Page 7 - PIC Magazine Spring Issue 15
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Court awards Claimant additional 10% where it beat its offer by just under £7,000.00
Part 36 was given back some bite in the appeal
of JLE v Warrington & Halton Hospitals NHS Trust Foundation Trust [2019] EWHC 1582 (QB). Mr Justice Stewart stated that the 10% payment (a benefit under Part 36) “should not be characterised as a ‘bonus’ [...] it is not meant to be compensatory.”
The 10% figure was £42,108.92 so wasn’t an insignificant sum. Arguments about the level of percentage also look to be over with the CPRC confirming the 10% payment is ‘all or nothing’.
Court of Appeal finally gives guidance on the test of proportionality (and ATE Premiums are exempt)
The summer would not be complete without a blockbuster and West v Stockport NHS Foundation Trust [2019] EWCA Civ 1220 was just that. The Court of Appeal set out how the proportionality test should be applied (previous editions of our magazine looked at this in detail) and also made clear that post-LASPO ATE Premiums would be exempt from the test of proportionality. The only way to challenge a premium would be to challenge its reasonableness which would require expert evidence. A case with far-reaching consequences but not without its critics. Will its legacy see proportionality applied consistently or just lead to more confusion?
Just because your costs are bigger doesn’t mean they are disproportionate
In Monex Europe Ltd v Pothecary & Anor [2019] EWHC 2204 (QB) Clive Sheldon QC reinforced the principle of the inappropriateness of the Court comparing two sets of costs and saying that one parties’ costs “were disproportionate because they were greater”. The Court stated that “it [was] necessary to look at the specific items for which costs [were] claimed.” It isn’t the first time this point has been made but it’s a good reminder that a side by side comparison of costs is too simplistic.
Interim Payments & Costs Budgets
Interim payments are important so having authorities and guidance on how the same can
be maximised is extremely beneficial. In Orexim Trading Ltd v Mahavir Port And Terminal Private Ltd (Costs) [2019] EWHC 2338 (Comm), with reference to the Receiving Party’s approved Costs Budget, the Court ordered a payment on account of 85% of the approved Costs Budget figure.
Get the budget right, amend where appropriate and you’ve a good chance of getting a strong interim payment.
Court has jurisdiction to order a payment on account after acceptance of a Part 36 offer
It’s one thing getting a good payment on account but what about just getting one at all? In 2019 the Court of Appeal finally confirmed in Global Assets Advisory Services Ltd & Anor v Grandlane Developments Ltd & Ors [2019] EWCA Civ 1764 that the Court can make an order for an interim payment following the acceptance of a Part 36 offer by the Claimant within the relevant period.
Part 36 does not allow you to contract out of fixed costs
The Court of Appeal seemingly slammed the door shut on any arguments that parties are entitled to more than fixed costs where a Part 36 offer only refers to CPR r36.13.
Ho v Adelekun [2019] EWCA Civ 1988 concerned a personal injury claim which fell out of the Portal and makes clear that the usual Part 36 consequences do not lead to the contracting out of fixed costs. Multi-track allocation continues to remain the most effective way to move from fixed to standard basis costs.
Part 36 offers cannot be exclusive of interest
Part 36 was a prominent subject throughout the year and December saw judgment in the case of King v City of London Corporation [2019] EWCA Civ 2266 given. It was held that
it was not possible to make a valid Part 36 offer exclusive
of interest. This is unlikely to be the end of the story with
LJ Arnold signalling that the issue should be looked at by the CPRC – “In my opinion there are arguments in favour
of permitting Part 36 offers to be made which are exclusive of interest, at least in assessment proceedings if not in the general run of claims. If the Committee decides, however, that offers exclusive of interest should not be permitted, then I would suggest that rule 36.5 be amended to say so in terms. At the very least, PD47 paragraph 19 should be revised.”
Hammond v SIG Plc & Subsidiary Companie [2019] EWHC B7 (Costs) (11 June 2019) where submitting a claim to the Portal (even if you don’t think it is suitable) restricts you to fixed costs (so think carefully when deciding whether to place a case on the Portal);
Anglia Autoflow North America LLC v Anglia Autoflow Ltd [2019] EWHC 2432 (TCC) saw relief from sanctions given where the Claimant failed to file an N251 or give notice of funding within seven days of inception of the arrangement;
AB v Mid Cheshire Hospitals NHS Foundation Trust [2019] EWHC 1889 (QB) (16 July 2019) saw PIC succeed on defending a switch from Legal Aid to CFA (against the backdrop of a number of decisions going the other way);
PME v The Scout Association [2019] EWHC 3421 (QB) (12 December 2019) dealt with the scope of appeal from a Costs Officer after a Provisional Assessment (it was found that any appeal was limited to decisions made at the hearing).
          Spring 2020

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