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New on Litigation Futures: monthly cost cases summary

In a new feature, Litigation Futures is publishing a monthly summary of key costs-related court decisions. These are provided by CaseCheck [1]


Royal Courts of Justice: key costs rulings

Davies v Watkins [2012] EWCA Civ 1570
Appeal concerning the approach to costs of a Beddoe application on the ground that the trustee was entitled to an indemnity out of the estate.

Held: The normal rule for costs of the application for direction that, absent improper conduct, the costs of the trustee and of the beneficiary defendants will be paid out of the trust fund applied. The judge erred in exercising the court’s general discretion as to costs in ordinary litigation instead of starting from the special position of an application for directions by a trustee, with the special rules and practice that apply to such proceedings.

Full ruling here [3].


Connell v Mutch [2012] EWCA Civ 1589
Appeal against an issue-based order for costs dismissed.

Held: It would have been better for the judge to make an order that the claimant/appellant recover only a proportion of his costs and to have made no order for costs in favour of the defendant/respondent, as contemplated by CPR 44.3(6)(c). Such an order is usually in the interests of both parties as minimising the need for further argument at the assessment stage.

However, the judge’s approach did not fall outside the ambit of reasonable decision-making and the litigants would not benefit from an interference with the order. It would be costly and set a bad precedent if the matter were remitted to the judge to craft a proportionate recovery order: ‘No encouragement should be given to appeals of this nature’ (at [28]).

Full ruling here [4].


Webb Resolutions Ltd v Waller Needham & Green [2012] EWHC 3529 (Ch)
Pursuant to the acceptance of a part 36 offer, the court was asked to make an order as to costs where the claimant failed to comply with the professional negligence pre-action protocol by refusing to disclose documents.

Held: The normal rule is that the claimant gets costs up to acceptance by the defendant of the offer unless the defendant can show that it would be unjust to do so taking into consideration all of the circumstances of the case, including those expressly set out in CPR 36.14(4), whether or not there has been substantial compliance with the protocol and whether sanctions might be appropriate (SG v Hewitt [2012] EWCA Civ 1053 [5] followed).

In the present case, a normal order under CPR 36.10(4) would be unjust: the claimant’s refusal to provide documentation necessary for the defendant to assess its liability was not reasonable and consistent with the expressed aim of the protocol. Claimant awarded costs up to the date when it refused to disclose but ordered to pay the defendant’s costs incurred thereafter.

Full ruling here [6].


Ryder plc v Beever [2012] EWCA Civ 1737
Appeal concerning an application for relief from the sanction of strike-out for failing to serve a costs schedule.

Held: The delay in providing the costs schedule had not caused any real prejudice to the defendant, nor had it delayed the progress of the action. There was no justification for striking out the action when its overall effects were not grave, considered together with the potentially severe prejudice which would be caused to the claimant if relief were refused.

In any event, the powers of the court on making a costs order are wide and allowance can be made at the part 36 offer stage for any prejudice that a party has suffered as a result of the delayed service of a costs schedule.

Full ruling here [7].

NB We have not included Henry v NGN as it has been extensively reported on Litigation Futures already