was found to be fundamentally dishonest and when it was brought for the financial benefit, in whole or in part of another party. This was the quid pro quo, for the abolition of recoverable liabilities namely success fees and ATE insurance premiums.

The result has been that the insurance industry and other serial litigants if they successfully defend a claim at trial on its merits, will be left with an irrecoverable bill for their own costs.

One of the more predictable results of the LASPO 2012 reforms, is that the last 3 1/2 years have seen an upsurge in wasted costs applications against solicitors representing the losing claimants in personal injury claims, numerous allegations of fundamental dishonesty being levied at claimants sometimes with, sometimes without a proper foundation and the development of some arguments, that could be regarded as risible, including the argument that a claim struck out, is synonymous with it being dismissed at trial.

A far more fruitful argument has long seemed to me, to be the potential for a non party costs application to be made under section 51 of the Senior Courts Costs Act 1981 against an ATE insurer who has written a policy providing an indemnity for adverse costs for the benefit of a claimant in a personal injury claim.

That few such applications have been made is surprising: I suspect the reason is that it has simply been assumed that the QUOCS scheme precludes any such applications being made.

The starting point to note is that QUOCS protection applies to claimants, not to insurance companies  that have agreed to provide them with an insurance indemnity for their own unrecovered costs and any adverse costs, they may be liable to pay.

Rule 44.14 provides as follows:

(1) Subject to rules 44.15 and 44.16, orders for costs made against a claimant may be enforced without the permission of the court but only to the extent that the aggregate amount in money terms of such orders does not exceed the aggregate amount in money terms of any orders for damages and interest made in favour of the claimant.

(2) Orders for costs made against a claimant may only be enforced after the proceedings have been concluded and the costs have been assessed or agreed.

(3) An order for costs which is enforced only to the extent permitted by paragraph (1) shall not be treated as an unsatisfied or outstanding judgment for the purposes of any court record.

It will be noted that the express scope of the prohibition on enforcement of costs Orders is limited to those costs Orders made against the claimant: there is nothing in the prohibition which would preclude an application being made directly against an ATE insurer.

Moreover, the rules plainly contemplate that a claimant who has had a costs Order made against them, is liable to pay the costs of that Order: it remains due and owing but is simply unenforceable, meaning that court proceedings to recover the costs will fail. This seems clear from rule 44.14(3), which provides that an unsatisfied costs Order will not taint the claimant’s credit record by reason of its status on the court record. There is no wider development of a “hold harmless” provision, nor do the Rules provide, as they might that no costs Order at all should be made against a claimant, merely that such an Order is unenforceable.

The criteria upon which a non part costs Order might be made would be drawn from the leading case on non party costs Orders against legal expense insurers, that of Murphy and Another v Young & Co.’s Brewery and Another [1997] 1 W.L.R. 1591 which provided the following reasoning for making such an Order as follows drawing together a number of principles:

(1) In Giles v. Thompson [1994] 1 A.C. 142 , 164 Lord Mustill suggested that the current test of maintenance should ask the question whether: “there is wanton and officious intermeddling with the disputes of others in where the meddler has no interest whatever, and where the assistance he renders to one or the other party is without justification or excuse.” Where such a test is satisfied, I would expect the court to be receptive to an application under section 51 that the meddler pay any costs attributable to his intermeddling.

(2) Where a non-party has supported an unsuccessful party on terms that place the non-party under a clear contractual obligation to indemnify the unsuccessful party against his liability to pay the costs of the successful party, it may well be appropriate to make an order under section 51 that the non-party pay those costs directly to the successful party. Such an order may, for instance, save time and costs in short-circuiting the Third Parties (Rights against Insurers) Act 1930 . Bourne v. Colodense Ltd. [1985] I.C.R. 291 is a case where the court might well have thought fit to make such an order had it appreciated that it had jurisdiction to do so.

(3) Where a trade union funds unsuccessful litigation on behalf of a member the following factors, in addition to the funding itself, are likely to be present and, where they are, to make it appropriate to order the union to pay the successful party’s costs should such an order be necessary: (a) an implied obligation owed by the union to its member to do so—see (2) above; (b) an interest on the part of the union in supporting and being seen to support the member’s claim; (c) the conduct of the litigation; (d) expectation based on convention that the union will bear the costs of the successful party should the member lose.

(4) Where an unsuccessful defendant’s costs are funded by insurers who have provided cover against liability, which is not subject to any relevant limit, the same considerations that I have set out under (3) are likely to apply.

The analysis above is untested, as far as I can glean in any decided case post April 2013.

There are of course excellent arguments which ATE insurers could deploy to argue that they should not be made subject to non party costs Orders, but given the length of this post already, I shall have to save those for another day.

The top 5 ways your solicitor rips you off

What do you think of the title to this post? Does it catch your attention? Admittedly it is not blessed with the same power and venom possessed by the phrase “Enemies of the People” but it both catches the attention and has power to shock.

However the title was not  devised by me. Rather it reflects the a marketing wheeze devised by a company that had spotted a perceived gap in the market for advice  in relation to solicitor-own client assessments under the Solicitors Act 1974. The aggressive tone of the advertisement led to a complaint to the Advertising Standards Authority, which was upheld: you can read the report here: https://www.lawgazette.co.uk/practice/-your-solicitor-rips-you-off–cmc-told-to-pull-provocative-ad/5055869.article

The accompanying video to the advertisement still lingers palely (and amusingly) in cyberspace on Youtube, with an earnest presenter providing an explanation of what wicked creatures solicitors are.

In truth few professions are more regulated than the legal profession, and rightly so given the quasi-monopoly it has over litigation and the need to ensure that the public interest is protected.

The history of regulation and in particular constraints upon what lawyers may charge their clients is long and goes back centuries before the enactment of the Solicitors Act 1974.

A fairly basic safeguard, is a statutory requirement that when a solicitor levies a bill, upon which they may take legal action if it is not paid, that bill must contain a sufficient narrative of what work has been done, and what the client is being charged for, so that it constitutes a “proper” bill. Unless and until such a bill is served, no action can be brought.

As noted in the case of Ralph Hume Garry v Gwillim [2002] EWCA Civ 2002 the origins of the requirement that a solicitors bill should have a narrative, can be traced back to Georgian times and the Act for the better Regulation of Attorneys and Solicitors, 1729, 2 Geo. II. c 23, section 23

As early as that time there had been a bar on the solicitor commencing action until the expiration of one month from the delivery of his bill and there were provisions, slightly different provisions it has to be emphasised , for the taxation of that bill. Even then the bill had to be properly delivered and “subscribed with the proper hand of such attorney or solicitor”. The content of the bill received a little more clarification than has since appeared in that it was prescribed that the bill should be:−

“Written in a common legible Hand and in the English Tongue (except Law Terms and Names of Writs) and in Words at length (except Times and Sums) ×”

That may explain the practice of having a narrative account of the work done.

That Act was succeeded by the Solicitors Act 1843 which provided in section 37 as follows:

“No solicitor shall commence or maintain any action or suit for the recovery of any fees, charges, or disbursements for any business done by such × solicitor, until the expiration of one month after such × solicitor × shall have delivered unto the party to be charged therewith × a bill of such fees, charges, and disbursements, and which bill shall either be subscribed with the proper hand of such × solicitor, (or, in the case of a partnership, by any of the partners.

….

Provided also, that it shall not in any case be necessary in the first instance for such solicitor  in proving a compliance with this Act, to prove the contents of the bill he may have delivered, sent, or left, but it shall be sufficient to prove that a bill of fees, charges, or disbursements, subscribed in the manner aforesaid, or enclosed in or accompanied by such letter as aforesaid, was delivered, sent, or left in the manner aforesaid; but nevertheless it shall be competent for the other party to show that the bill so delivered, sent, or left was not such a bill as constituted a bona fide compliance with this Act “

Section 37 gave rise to some titanic battles in the Victorian courts about the taxation of solicitors bills. Keene v Ward (1849) 13 Q.B. 513. That was an action by the solicitors under a bill which contained charges in respect of nine actions in the Court of Exchequer and two in the Common Pleas. It also contained items in respect of two other actions as to one of which the parties were named and the bill was itemised to state, for example, “Instructions to sue 3s. 4d., writ of summons 12s. 6d”. The final charges in the bill did not identify at whose suit the defendant was the client and contained the fascinating description:−

“Attending you on your informing an action had been brought against you, and as to possibility of throwing it over the Long Vacation; and you were to bring me the writ and notice of declaration × 6s.8d.

The defendant objected to the bill submitting it did not satisfy the requisites of section 37. The argument was that because the bill did not state the court to which the business related, no−one could advise as to the taxation of those parts of the bill and if the bill could not be referred for taxation, it was insufficient. Patteson J. delivering the judgment of the court held:−

“In requiring the delivery of an attorney’s bill, the legislature intended that the client should have sufficient materials for obtaining advice as to taxation: and we think that we fulfil that intention by holding the present bill sufficient within that principle: whereas, if we required in respect of every item a precise exactness of form, we should go beyond the words and meaning of the statute, and should give facilities to dishonest clients to defeat just claims upon a pretence of a defect of form in respect of which they had no real interest.

The next case of interest was Cook v Gillard (1852) 1 E. & B. 26. Here the solicitor Mr Cook delivered a bill to his client divided into four parts. The first part was headed “Yourself and Ransom”. It consisted of a charge for attending the defendant and consulting as to slanderous reports; and then, under a fresh head, “Hilary Term 1846”, there were charges for “Letter before action”, “Instructions to sue”, “Writ of summons”, and “Attending settling”. The amount of the first part of the bill was £2. 19s. 8d. Except insofar as might be inferred from the items quoted there was nothing to show whether the suit of Gillard v Ransom had been pending in any, or which, of the superior courts. The second part of the bill related to conducting the defence of a case at the Middlesex Quarter Sessions and the third part for conducting a prosecution there. The fourth part of the bill was headed “Yourself and Mrs Heydeman”. It contained charges for taking the opinion of counsel on the construction of an agreement, various charges for collecting evidence and making enquiries at Hatton Garden, Tottenham Court Road, and other places well known to be in Middlesex, but which were not stated on the face of the bill to be there; for “Instructions to sue in an action on the case”; for “Writ” and “Service”; for attending in court when on motion by counsel “A rule was made to refer all matters in dispute”; and for attending the reference. The amount of this head of the bill was £122. 8s. 10d. Except insofar as might be inferred from the items quoted there was nothing to show whether the cause of Gillard v Heydeman had been pending in any, or which, of the superior courts. It was contended for the defendant that the first and last parts of the bill were insufficient, as they did not show in what courts the business there charged for was transacted; and therefore that the bill, being one entire bill, was not sufficient as to any part. For the plaintiff it was contended that the bill was sufficient for the whole; or, if not, that it was divisible and good pro tanto.

Lord Campbell C.J. delivered the judgment of the court. He referred to Ivimey v Marks (16 & W.) 843 in which the rule was laid down that a charge for an item in an action, without specifying in what court the action is brought, rendered the bill bad, the reason being that the client ought to be enabled by the bill to obtain advice as to taxation without the need of further question. The Lord Chief Justice pointed out section 37 of the 1843 Act and said:−

“No requisites for the bill are particularised: there is no requirement that the court should be specified: and the section further declares that the plaintiff is not bound in the first instance, in proving a compliance with the Act, to prove the contents of the bill delivered; but it is presumed sufficient unless the defendant proves that it is not such a bill as constitutes “a bona fide compliance with this Act.” The defendant here does not prove that any further information was practically wanted for taxation, or suggest that the name of the court in which the two writs of summons were issued would have been of any use to him: nor does he contend that the Act has not in this case been bona fide complied with, unless the arbitrary rule be deduced from the cases above mentioned, that the name of the court as to every item is indispensable, can be maintained. Now this rule, as applied to the existing statute, appears to have originated in a mistake: it was first introduced by judges applying the provisions of stat. 2 G. 2, c 23, s.23; and then there was good reason for it; for the jurisdiction to tax under that statute is given to the court in which the greater part of the business was done; and it was therefore indispensable for the parties and for the taxing officer to be able to assign each item to its appropriate court, before the taxation could be entered upon: moreover at that time the scale of charges in the different courts was different; so that the name of the court was also wanted in order to estimate the amount of charges. But, under the existing statute, if there is any item in any court of law, jurisdiction is given to all the superior courts indifferently; so that in respect of jurisdiction the name of the court is entirely immaterial: and so likewise it is for estimating the amount due, as the scale of charges in all the superior courts is now uniform. The judges, who instituted the rule in relation to the existing statute, adopted it from cases under the former statute, without adverting to the important changes in the law which the legislature had made; and thereby, as we think, contravened the intention of the legislature. If this reasoning is correct, it follows that the rule, which so originated, has been maintained without any useful purpose.”

He analysed a number of cases including Keene v Ward and then said:−

“This has been followed by a very salutary judgment in Cozens v Graham (16 Jurist, 952), where a bill was held valid although the court in which the business was done was not mentioned or described, it being clear that the defendant, knowing the court, did not want the information and only made the objection to evade payment of a debt.

Lord Campbell C.J. held:−

“I think the plaintiff has proved that he delivered such a bill as the statute requires. The statute, it is to be observed, requires the delivery of a bill of fees, charges and disbursements, but does not specify further what its contents shall be. I agree, however, that the bill must disclose on the face of it sufficient information as to the nature of the charges. I adopt the rule as to this, laid down in Keene v Ward  and in Cook v Gillard.The view taken by my brother Patteson in Keene v Ward seems very sensible.

He went on to say:−

“Complaints have sometimes been made that solicitors are not at liberty to recover the fair remuneration for their services as freely as any other person. It may be necessary to subject them to some regulation; but they have just ground for complaint if those regulations are vexatious, preventing the fair recovery of a just amount. I do not think that the legislature intended to throw on the solicitors the burthen of preparing a bill such that another solicitor on looking at it should, without any further statement, see on the face of the bill all the information requisite to enable him to say the charges were reasonable.

The principles to be derived from these cases were summarised by Ward LJ in his judgment in the Ralph Hume Garry case as follows:

Against that background the principles to be deduced from those cases appear to me to be these:−

i) the legislative intention was that the client should have sufficient material on the face of the bill as to the nature of the charges to enable him to obtain advice as to taxation. The need for advice was to be able to judge the reasonableness of the charges and the risks of having to pay the costs of taxation if less than one−sixth of the amount was taxed off.

ii) that rule was, however, subject to these caveats:−

a) precise exactness of form was not required and the rule was not that another solicitor should be able on looking at the bill, and without any further explanation from the client , see on the face of the bill all information requisite to enable him to say if the charges were reasonable;

b) thus the client must show that further information which he really and practically wanted in order to decide whether to insist on taxation had been withheld and that he was not already in possession of all the information that he could reasonably want for consulting on taxation.

iii) the test, it seems to me, is thus, not whether the bill on its face is objectively sufficient but whether the information in the bill supplemented by what is subjectively known to the client enables the client with advice to take an informed decision whether or not to exercise the only right then open to him, viz., to seek taxation reasonably free from the risk of having to pay the costs of that taxation.

iv) a balance has to be struck between the need, on the one hand, to protect the client and for the bill, together with what he knows, to give him sufficient information to judge whether he has been overcharged and, on the other hand, to protect the solicitor against late ambush being laid on a technical point by a client who seeks only to evade paying his debt.

The Victorian authorities formed a backdrop, to the very issue the Court of Appeal had to decided in the Ralph Hume Garry case: namely the sufficiency of a narrative for the purposes of section 69 of the Solicitors Act 1974 which provided:

(1) Subject to the provisions of this Act, no action shall be brought to recover any costs due to a solicitor before the expiration of one month from the date on which a bill of those costs is delivered in accordance with the requirements mentioned in subsection (2);

(2) The requirements referred to in subsection (1) are that the bill

(a) must be signed by the solicitor, or if the costs are due to a firm, by one of the partners of that firm, either in his own name or in the name of the firm, or be enclosed in, or accompanied by, a letter which is so signed and refers to the bill; and

(b) must be delivered to the party to be charged with the bill, either personally or by being sent to him by post to, or left for him at, his place of business, dwelling house, or last known place of abode;

and, where a bill is proved to have been delivered in compliance with those requirements, it shall not be necessary in the first instance for the solicitor to prove the contents of the bill and it shall be presumed, until the contrary is shown, to be a bill bona fide complying with this Act.

The Court of Appeal formulated the test as follows:

70.This review of the legislation and the case law leads me to conclude that the burden on the client under section 69(2) to establish that a bill for a gross sum in contentious business will not be a bill “bona fide complying with the Act” is satisfied if the client shows:−

i) that there is no sufficient narrative in the bill to identify what it is he is being charged for, and

ii) that he does not have sufficient knowledge from other documents in his possession or from what he has been told reasonably to take advice whether or not to apply for that bill to be taxed.

The sufficiency of the narrative and the sufficiency of his knowledge will vary from case to case, and the more he knows, the less the bill may need to spell it out for him. The interests of justice require that the balance be struck between protection of the client’s right to seek taxation and of the solicitor’s right to recover not being defeated by opportunistic resort to technicality.

71. On the facts of this case each bill was obviously and latterly expressly for professional charges. Even though it may have been perfectly obvious, the bills did identify the matter. Crucially for a determination of what was being charged for, the bill identified the period over which the work was being done. These bills may not have said much, but they did say something.

72. Whether the client’s knowledge was sufficient to supplement the lack of full narrative is a matter of fact. The judge held upon a review of the evidence that it was inappropriate to strike out the claim since Mr Ralph had shown a real prospect of establishing at the trial that Mr Gwillim knew all he needed to know about the work and the basis of charging reasonably to be able to exercise his right to seek taxation. I could not possibly interfere with those conclusions which, if the law is as I have stated it to be, were inevitable in the particular circumstances of this case. I would, therefore, dismiss the appeal.

73. I add this postscript for the profession’s consideration so that an unseemly dispute of this kind does not happen again. Surely in 2002 every second of time spent, certainly on contentious business, is recorded on the Account Department’s computer with a description of the fee−earner, the rate of charging and some description of the work done. A copy of the print−out, adjusted as may be necessary to remove items recorded for administrative purposes but not chargeable to the client, could so easily be rendered and all the problems that have arisen here would be avoided. In these days where there seems to be a need for transparency in all things, is a print−out not the least a client is entitled to expect?

A full copy of the judgment can be found here: Ralph Hume Garry v Gwillim [2002] EWCA Civ 1500.

A bridge too far

The text of this article first appeared in the December 2016 issue of Litigation Funding.

The recent decision of HH Judge Waksman QC in the Commercial Court in the case of Essar Oilfields Services Limited v Norscot Rig Management PVT Limited [2016] EWHC 2361 (Comm) repays careful reading, as it is the one of the few decisions of the High Court on the measure of recoverable costs in an international arbitration, albeit one conducted in London under the auspices of both the ICC Rules and the Arbitration Act 1996.

The case is notable chiefly for the endorsement by the court of the recovery of the charges made for the provision of third party funding to the winning party, as an item of “other costs” by the receiving party, under section 59 of the Arbitration Act 1996.

The background facts can be briefly stated.The case involved hard fought arbitral proceedings before Sir Philip Otton sitting as the arbitrator, concerning the commercial dispute arising out of the breach of an Operations Management Agreement relating to the sem-submersible offshore drilling platform “Wildcat”. Essar lost those proceedings. Essar had indemnity costs awarded against it. Norscot obtained from Woodsford, a third party funder, the sum of £647,086.49 on the basis that either 300% of the sum advanced would be paid by way of fee, or 35% of the total recovery, whichever was the higher.

The point which arose from the Fifth Partial Award and it’s Addendum, was whether the arbitrator’s award of this sum, the charge made for litigation funding, as part of the costs of the arbitration constituted a serious irregularity on the part of the arbitrator in that he had no power through a combination of sections 59 and 63 of the Arbitration Act 1996 to award this sum.

The parties had excluded a right of appeal on a question of fact or law, by their agreement to use ICC Rules.

Although issues of a time bar, waiver and whether the challenge was properly to be construed as an appeal on a point of law, rather than an irregularity challenge, the principal point of interest of the judgment, lies in whether the charge for litigation funding was a sum the arbitrator had power to award as an item of “other costs”.

Essar’s case was straightforward: the argument ran as follows. Properly construed neither the combination of section 59 nor 63 of the Arbitration Act 1996 or rule 31 of the 1998 ICC Rules gives an arbitrator the power to award the charges made for funding the costs of the arbitration. There is a clear distinction between “the costs of the arbitration” and the “cost of financing the costs of the arbitration”. The two are conceptually distinct and it is the former that are recoverable but not the latter.

The wording “other costs” in the relevant section. when considered in context, should not permit the recovery of the “cost of financing the costs of the arbitration”: rather its focus was narrower and directed at permitting for example, litigant in person costs, costs of managerial time, costs of employees acting as experts or other analogous categories of costs.

Rather, the “cost” of financing arbitration costs is properly to be considered in the context of an award of interest on costs under section 49 of the Arbitration Act 1996

Developing the argument, section 59 of the Arbitration Act 1996 states as follows:

1)References in this Part to the costs of the arbitration are to—

(a)the arbitrators’ fees and expenses,

(b)the fees and expenses of any arbitral institution concerned, and

(c)the legal or other costs of the parties.

(2)Any such reference includes the costs of or incidental to any proceedings to determine the amount of the recoverable costs of the arbitration (see section 63).

The starting point when considering this section is that it gives the arbitrator power to make an award of “the costs of the arbitration”.

Secondly that it specifies the type of costs that can be awarded by reference to subsections (1)(a) to (c) of which the words “other costs” are residual words.

Thirdly that it does not expressly provide for the charges for financing the “costs of the arbitration” to be recoverable.

Fourthly that the section as a whole and the particular words of the residual category of “other costs” which the Defendant has to rely on, to justify the award of the cost of litigation funding has to be interpreted according to the canons of statutory construction: in particular was it intended to include in 1(c) for example some “other costs” and also the cost of financing such “other costs”?

The better view, Essar contended is that “other costs” is to be construed narrowly to include categories of expenditure other than purely legal costs, with the cost of financing that expenditure dealt with under section 49 as an award of interest?

The award of costs was made in the context of an arbitration, not litigation, but the issue on is primarily concerned with the construction of an English statute made by Parliament: the statute does not stand in a vacuum, and the ultimate question is what did Parliament intend when enacting this statute in order to determine its construction.

The position in English law generally, is that the cost of financing litigation, has always been irrecoverable as an item of costs and is reflected instead in an award of interest. See Motto.v.Trafigura Ltd [2012] 1 WLR 657  at paragraphs 104 to 107 with its observations on the irrecoverable nature of the cost of funding and the case of Simcoe.v.Jacuzzi [2012] 1 WLR 2393 at paragraphs 39 to 42, which explains the purpose of an award of interest on costs is to compensate for the cost of financing the litigation.

The cost of litigation funding is a paradigm example of a cost of funding that has never been recoverable. Other examples are general or bridging loans, or less obviously, success fees and ATE premiums, which required statutory intervention through the Access to Justice Act 1999, to be recoverable as a cost inter partes.

The Access to Justice Act 1999, in force from 1st April 2000 to 1st April 2013, permitted the recovery of success fees and ATE premiums: costs which were otherwise irrecoverable at common law. The repeal of those provisions by the Legal Aid Sentencing and Punishment of Offenders Act 2012, means that the situation in the English courts, is as it always was prior to the 1999 statutory experiment: the cost of funding litigation costs is irrecoverable as a head of costs.

It is trite law that in litigation only legal costs can be recovered at common law: see London Scottish Benefit Society.v.Chorley [1884] XIII QB 872. Thus the time of a layman conducting litigation, loss of managerial time, the cost of employees acting as experts are not recoverable.

In respect of litigants in person, statutory intervention has occurred to ensure they can recover costs in respect of the time that they spend conducting their litigation: absent CPR rule 46.5 such costs would prove irrecoverable. This is the backdrop, to which it must be contended by the receiving party, that Parliament intended, to permit the charges for financing “the costs of the arbitration” to be recoverable.

An enactment by implication imports any principle or rule of law (whether statutory or non-statutory) which prevails in the territory to which the enactment extends and is relevant to its operation in that territory. As a general rule Parliament must have been taken to have legislated against the background of the general principles of the common-law (Bennion on Statutory Interpretation 6th edition at 929-937).

The Latin words ejusdem generis (of the same kind or nature) have been attached to a principle of construction whereby wide words associated in the text with more limited words are taken to be restricted by implication to matters of the same limited character. The principle may apply whatever the form of the association, but the most usual form is a list or string of genus describing terms followed by wider or residuary sweeping up words (Bennion on Statutory Interpretation 6th edition at 1105 to 1108)

The court seeks to avoid a construction that cures the mischief the enactment was designed to remedy only as the cost of setting up a disproportionate counter-mischief, since this is unlikely to have been intended by Parliament. Sometimes however, there are overriding reasons for applying such a construction, for example where it appears that Parliament really intended it or the literal meaning is too strong (Bennion on Statutory Interpretation 6th edition at 901 to 904).

The starting point must be that the purpose of the section is to award the “costs of the arbitration”. A charge made for financing the “costs of the arbitration” is conceptually distinct from the “costs of the arbitration”. A clear analogy is to be drawn with the “costs of the litigation” and the cost of financing the “costs of the litigation”. On this point alone, it is clear that the ambit of sections 59 and 63 cannot stretch to anterior costs, or wide categories of economic loss arising from engaging in arbitral proceedings.

The residuary category “other costs” is readily capable of meaning, those costs which would be irrecoverable in litigation due to the general prohibition noted above: but which share the common quality of being “costs of the arbitration”. Otherwise, logically, on the arbitrator’s approach, “other costs” means all types of economic loss or cost, provided they can be quantified in pounds and pence that might be sustained in litigation. The statutory focus is narrower than that.

The statute does not say in subsection (1)(c) that recoverable under section 59 are legal costs, and the costs of financing those legal costs: instead “other costs” is a sweeping up, residual category. On a natural and ordinary interpretation, bearing in mind the statutory purpose is to provide for awards of costs in various different arbitral contexts such that it will encompass such elements as litigant in person costs, the costs of managerial time, the costs of employees acting as experts or other analogous categories of costs.

What it should not encompass, both as a matter of natural and ordinary interpretation and when considering the purposive construction to be provided to the statute, is categories of economic loss, such as the cost of funding litigation which have never been recoverable at common law.

Instead, it could be argued the solution adopted by Parliament, to compensate a successful party who has made expenditure on legal costs during the course of litigation is an award of interest, a structure mirrored by section 49 of the Arbitration Act 1996 (interest) and section 59 (costs).

In such a context, when enacting the scheme of the Arbitration Act 1996 it can be noted that Parliament extended the ambit of recoverable costs of the arbitration, to include costs under sections 59 and 63 which would otherwise be caught by the general prohibition “other costs” and also provided for an award of interest under section 49 which can be simple or compound interest, and the rate of which is discretionary.

In those circumstances Parliament has provided a broad definition of recoverable costs and also allowed for an award of interest, to compensate at least in part for the cost of financing arbitration costs. There is no requirement therefore for section 59(1)(c) to practically overlap with section 49 in dealing with the financing of costs. Indeed, the construction adopted by the arbitrator, conflicts with the statutory scheme, a point which will be developed below.

The ejusdem generis rule provides that ostensibly wide phrases, which in fact form a residuary category, are to be construed narrowly based on the same categorisation as applies to the limited words preceding it. Legal costs, represent a solicitors profit costs and disbursements, chargeable to the client. They represent an expenditure on work done which is progressive and falls within the scope of advice, preparation for and appearance at the arbitration. They do not include the cost of financing any part of the arbitration costs.

Similarly “other costs” should be read as limited to a fee or expense charged for work done which constitutes, advice preparation or appearance at the arbitration: something spent which can properly be said to be part of the “costs of the arbitration.” To construe “other costs” more widely, is to say that the costs of financing the costs properly falls within a residuary category, far wider than the limited words preceding it. Such a construction is impermissible on the ejusdem generis principle.

Perhaps the simplest point is this: the statutory scheme contemplates an award of costs and an award of interest meant to compensate the receiving, for, amongst other things the costs of financing its costs. The construction adopted by the arbitrator merges the two concepts reflected in two different statutory sections, in a way that it is submitted runs counter to the intention of Parliament, as to how the two issues are to be separately addressed.

These arguments were rejected by the court. The result is that by endorsing the decision of the arbitrator, the law has been changed, so that in arbitration proceedings, the award of charges for litigation funding is now lawful as an item of “other costs”. This is an immediate consequence. There are three further consequences.

The first, is that although funding was obtained in this case from a bespoke litigation funder, as a point of principle the receiving party was in no different position than any party who funds litigation through a loan, be it credit card, overdraft, family member or high street bank and has to pay interest or a fee for the financial accommodation they are granted. Presumably such charges are now also recoverable as “other costs”.

The second, is that arbitration is now a much more attractive option than litigation in the Commercial Court, given the limitations of recovery of litigation costs. Given the pronouncements in the last year or so of the Lord Chief Justice, bemoaning the lack of appeals from arbitration proceedings to the High Court, the irony is acute.

The third consequence, is that no further appeal was possible from this decision to the Court of Appeal, due to the bar in section 68(4) of the Arbitration Act 1996, once the High Court had refused permission. Accordingly, it will be years, before this issue is reconsidered, if it ever is, by the Court of Appeal in some other case.