Kerry Underwood


leave a comment »


In Dring (on behalf of Asbestos Victims Support Groups Forum (UK)) v Cape Distribution Ltd and others [2017] EWHC 2103 (QB)

the High Court ordered that an interested party’s submissions in response to a non-party’s application for access to court documents under CPR 5.4C(2) be conditional on the interested party not seeking an order for costs against the non-party.

Dring applied on behalf of the Asbestos Victims Support Groups Forum (UK)  for the supply of certain court documents in and Cape Distribution Limited sought to make representations.

Dring argued that the Forum, made up of not for profit charities, would be deterred from pursuing the application if there was a risk that it had to pay Cape’s costs.

Dring also argued that the application was not made against Cape, but rather to the court, and therefore Cape should have no entitlement to a costs.

Cape argued that Dring was effectively seeking a Protective Costs Order, which was confined to public law proceedings and therefore not permitted in a case such as this – see Eweida v British Airways plc [2009] EWCA Civ 1025.

Here the Master held that the court had power under CPR 3.1(2)(m), and a broad discretion under Section 51 of the Senior Courts Act 1981, and under the overriding objective, to impose conditions on interested parties – see Baker v Quantum Clothing Group Ltd [2008] EWCA Civ 823.

Thus the issue was not whether or not she need make a Protective Costs Order.

In this case it was appropriate to impose a condition on Cape under CPR 3.1(2)(m) that the application should proceed on the basis that Cape would not seek a Costs Order against Dring and this would prevent injustice and the risk of due process being stifled by the risk of a Costs Order.



In Austin v East Sussex Fire and Rescue Service (unreported), 8 August 2017, (Senior Courts Costs Office)

the Senior Courts Costs Office held that although there was no specific provision in the Civil Procedure Rules, the court had jurisdiction to order an amendment of a Bill of Costs in a detailed assessment, although here the Costs Judge declined to do so.

The court held that it had power to require a party to serve an amended Bill of Costs, either to omit costs which that party could not be entitled to, or to identify the basis on which costs were claimed and this power should be exercised if, otherwise, there could not be a fair detailed assessment hearing.

The court compared the decision with its powers to strike out a statement of case under CPR 3.4 and to require a party to provide further information under CPR 18.1.

Hear the proceedings had been consolidated with other claims against different Defendants and the Defendant sought an order that the claimant redraft the bill to distinguish between specific and non-specific common costs, and to indicate the division of specific common costs.

The court held that this would be disproportionate and that the bill as drafted would not adversely affect the detailed assessment hearing, as these arguments could be raised there.

If the hearing was lengthened due to a misdescription in the Bill of Costs, or a failure to divide specific common costs, then the court could make a Costs Order in the detailed assessment proceedings to reflect that fact.

The court also gave a reminder as to the guidance concerning the two categories of common costs.

Non-specific common costs are costs which would have been incurred anyway, whereas specific costs are those which are, in principle, capable of identification and division.

Detailed guidance is contained in Haynes v Department for Business, Innovation and Skills [2014] EWHC 643 (QB).

This case also looked at the law relating to commencement of detailed assessments and this is dealt with in my post COSTS BUDGETING AND ASSESSMENT: RECENT CASES.

I am grateful to Temple Garden Chambers for making this judgment available.



In Topping v Ralph Trustees Ltd [2017] EWHC 1954 (QB) (19 July 2017)

a High Court Judge set aside an order of another High Court Judge in relation to the correct route of appeal from a District Judge conducting Circuit Judge work.

The first judge had held that the appeal was to a Circuit Judge in the County Court, as is normal for an appeal against a District Judge’s decision.

That decision has been overturned with the court holding that when a District Judge is conducting Circuit Judge work, then appeal is direct to the High Court, as it would have been had it been a Circuit Judge hearing the case.

Here, due to the unavailability of a Circuit Judge, the designated civil charge released the case to be heard in Milton Keynes County Court by a District Judge.

The Claimant, successfully arguing that the correct route of appeal was directed to the High Court, relied in part of Practice Direction 2B.16, which provides that the appeal against any decision by a District Judge in proceedings which should have been allocated to a Circuit Judge, will be determined as if that decision had been made by a Circuit Judge.

Table 1 of Practice Direction 52A.3.4 provides that County Court decisions by a Circuit Judge should be appealed to the High Court and the definition of a Circuit Judge includes a District Judge exercising the jurisdiction of a Circuit Judge with the permission of the designated Civil Judge, which was exactly the position here.

The second judge found that that point was “manifestly correct”.

A case heard at Circuit Judge level goes direct to the High Court in the event of an appeal.

Communicating with the Court

In the same case the High Court Judge criticized the Defendant’s solicitor for corresponding with the court without copying in the Claimant’s solicitors.

The judge restated what he described as the “elementary rule” as set out in

Mohamed v Secretary of State for Foreign Commonwealth Affairs (No 2) [2010] EWCA Civ 158

that none of the parties to civil litigation may communicate with the court without simultaneously alerting the other parties to that fact.

The appeal regime changed on 3 October 2016, and from that date appeals from the Circuit Judges in the County Courts ceased to lie to the Court of Appeal and instead now have to be brought in the High Court.

The judge said:

“It is improper to communicate privately with the court, without informing the other side. It is a denial of open justice too often overlooked by courts and tribunals as well as parties. It ignores elementary fairness as well as professional curtesy.”

Here, the Defendant’s solicitors, Kennedys had not only written to the court without copying in the Claimant’s solicitors, but had failed to draw the court’s attention to the provisions of Practice Direction 52A, even though they were under a duty, as officers of the court, to refer the court to all relevant provisions.

Here, the court said that had Kennedys’ letter, which failed to draw the court’s attention to relevant legal provisions, been copied to the Claimant’s solicitors, then it is likely that those solicitors would have drawn the court’s attention to the relevant provision, in the way that Kennedys failed so to do.


In Thakkar v Patel [2017] EWCA Civ 117

the Court of Appeal ordered that silence in the face of an invitation to participate in alternative dispute resolution is generally unreasonable:

“In my judgment, the time has now come for this court firmly to endorse the advice given in para 11.56 of the ADR Handbook, that silence in the face of an invitation to participate in ADR is, as a general rule, of itself unreasonable, regardless whether an outright refusal, or a refusal to engage in the type of ADR requested, or to do so at the time requested, might have been justified by the identification of reasonable grounds.”

“The message which this court sent out in PGF II [PGF II SA V OMFSA Company Limited [2014] 1WLR 1386] was that to remain silent in the face of an offer to mediate is, absent exceptional circumstances, unreasonable conduct meriting a costs sanction, even in cases where mediation is unlikely to succeed. The message which the court sends out in this case is that in a case where bilateral negotiations fail but mediation is obviously appropriate, it behoves both parties to get on with it. If one party frustrates the process by delaying and dragging its feet for no good reason, that will merit a costs sanction. In the present case, the costs sanction was severe, but not so severe that this court should intervene.”


Written by kerryunderwood

August 18, 2017 at 10:44 am

Posted in Uncategorized

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: