Costs I

Question 1

What is the general rule as to costs?

Answer 1

The loser generally pays the winner’s costs

Question 2

Do winners of trials recoup all of their costs?

Answer 2

No - this is incredibly rare.

Question 3

What is the underlying principle of costs?

Answer 3

The court has discretion on who pays whom, how much and when (44.2)

Question 4

What are the exceptions to the general rule of costs?

Answer 4

General rule does not apply to CA in family or probate proceedings

Question 5

What 3 things will the court consider when deciding what costs order to make?

Answer 5

(1) parties conduct (2) parties success in at least parts of claim (3) any admissible offers (where Pt36 consequences don’t apply)

Question 6

What is considered the “conduct” of parties when deciding a costs order?

Answer 6

pre-action conduct, reasonableness and manner of pursuing or defending issues, and whether a successful C exaggerated their claim.

Question 7

How many costs orders are generally available?

Answer 7

7

Question 8

What are the 7 costs orders available?

Answer 8

(a) proportion; (b) stated amount (c) between fixed dates (d) pre-proceedings (e) for a particular step only (f) distinct part of proceedings only (g) interest on costs between fixed dates (can be pre-proceedings).

Question 9

Where can you find the 7 options for costs orders?

Answer 9

CPR44.2(6)

Question 10

What are the special rules for costs relating to a distinct part of proceedings (44.2(7))?

Question 11

What does the court do if a party is ordered to pay costs once a detailed assessment is done?

Answer 11

Court orders reasonable sum paid on account of costs (an interim payment) unless good reason to not

Question 12

How long do parties have to comply with costs orders?

Answer 12

14 days of the order if it specifies costs; or within later date of certificate if specified.

Question 13

CPR 44.11(1)?

Answer 13

Court has power to make costs orders where a party or legal rep has failed to comply or been unreasonable.

Question 14

If court gives a costs order for breaching OI or CPR, how are parties told?

Answer 14

If not there, the legal rep must tell their party in writing less than 7 days after notice is given of the order.

Question 15

What is qualified one way costs shifting for?

Answer 15

qualified one way costs shifting is for PI claims only

Question 16

What is qualified one way costs shifting?

Answer 16

QOCS limits the liability of a losing claimant in PI to pay winning Ds costs

Question 17

What can the court do when a party owes and is owed costs?

Answer 17

Court can either set off the difference (i.e. subtract) or require any payment due before issuing a certificate for costs

Question 18

What are the 2 effects of a QOCS?

Answer 18

(1) Claimant can never be ordered to pay > they won (2) any costs D is entitled to can be enforced against C without permission as long as not exceeding

Question 19

When can QOCS orders against C be made?

Answer 19

Only where proceedings are concluded and costs have been assessed

Question 20

How does QOCS apply if both C and D win?

Answer 20

If C and D both partially win, QOCS doesn’t apply and instead the court can set-off the difference under 44.12

Question 21

What is the exception to QOCS that REQUIRES court permission?

Answer 21

When a claim is found to be “fundamentally dishonest” (even if not struct out) D may obtain full costs against a PI C

Question 22

What exception to QOCS does not need court permission?

Answer 22

Where claim had no reasonable grounds or was an abuse of process, conduct obstructs justice, D can obtain full costs against a PI C

Question 23

When must parties provide a statement for costs discrepancies?

Answer 23

If there is >20% difference between the costs budget and costs upon DETAILED ASSESSMENT the party must give reasons why

Question 24

How does the court determine reasonableness and proportionality of costs?

Answer 24

by reference to last approved costs budget + loose regard of all other budgets

Question 25

How can paying parties contest their costs orders?

Answer 25

By demonstrating reasonable reliance on costs budget to show disproportionality of what others are claiming for

Question 26

If a paying party demonstrates reliance on a costs budget, what can the court do?

Answer 26

If payer reasonably relied on budget - court may restrict costs to a 'reasonable sum' EVEN if the "unreasonable" OG amount is reasonable and proportionate.

Question 27

When will the court decide that the excess of a costs budget is unreasonable?

Answer 27

If the party set to receive the costs cannot explain why they have incurred higher costs - these costs can be deemed additional

Question 28

Can the trial court comment on costs hearings?

Answer 28

Yes - re: whether the hearing is fit for counsel attendance

Question 29

What costs does the court have power over?

Answer 29

All costs "of or incidental to" proceedings - anything "in some degree relevant" to subject of proceedings

Question 30

What should be done when costs orders are given?

Answer 30

Judges should always give their reasons for costs orders - especially if the costs are disproportionate

Question 31

What happens if the court doesn't make a costs order?

Answer 31

The costs "lie where they fall": each party is responsible for their own costs incurred

Question 32

How should courts approach separate issues in proceedings when making costs orders?

Answer 32

Courts should be willing to make proportional costs orders with reference to particular issues not just overall outcome

Question 33

When should the court consider using issue-based costs?

Answer 33

Where a party raises an unsuccessful issue - even if they win trial - court should consider revoking or requiring costs on that issue. ENORMOUS DISCRETION v fact based

Question 34

How far do costs of a counterclaim extend?

Answer 34

A party awarded costs of a counterclaim only includes that which is specific to that counterclaim

Question 35

What evidence can be admitted for costs?

Answer 35

Any evidence can be admitted if relevant to costs - doesn't need to have been used at trial

Question 36

Are offers relevant to costs?

Answer 36

Yes - except offers wholly without prejudice

Question 37

What are indemnity costs?

Answer 37

Indemnity costs are where the paying party pays reasonable but not proportionate costs - often very punitive

Question 38

What is the burden of proof for indemnity costs?

Answer 38

Paying party must prove that the owed costs are unreasonable - inverting the standard rule - can include fines up to £75k.

Question 39

What are standard costs?

Answer 39

Owed party must prove their costs are reasonable and proportionate

Question 40

Can ADR affect costs?

Answer 40

Sort of - unreasonably refusing ADR may allow for indemnity costs

Question 41

What is a Bullock Order?

Answer 41

A costs order used where there are multiple Ds both won and lost against by C: C can recover costs paid to D1 from costs owed by D2.

Question 42

Which is more suitable, a bullock or sanderson order?

Answer 42

A bullock order is usually better suited.

Question 43

What is a sanderson order?

Answer 43

simpler than bullock order. Where theres 2 Ds and one C; the successful D1 when sued in the alternative, recovers their costs from unsuccessful D2.

Question 44

Do appeals pause costs assessments?

Answer 44

No

Question 45

What costs are assessed by the court?

Answer 45

Anything not fixed, whether summarily or detailed

Question 46

Who pays costs in ADR?

Answer 46

Generally, parties pay their own costs - no general rule that the winner gets costs.

Question 47

How can self-payment of costs in ADR be changed?

Answer 47

By Part 36 offers; as settlement in contract; as awards by third parties

Question 48

What are the two types of costs assessments?

Answer 48

Detailed and summary assessments

Question 49

When should summary assessments of costs be done?

Answer 49

End of trial on fast-track, end of any other hearing <1 day unless good reason to not

Question 50

How should parties assist judges with summary cost assessments?

Answer 50

By producing schedules of costs with hours etc: filed at least 2 days before fast track trial, 24 hours other hearings.

Question 51

When must scheduled costs be served on court?

Answer 51

At least 2 days before fast-track trials or 24 hours before any other hearings.