Costs News

17 February 2022
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News in brief - 17.02.2022

New ACL chair steps forward

Jack Ridgway, a senior Costs Lawyer at London law firm Bolt Burdon Kemp, which specialises in serious injury claims, is to take over as chair of the ACL in May, replacing Claire Green.

Mr Ridgway said: “I’m excited to become chair at a time when a strong foundation for education has been re-established and the Association can now focus on promoting its members and their interests.

“I think the Association can offer real benefits to Costs Lawyers as a representative body and that will be my focus.”

 

High Court attacks “pernicious” growth of satellite costs litigation

The High Court has hit out at the “pernicious” growth of satellite disputes arguing “every aspect of costs”.

In Crypto Open Patent Alliance v Wright [2022] EWHC 242 (Ch), His Honour Judge Paul Matthews, sitting as a High Court judge in London, was ruling on the costs of two preliminary hearings, which mainly went in favour of the claimant.

But he highlighted satellite costs disputes as “a recurring, but highly undesirable, feature of modern litigation”.

The judge said: “I am sorry to be old-fashioned but, when I started in practice, this kind of thing just did not happen. The losing party accepted liability for the costs, and the receiving party only rarely argued for indemnity costs. (Summary assessment had not then been introduced.)

“Nowadays, it seems, losing parties nearly always argue that they should not pay the costs at all (I do not know when the last time was that I heard counsel use the phrase ‘I cannot resist that’) and winning parties nearly always argue that costs should be on the indemnity basis.

“This modern kind of satellite litigation is pernicious. In my view, it has the effect of diminishing overall justice and thus gives English civil procedure a bad name.”

The judge said costs decisions, other than detailed assessments, were supposed to reflect the broad justice of the case. “They are therefore intended to be merely the tail to the dog, and not the dog itself.”

He considered summary assessment to be an example of this. Despite the benefits of the process, parties “persist in arguing minor costs assessment issues, seeking to claw back this or that fraction of costs or small expenditure. This is not cost-effective. It is merely disruptive. The costs of the argument must often outweigh even the value of what is in issue”.

The claimant sought £123,000 in costs for a one-day hearing, which HHJ Matthews described as “extraordinarily high”.

Even though each side “apparently has a lot of money to spend” and considered the litigation “worth the candle”, HHJ Matthews said: “At the end of the day, I have to reach an objective decision based on the rules that apply to everyone’s disputes, from prince to pauper, and whether conducted by City mega-firm or high street sole practitioner.”

The costs claimed were not proportionate, reasonably incurred or a reasonable amount, due to insufficient delegation of work down to less expensive fee-earners, too much time spent on the evidence and excessive attendance at the hearing. He summarily assessed the costs at £70,000.

HHJ Matthews attacked the conduct of the parties more broadly, calling it an example of “bad-tempered litigation, which is regrettably becoming more and more prevalent in the English courts”.

He went on: “It somehow seems to have become acceptable for solicitors to become mere mouthpieces for their clients to vent their anger at their opponents.

“It is not enough for the clients to dislike or even hate each other: the solicitors must do so too.

“I simply do not understand why in 2022 professional, trained lawyers, who should know how to stand up to their clients and concentrate instead on what is important in the litigation, think it is appropriate to behave like schoolchildren in the playground.”

Bird & Bird acted for the claimant and Ontier for the defendant.

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