Kerry Underwood

PROPORTIONATE COSTS ORDERS PREFERRED TO ISSUE BASED COSTS ORDERS: UPDATED: TWO NEW CASES

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The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

These principles, and the whole issue of Qualified One-Way Costs Shifting, is dealt with in my book – Qualified One-Way Costs Shifting, Section 57 and Set-Off – Available from me here for £15.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

In

Jones v Ministry of Defence [2020] EWHC 1987 (QB)

the Queen’s Bench Division of the High Court awarded a successful claimant in a clinical negligence claim only 60% of his costs on the basis that the sum recovered was much lower than the sum sought as the court had overwhelmingly preferred the evidence of the defendant’s expert to that of the claimant’s expert.

 

In the words of the judge:

 

“…this had a profound impact on my findings on causation and consequently on quantum.”

 

The significance of the decision is the court’s finding that where the general rule that the winner gets costs is departed from, then the court should make orders expressed in percentage terms, or by reference to distinct periods of time, and should not make issue based costs orders.

Such orders are allowed pursuant to CPR 44.2(6)(f) but CPR 44.2(7) provides that before considering making an issue based cost order, the court should consider whether it will be practicable to make an order for payment of a proportion of costs, which is what the court did here.

 

The court said:

 

“Orders of this nature can present an unnecessary and disproportionate burden in Detailed Assessments where many of the issues (here negligence, causation and loss) materially overlap with each other and are difficult to unpick fairly.”

 

As to orders for distinct periods of time, these are common, as that is what happens in relation to Part 36, that is one party is ordered to pay the costs up to a certain date and is then the receiving party from that date onwards.

Indeed, that happened here as the claimant failed to beat the defendant’s Part 36 offer, and thus had to pay the defendant’s costs from the expiry of the time for accepting that offer.

It was the pre-Part 36 offer costs in favour of the claimant which were reduced to 60%.

Exactly the same approach was taken in another very recent case –

Blackpool Borough Council v Volkerfitzpatrick Ltd [2020] EWHC 2128 (TCC)

the Technology and Construction Court, part of the High Court, considered the correct approach to costs where a Part 36 offer has been withdrawn and where the claimant recovers less at trial than had been on offer.

I deal with the case in a separate blog – but the relevance here was that the court ordered the claimant to pay 80% of the costs, rather than making an issue based costs order, even though it said it could have worked the costs out issue by issue –

See my blog

PART 36: WITHDRAWN OFFER STILL COUNTS: AN UNFORTUNATE DECISION

 

Written by kerryunderwood

August 5, 2020 at 3:03 pm

Posted in Uncategorized

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