Costs News

16 May 2019
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News in brief - 16.05.2019

ACL welcomes Allen ruling

The full ruling in Allen v Brethertons LLP [2019] EWHC B3 (Costs) – which we reported last week – has now been published here. It saw Master Leonard reject a challenge to a Costs Lawyer’s delegation of work to unqualified colleagues.

Responding to the decision, incoming ACL chair Claire Green (pictured) said: “Master Leonard has firmly dismissed this attempt to undermine the work of Costs Lawyers, who play a vital role in ensuring that the costs regime works smoothly and fairly. We are independent, regulated lawyers, with the attendant benefits and responsibilities that such status brings. This ruling should halt in their tracks what the judge called ‘arid technical objections’ to the recovery of the costs of our work.”

 

Spam email warning

A member has reported receiving an email purporting to be from the Diane Pattenden at the ACL entitled ‘Open invoice’ and expressly saying that it is not spam. In fact, it is. Members are reminded that all actual ACL emails will contain the ACL footer, including the logo, contact details, confidentiality statement and registered address.

 

Indemnity costs awarded against party that waited two years to accept part 36 offer

A party which waited for more than two years to accept a part 36 offer must pay indemnity costs, the chief Insolvency and Companies Court judge has ruled.

Judge Briggs found that Keith Oliver only decided to settle the case because of disclosure applications from the petitioner in an unfair prejudice petition uncovered information that undermined his position.

In Rees v Oliver and Ors [2019] EWHC 922 (Ch), the petitioner made the part 36 offer in December 2016 and it expired on 10 January 2017. The respondents accepted the offer in late February 2019, two weeks before a seven-day trial.

It was not disputed that Mr Oliver should pay the petitioner's costs for the proceedings, together with the pre-action costs, but the petitioner applied for them to be paid on the indemnity basis.

As well as the delay in accepting the offer, other factors Judge Briggs took into account was that Mr Rees funded the petition on a conditional fee basis, which Mr Oliver knew. Accepting the offer so close to trial was the equivalent of “walking away from the action”.

The judge said there was no evidence from Mr Oliver as to why it took him so long to accept the offer, but he found “a strong connection” between the late acceptance and three disclosure applications, followed by an application to amend the petition as a result of the disclosure, and the trial.

“The disclosure applications were, I infer from the timing, of great importance to the decision to accept the part 36 offer,” he said.

Judge Briggs concluded that Mr Oliver conducted his defence and acted in the proceedings “with a significant level of unreasonableness or otherwise inappropriate conduct that take this matter out of the norm”.

He continued: “The decision to walk away from the litigation and accept the part 36 offer two years after the offer had been made is more likely than not to have been linked to the late disclosure applications which undermined Oliver’s position in certain material respects damaging his credibility. I shall award indemnity costs.”

Ms C Staynings (instructed by Harrison Clark Rickerbys) appeared on behalf of the petitioner, Mr J Richmond on behalf of the Respondents

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