Costs News

18 July 2019
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News in brief - 18.07.2019

Time to vote

Members still have time to vote for who they want to fill the two new vacancies on the Council. There are six candidates standing. Voting closes tomorrow. Any queries, email enquiries@costslawyer.co.uk.

 

Costs warning over non-compliant bundles

The Court of Appeal has warned parties that they can expect to be denied recovery of the costs of preparing non-compliant bundles of authorities.

In a postscript to Parr v Keystone Healthcare Ltd and Ors [2019] EWCA Civ 1246, Lord Justice Lewison said: “It is a matter of considerable regret that the practice direction on the citation of authorities at [2012] 1 WLR 780 (referred to in PD 52C paragraph 29 (2)) has been almost wholly ignored. We were supplied with print-outs and handed down transcripts of authorities that have been reported in the official law reports... Unreported cases were cited for propositions that could be found in reported ones. The whole of my gargantuan judgment in Ultraframe (UK) Ltd v Fielding (which runs to 494 pages) was copied, even though only a few pages were of any conceivable relevance to the issues on the appeal. Contrary to PD 52C paragraph 29 (2), many of the authorities were supplied without marking the relevant passages.

“Judges of this court have limited time for pre-reading in advance of an appeal. Adherence to the practice directions means that that limited time can be more productively spent. Parties can expect that the cost of preparing a non-compliant bundle of authorities is at risk of being disallowed.”

 

Calderbank offer consultation

The Family Procedure Rule Committee this week issued a consultation on whether to amend the rules to enable any the offers which are made ‘without prejudice save as to costs’ (i.e. Calderbank offers) to be taken into account as ‘conduct’ when the court is considering making an order requiring one party to pay the costs of another party.

It said: “Any such new provision would be made on the basis that the general ‘no order’ rule set out in FPR 2010 rule 28.3(5) should remain. In this way, excessive weight ought not to be attached only to whether one party has ‘won’ or ‘lost’ but proper account could be taken of whether either party has acted reasonably or unreasonably in the course of their negotiations (including those undertaken “without prejudice save as to costs”) having regard to all of the matters to which the court is required to have regard under FPR 2010 r.28.3(7) when deciding whether it is ‘appropriate’ to make an order requiring one party to pay the costs of another party having regard to ‘conduct of the party in relation to the proceedings’ under FPR 2010 r.28.3(6).”

However, the committee’s costs working group unanimously rejected the introduction of any procedure equivalent to part 36 on the basis this would be “unduly complex and restrictive”, and likely lead to satellite litigation.

“It was considered that any such procedure would be inappropriate (and so largely unworkable) in financial remedies cases, in which the concept of whether one party has ‘won’ or ‘lost’ is often much less clear than in conventional civil litigation given the range of possible orders and outcomes available to the court.”

The consultation closes on 31 October. Respond online here.

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