Cases

 

The Court of Appeal gave guidance as to when non-party costs orders would be made against credit hire companies in cases where an impecunious claimant who had hired a replacement vehicle following a road traffic accident had been ordered to pay costs to the successful defendant and the qualifying one-way costs shifting regime applied.

 

 

Certain points of dispute filed in a detailed assessment of costs were struck out as insufficiently particularised. The paying party had raised the same six points against 1,080 timed items of work claimed by the receiving party.

 

 

A judge had been entitled to refuse a claimant’s application to make an order preserving the existing rules as to the enforcement of a costs order under CPR r.44.14. The claimant had been concerned that the existing qualified one-way costs shifting regime might be amended to permit enforcement of costs on a retrospective basis. However, the responsibility for making any changes lay with the Civil Procedure Rules Committee and the judge was therefore entitled to leave the matter to the committee. In the event, the claim was unaffected by the changes made as the Civil Procedure (Amendment) Rules 2023 r.24 only applied to claims where proceedings had been issued on or after 6 April 2023.

 

 

It was not appropriate to remove qualified one-way costs shifting (QOCS) protection from a claimant who had discontinued his personal injury claim at the last minute in the light of inconsistencies in his case or to set aside his notices of discontinuance where there was no evidence of abuse of process, dishonesty, or egregious conduct. Powerful reasons were required to set aside such notices or to remove a personal injury claimant’s substantive right to the protection of the QOCS scheme.

 

 

Although the court had discretion under CPR r.40.8 and r.44.2(6)(g) to award pre-judgment interest on costs from the date that they were incurred, it was important to avoid awarding interest from different dates and/or on different items or components of a costs assessment, and the discretion should be exercised on a “broad brush” basis. Pre-judgment interest should only be awarded where justice required a departure from the general incipitur rule, which was to award interest at the Judgments Act 1838 rate from the date of the costs order.

 

 

In personal injury proceedings where the claimant had accepted a Part 36 offer after the expiry of the relevant period, such that the claimant required the court’s permission to accept the offer, an order which provided that the claimant should pay the defendant’s costs from when the relevant period expired, and further provided under CPR r.36.22 that benefits paid to the claimant since the offer was made should be deducted from the settlement sum, was not “an order for damages and interest made in favour of the claimant” within r.44.14(1), meaning that the defendant could not enforce or set off the costs order in its favour against the settlement amount due to the claimant.

 

 

 Where a claimant in a personal injury claim accepted a Part 36 offer out of time and the parties agreed that the defendant was accordingly entitled to some costs, CPR r.44.14 and the qualified one-way costs shifting regime prevented the defendant from enforcing the costs liability by way of set-off against the Part 36 settlement sum.

 

 

The claimant in a personal injury claim had entered into a concluded and contractually binding settlement agreement to recover the fixed costs provided for in CPR r.45.29C and Table 6B in section IIIA of Pt 45, thereby contracting out of any right he might have had to claim a larger sum by reference to r.45.29J. That agreement was not superseded by a subsequent Pt 36 offer made by the defendant.

 

 

Service of a notice of commencement of costs assessment to an email address which had not been agreed by the receiving party, but which had immediately and automatically been forwarded to the correct address, was not valid service under CPR PD 6A. However, there was a good reason to make an order under r.6.27 that sufficient steps had been taken to effect good service.

 

 

There was no error in a decision of the First-tier Tribunal that it was necessary, in the case of a seven-year-old boy with an autism spectrum disorder and other difficulties, for the local authority to make and follow an Education Health and Care plan under the Children and Families Act 2014 s.37. The word “necessary” in s.37(1) did not need to be over-defined: it was a word in common use, and what was “necessary” in any given case was an evaluative judgment to be made by the specialist tribunal.

 

 

 A claimant’s costs were in breach of the indemnity principle where he had been in material breach of the Courts and Legal Services Act 1990 s.58(3)(a) by entering into an unwritten conditional fee arrangement. Although a written agreement had existed, it had been conditional on the claimant obtaining after-the-event insurance which he had failed to obtain.

 

Nema v Kirkland [2019] 8 WLUK 301 

 

The detailed assessment procedure was disproportionate in a claim which had exited the Protocol for low value personal injury claims in road traffic accidents, and where a Part 36 offer had been accepted. CPR r.36.20 and Pt 45 s.IIIA between them provided comprehensive, self-contained provisions for the recovery of costs in such cases and avoided the risk of costs becoming disproportionate to the sums in dispute.

 

 

The court construed the proper meaning and application of CPR r.46.9(3) concerning the basis of detailed assessment of solicitor and own client costs. Litigation risk remained a relevant factor when determining a success fee under a conditional fee agreement. Having, as a starting point, a 100% uplift irrespective of litigation risk was unusual and would not be justified by capping the recovery to, say, 25% of damages. An after the event insurance premium was not a solicitor’s disbursement liable to assessment under the Solicitors Act 1974 s.70.

 

 

Under the qualified one-way costs shifting regime in CPR r.44.14(1) a defendant could enforce an order for costs out of damages payable to the claimant by another defendant. However, where the damages were payable to the claimant under the schedule to a Tomlin order, r.44.14(1) could not apply, as the schedule was not part of the court’s order but merely reflected agreement reached between the parties.

 

 

 A judge had been wrong to make a costs order against the unsuccessful claimant in a personal injury claim on the basis that the qualified one-way costs shifting regime in CPR r.44.13 to r.44.17 did not apply to Part 20 defendants added to the proceedings.

 

 

An arbitrator’s general power to award costs included the power to award the costs of third party litigation funding, which were “other costs” within the Arbitration Act 1996 s.59(1)(c).

 

 

 In a claim for damages arising from a road traffic accident where it was alleged that the claim was fraudulent and the credibility of two claimants was in issue, a judge had been wrong to exclude one claimant from court while the other gave evidence. The starting point was that a party was entitled to be present throughout a civil trial and although there were classes of case where a departure from the norm might be justified, the judge had not given sufficient reason for taking such a course.

 

 

The court considered the appropriate approach to granting relief from sanctions in cases where a defaulting party had delayed in applying for relief but could point to evidence which enabled it to allege that the claim was a fraudulent one. It was necessary to consider all the circumstances of the case; a default judgment could not be set aside as a matter of course just because an arguable fraud was alleged.

 

 

In an unusual and complex personal injury case the claimant had genuinely presented the psychiatric symptoms described soon after the work accident. In accordance with expert psychiatric opinion he had been suffering from an actionable psychiatric injury, namely hysterical pseudodementia.

 

 

Noise-induced hearing loss, sustained by a number of employees as a result of exposure to excessive noise at work, was a “disease” within the meaning of CPR Pt 45 so as to attract a success fee of 62.5 per cent where claims for damages were settled before a trial had commenced.

 

 

Outline planning permission was upheld for a mixed use development near a wood containing substantial breeding populations of nightjar and woodlark. There was a risk that the woodland could be included in a potential special protection area, but that had not been formally proposed and the planning authority had therefore been under no obligation to consult Natural England or accept its advice about that possibility.

 

 

 

 

 

The Administrative Division of the High Court did not have jurisdiction to perform a statutory review of two experimental traffic regulation orders, which had the effect of removing disabled parking spaces on a high street, on the basis that they breached the Equality Act 2010 s.29. The clear intention of Parliament was that claims under s.29 “must” be brought in the county court.

 

 

A local authority had not erred in granting a householder permission to build an extension. Although his neighbour had concerns about subsidence resulting from the construction work, those concerns could be dealt with through the Building Regulations 2010 and the Party Wall etc. Act 1996.

 

 

There had been sufficient evidence for a Crown Court to convict a company on two charges for breaches of an abatement notice by burning waste, including plastics and treated wood which created dark smoke and caused a nuisance to adjoining residential properties.

 

 

The Town and Country Planning Act 1990 s.215 afforded a local planning authority no power to issue a notice requiring a cessation of the use of land which did not contravene Pt III of the Act, and no power to issue a notice which failed to identify the substance of the mischief at which it was directed. A notice issued to a farmer was invalid where it referred to his land’s use but was in fact directed at graffiti on a trailer.

 

 

A local authority could not rely on its own ultra vires act, namely wrongly issuing a caravan site licence, to found a prosecution of the landowner for not having a valid licence.

 

 

A planning inspector had properly considered all relevant and material factors when determining that the conversion of a barn into a residential dwelling would not harm the character and appearance of the area, including the special landscape area.

 

 

The European Convention on Human Rights 1950 art.8 could not be extended to found any claim for damages for the failure of the Child Support Agency properly to pursue maintenance assessments.

 

 

An inspector’s recommendation that a brickworks site be reinstated into a local housing plan was not unconditional and the local authority was entitled to exclude the site on the basis that the underprovision of housing in the sub-area in which the site was located was offset by borough-wide overprovision of housing.

 

 

he applicant (C) applied for an extension of time to challenge parts of a local plan adopted by the respondent planning authority. The plan had been adopted by notice of adoption dated August 9, 2005. By the Town and Country Planning Act 1990 s.287(4) an application under s.287 challenging the plan had to be made within six weeks of that date. C’s claim form under that section had been issued on September 20, 2005 but it had not been served until September 23. C submitted that the procedural rules governing such an application for an extension were contained in the Civil Procedure Rules 1998 Part 3 r.3.1 . The local authority argued that the Civil Procedure Rules 1998 Part 7 r.7.5 and r.7.6 applied. C argued that the delay of one or two days was extremely short and had been due to the fault of the solicitors’ agent, that no prejudice had been suffered by the local authority and that the application to challenge the plan had strong prospects of success.

 

 

laimants alleged abuse in children’s home – Claimants made offers under CPR Part 36 – Judge found for claimants and damages awards exceeded Part 36 offers in some cases – Separate judgment on Part 36 – Appeal on liability led to increases in general damages so that award in case of all claimants who made Part 36 offers exceeded offer – Appeal on Part 36 issues – Claimants in respect of whom judge had not made Part 36 order not joined in Part 36 appeal – Court of Appeal had jurisdiction to add those claimants to appeal and make Part 36 orders in their favour even after order in main appeal sealed – Sealing of order did not deprive Court of Appeal of jurisdiction in ancillary matters.

 

 

Challenges to conditional fee agreements on ground that they did not comply with Conditional Fee Agreements Regulations 2000 – Court of Appeal gave guidance on interpretation of s 58 Courts and Legal Services Act 1990 and regs 2, 3 and 4 of 2000 Regulations.