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The hot take – a round-up of recent Costs news

06 March 2020
William Mackenzie reviews four recent Costs judgments and looks at the implications for future cases.

Ainsworth v Stewarts LLP

The Court of Appeal upheld a decision of a Costs Master who struck out a set of points of dispute for not properly particularising the disputes within the document schedule. The paying party had taken a 'broad brush' approach to the documents.

Comment: This was a solicitor and client assessment and the judgment should only apply to such assessments. The paying party previously had sight of the receiving party's file of papers, which is not the case in an assessment between the parties. There are a number of comments dotted throughout the judgment making it clear that the 'broad brush' standard paragraph set out in template precedent points of dispute annexed to the CPR does not apply. Expect a flurry of receiving party Costs Lawyer's erroneously referring to this judgment. 

Read more at Litigation Futures >

Faulkner v Secretary of State for Energy and Industrial Strategy

The Court followed the binding decision of Howe v MIB and has restated that the Court has discretion to order set-off of costs even where QOCS provisions may bite. On the particular facts of this case, the Court declined to order set-off as the Defendant's application to disapply was particularly weak and was always "doomed to failure".

Comment: Although the Court declined on the facts of this case, it serves as a timely reminder that even if you are caught by QOCS provisions there is still scope to maximise recoveries by seeking set-off of costs. 

Read more at Civil Litigation Brief >

Turner v Cole

In Turner v Cole, Liverpool's Regional Costs Judge has ruled that parties can contract out of fixed costs Judge. Following the decision of the Court of Appeal in Ho v Adelekun, District Judge Baldwin said that it was open to parties to contract out of the fixed costs regime.

Comment: This judgment highlights the importance of parties getting the terms of any settlement correct. It isn't permissible for a party to think the issue can be palmed off and dealt with at assessment. Equally, had the insurer held out that fixed costs were payable, there is little the Claimant could have done. The Court of Appeal in Qader v Esure confirmed that fixed costs would have been payable until allocation to the multi-track.

Changes to the CPR

Following the case of Brown v Commissioner of Police of the Metropolis the Rules are to be amended. In his judgment Lord Justice Coulson held that if there were exceptional features of the non-personal injury claims (such as gross exaggeration of the alternative car hire claim, or something similar), then it may be permissible to disapply QOCS for those elements. The change will remove the lacuna currently present in the Rules.

Read more at Litigation Futures >

Further Reading