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

18 June 2020

William Mackenzie gives his views of the most important costs cases and issues of the last 3 months.

MEF v St George's Healthcare NHS Trust

A Calderbank offer which had been restated prior to a detailed assessment and contained no time limit, could be accepted part way through the detailed assessment. 

Comment: Whilst this was a fact specific judgment, the take away is that if you make a Calderbank offer you should put a reasonable time limit on it for acceptance. The contract common law principles of offer and acceptance apply, and if an offer which does not have a time limit for acceptance is rejected then it no longer remains open for acceptance. This case should have limited application but if you have a habit of making offers without time limits you should check to make sure they do not put you at risk at assessment. In addition, if your detailed assessment is going badly, it is worthwhile reviewing the papers to see if your opponent has any Calderbank offers which remain open for acceptance.

Aldred v Cham, Ho v Adelekun and the Supreme Court

The Supreme Court confirmed that permission to appeal had been refused because the application did not raise a point of law of general public importance, but it was appropriate for the Civil Procedure Rules Committee to reconsider the matter. The appeal related to the recovery of counsel's fee for attending an infant approval hearing, and translation fees in fixed costs cases.

Comment: For the time being these disbursements remain unrecoverable, and we have a little more certainty to the fixed costs rules. The Civil Procedure Rules committee (CPRC) have said this is something they are going to review but it remains to be seen what action they take.

We await to see what the Supreme Court say in relation to Ho v Adelekun and the issue of set off and QOCS. A hearing date is yet to be set. The CPRC have said they will await the decision from the Supreme Court before considering this issue further.

Nosworthy v Royal Bournemouth & Christchurch Hospitals NHS Foundation Trust

Master Brown rejected a claim for interest on disbursements, claimed to indemnify the claimant for interest paid on a funding loan. He questioned whether the court does in fact have the power to make an award of interest under CPR 44.2(6)(g) as opposed to just altering the period for the judgment rate to apply. But even assuming he had the power he declined to exercise his discretion.

Comment: This appears to be a policy decision, seemingly to try and close the door on such claims in a PI/clinical negligence context. He took the view that it would be a disproportionate exercise to examine such a claim and award distinct interest.

Maurice Hutson & Ors v Tata Steel UK Ltd

A Judge held that just because the timetable was going to be longer than expected, it wasn't a good reason to revise budgets.

Comment: Therefore, if Covid gives rise to extended timetables, then this would not necessarily give rise to a good reason to depart from the budget.

Siddiqi v Aidiniantz

A claimant who was bringing a claim (the history is quite detailed but not relevant here) was subject to some interim costs orders. He did not pay them. He could not provide evidence that he could not pay the debts and therefore the court made an order that if he did not pay the sums due his claim would be stayed.

Comment: Paying parties can use this if they are owed money from any interim orders made in their favour during the life of the claim. If they are worried about QOCS and a claimant not paying, they might apply to the court for an order the claimant pay any interim orders, failing which the detailed assessment be stayed/struck out. In addition, it might be a good opportunity to seek an order for set-off pursuant to Howe v MIB.