Costs News

10 September 2020
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News in brief - 10.09.2020

“Sloppy” litigation costs warning

“Sloppy” litigation conduct can justify an order for indemnity costs on its own, but it needs to push the case out of the norm, the High Court has ruled.

His Honour Judge Matthews in Bristol, sitting as a High Court judge, said the actions of the applicant in Swift v Brake and Ors [2020] EWHC 2416 (Ch) had resulted in an “inefficient resolution” of the part of the litigation under scrutiny.

This included no sending pre-action correspondence, not complying with some of the directions made by the court, not discontinuing the application once the applicant had no further interest in the claim, and not responding to a strike-out application – it was eventually struck out effectively for want of prosecution.

HHJ Matthews said: “Looking at the matter in the round, although I regard the applicant's conduct the proceedings as far from ideal, and indeed deserving of some criticism, I do not think that it goes so far as to justify an order for costs on the indemnity basis.

“It is simply sloppy conduct, which in these days is sadly more and more common. I do not say that sloppy conduct on its own can never justify an order for indemnity costs. But it does have to be such as to push the case out of the norm. So I will order costs to be paid on the standard basis, to be subject to detailed assessment if not agreed.”


Litigation friend “should not have been ordered” to pay costs

The High Court was wrong to order a litigation friend, acting for children, to pay costs after unsuccessfully applying to challenge the settlement of a trust dispute, the Court of Appeal has decided.

Lord Justice Newey said the approach to costs orders involving litigation friends of defendants, and not claimants, should have been applied because the children “were responding to the main proceedings and their exclusion from it”.

In Glover v Barker and others [2020] EWCA Civ 1112, Newey LJ said where, as in this case, the litigation friend had not previously given an undertaking to pay costs, the power to make a costs order derived “exclusively” from section 51 of the Senior Courts Act 1981, which meant that the question was whether “in all the circumstances” it was just to make the order.

It would “typically be just” to order a claimant’s litigation friend to pay costs if an order would have been made against the claimant “had he not been a child or protected party”, but the court was exercising a discretion and was entitled to have regard to the circumstances.

“There is no presumption that a defendant’s litigation friend should bear costs which the defendant would have been ordered to pay if not a child or protected party.”

Newey LJ said Mr Justice Morgan “erred in principle” to think that courts should apply a general approach to costs that litigation friends should be liable for those costs which the relevant party, if an adult, would normally have to pay.


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