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Costs Notes

BPTC Law Notes > BPTC Civil Ligitation Notes

This is an extract of our Costs document, which we sell as part of our BPTC Civil Ligitation Notes collection written by the top tier of City Law School students.

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COSTS

44.1, Interpretation and application
-(1) In parts 44-47, unless context otherwise requires:
o "authorised court officer" means any officer of:
-(i) the County Court;
-(ii) a district registry;
-(iii) the Family Court;
-(iiia) the High Court; or
-(v) the Costs Office
-whom the Lord Chancellor has authorised to assess costs.
o "conditional fee agreement" = an agreement enforceable under s58 Courts &
Legal Services Act 1990

"costs" = includes:
-fees, charges, disbursement, expenses, remuneration;
-reimbursement allowed to a litigant under person under r46.5;
-and any fee/reward charged by a lay representative for acting on behalf of a party in proceedings allocated to the small claims track.
o "costs judge" = a taxing master of the Senior Courts.
o "Costs Office" = the Senior Courts Costs Office

"costs officer =
-(i) a costs judge;
-(ii) a District Judge; or
-(iii) an authorised court officer

"detailed assessment" = the procedure by which the amount of costs is decided by a costs officer in accordance with Pt 47.
o "The Director (legal aid)" = the person designated as the Director of Legal Aid
Casework pursuant to s4 LASPO 2012, or a person entitled to exercise the functions of the director

"Fixed costs" = costs the amount of which are fixed by these rules, whether or not the court has a discretion to allow some other or no amount; and includes:
-(i) the amounts which are to be allowed in respect of legal representatives' charges in the circumstances set out in Section I Pt 45;
-(ii) fixed recoverable costs calculated in accordance with r45.11;
-(iii) the additional costs allowed by r45.18;
-(iv) fixed costs determined under r45.21;
-(v) costs fixed by r45.37 and 45.38.
o "Free of charge" = has same meaning as in s194(10) 2007 Act

"fund" = includes any estate or property held for the benefit of any person or class of person and any fund to which a trustee or personal representation is entitled in that capacity

"HMRC" = HM Revenue & Customs

"legal aid" = civil legal services made available under arrangements made for the purposes of Part 1 LASPO 2012 "paying party" = a party liable to pay costs
"the prescribed charity" =
"pro bono representation" = legal representation provided free of charge
"receiving party" = a party entitled to be paid costs
"summary assessment"= the procedure whereby costs are assessed by the judge who has heard the case or application

"VAT" = Value Added Tax

"the 2007 Act" = the Legal Services Act 2007.
o "Legal Representation" = has the meaning given in r2.3.
(2) The costs to which Parts 44-47 apply include:
o (a) the following costs where those costs may be assessed by the court:
-(i) costs of proceedings before an arbitrator or umpire;
-(ii) costs of proceedings before a tribunal or other statutory body;
and
-(iii) costs payable by a client to their legal representation; and

(b) Costs which are payable by one party to another party under the terms of a contract, where the court makes an order for an assessment of those costs.
(3) Where advocacy or litigation services are provided to a client under a conditional fee agreement ? costs ARE recoverable under Parts 44-47,
notwithstanding that the client is liable to pay the legal rep's fees and expenses only to the extent that sums are recovered in respect of those proceedings, whether by way of costs or otherwise.
o

o

o?

44.2, Court's discretion as to costs
-(1) the court has discretion as to:
o (a) whether costs are payable by one party to another;
o (b) the amount of those costs; and

(c) when they are to be paid
-(2) if the court decides to make a costs order:
o (a) the general rule = the unsuccessful party will be ordered to pay costs of the successful party; BUT
o (b) the court may make a different order.
-(3) The general rule (costs follow results) does NOT apply to the following proceedings:
o (a) in the Court of Appeal on an application or appeal made in connection with proceedings in the Family Division;
o (b) proceedings in the Court of Appeal from a judgment, direction, decision or order given or made in probate proceedings or family proceedings.
-(4) if deciding what (if any) costs order to make, court WILL have regard to all circumstances, including:
o (a) the conduct of all parties (see below);
o (b) whether a party has succeeded on part of its case (even if not wholly successful) ??

o (c) any admissible offer to settle made by a party which is drawn to the court's attention, and which is not an offer to which costs consequences under Part 36 [offers to settle] apply.
(5) the conduct of the parties includes:
o (a) conduct before, as well as during, the proceedings; particularly whether parties followed the PD-Pre-Action Conduct or any relevant pre-action protocol;
o (b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
o (c) the manner in which a party has pursued or defended its case or a particular allegation or issue;
o (d) whether a C who has succeed in the claim, in whole or in part,
exaggerated its claim
(6) the orders which court may make under this rule include an order that a party must pay [commentary: all these depart from the general rule, so reduce the costs that the successful party would otherwise recover were the general rule applied]:
o (a) a proportion of another party's costs;
o (b) a stated amount in respect of another party's costs;
o (c) costs from or until a certain date only;
o (d) costs incurred before proceedings have begun;
o (e) costs relating to particular steps taken in the proceedings;
o (f) costs relating only to a distinct part of the proceedings [issue-based orders, see commentary];
-(7) Before making such an order under (f): court will first consider whether it is practicable to make an offer under (a) [proportion] or
(c) [from/until a certain date] instead.
o (g) interest on costs from or until a certain date, including a date before judgment.
(8) where court orders a party to pay costs subject to detailed assessment : it WILL
order that party to pay a reasonable sum ON ACCOUNT of costs, unless there is good reason not to do so.

PD 44, para 4, Court's discretion as to costs (rule 44.2). INTERIM COSTS ORDERS
-4.1: the court may make an order about costs at any stage in a case.
-4.2, certain costs the court will commonly make in proceedings before trial: the following table sets out the general effect of these orders (table is not exhaustive re what orders court may make).
-In these interim costs orders:
o Court will consider same factors/commentary re all costs below.
o The order of how good an order is for the party is:
-(1) Costs in any event
-(2) Claimant/Defendant costs in the case
-(3) Costs in the case
-(4) No order for costs
Term
Costs

Effect
The party in whose favour the order Costs in any event

Costs in the case
Costs in the application

Costs reserved

Claimant's/Defendant's costs in case/application

is made is entitled to that party's costs in respect of the part of the proceedings to which the order relates,
whatever other costs orders are made in the proceedings.
Where appropriate: where one party has been bad/at fault, so it is justified that the successful party is entitled to their costs whatever happens.
The party in whose favour the court makes an order for costs at the end of the proceedings is entitled to that party's costs of the part of the proceedings to which the order relates.
[[where appropriate: is the most neutral order, most likely order where neither party is at fault, for procedural-type applications where there is no successful party as such; where a hearing is ineffective for some nonculpable cause, eg a civil jury failing to agree or papers being left in the post]]
The decision about costs is deferred to a later occasion, but if no later order is made the costs will be costs in the case.
If the party in whose favour the costs order is made is awarded costs at the end of the proceedings, that party is entitled to that party's costs of the part of the proceedings to which the order relates.
If any other party is awarded costs at the end of the proceedings, the party in whose favour the final costs order is made is not liable to pay the costs of any other party in respect of the part of the proceedings to which the order relates.

No order as to costs
Each party to pay own costs.

[[So the difference from this and
'costs in the case', is that ? you get these costs if you win; but you don't have to pay them if you lose. i.e. if the party who receives this order is awarded costs at the end of the case,
they recover these costs; but if they are not awarded costs at end of trial,
both parties pay their own costs re this application]]
Each party is to bear that party's own costs of the part of the proceedings to which the order relates whatever costs order the court makes at the end of the proceedings.
[[Most likely where: parties have wasted court's time; no justification for Costs thrown away

Costs of and caused by

Costs here and below

either party to recover its costs, neither party more at fault than the other]]
Where, for example, a judgment or order is set aside, the party in whose favour the costs order is made is entitled to the costs which have been incurred as a consequence. This includes the costs of
---preparing for and attending any hearing at which the judgment or order which has been set aside was made; preparing for and attending any hearing to set aside the judgment or order in question;
preparing for and attending any hearing at which the court orders the proceedings or the part in question to be adjourned;
any steps taken to enforce a judgment or order which has subsequently been set aside.
Where, for example, the court makes this order on an application to amend a statement of case, the party in whose favour the costs order is made is entitled to the costs of preparing for and attending the application and the costs of any consequential amendment to his own statement of case.
The party in whose favour the costs order is made is entitled not only to that party's costs in respect of the proceedings in which the court makes the order but also to that party's costs of the proceedings in any lower court. In the case of an appeal from a Divisional Court the party is not entitled to any costs incurred in any court below the Divisional
Court.

PD44, Para 5, Fees of Counsel

5.1 -(1) When making an order for costs, the court may state an opinion as to whether or not the hearing was fit for the attendance of one or more counsel;
o AND, if it does so, the court conducting a detailed assessment of those costs will have regard to the opinion stated.
-(2) The court will generally express an opinion, only where:
o (a) the paying party asks it to do so;
o (b) more than one counsel appeared for the party; OR
o (c) the court wishes to record its opinion that the case was not fit for the attendance of counsel.

5.2 ?(1) where the court refers any matter to the conveyancing counsel of the court ?
the fees payable to counsel in respect of the work done or to be done will be assessed by the court in accordance with r44.2
(2) an appeal from a decision of the court re fees of such counsel -? will be dealt with under the general rules as to appeals in Pt 52. If the appeal is against the decision of an authorised court officer, will be dealt with in accordance with r47.2224.

CPR 44.3, Basis of assessment
-(1) where court is to assess the amount of costs (whether by summary or detailed assessment), it will assess those costs:
o (a) on the standard basis; OR
o (b) on the indemnity basis

BUT the court will not in either case allow costs which have been unreasonably incurred or are unreasonable in amount.
o [i.e. ALL costs must be reasonable]
-(Rule 44.5 sets out how the court decides the amount of costs payable under a contract).
-(2) where the amount of cost is to be assessed on the STANDARD basis, the court will:
o (a) only allow costs which are PROPORTIONATE to the matters in issue.
Disproportionate costs may be disallowed or red

uced, even if they were reasonably or necessarily incurred; and

(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.
o (Factors which court may take into account are in rule 44.4)
-(3) where the amount of cost is to be assessed on the INDEMNITY basis, the court will resolve any doubt it may have re whether costs were reasonably incurred or were reasonable in amount in favour of the receiving party.
o [[ indemnity basis, costs don't have to be proportionate as for standard basis]]
-(4) Where:
o (a) the court makes an order about costs without indicating the basis on which the costs are to be assessed; or

(b) the court makes an order for costs to be assessed on a basis other than the standard or indemnity basis,
o -? the costs will be assessed on the standard basis.
-(5) costs incurred are proportionate [[applies to standard basis]] IF they bear a reasonable relationship to:
o (a) the sums in issue in the proceedings;
o (b) the value of any non-monetary relief in issue in the proceedings

(c) the complexity of the litigation;
o (d) any additional work generated by the conduct of the paying party; and ?o (e) any wider factors involved in the proceedings, such as reputation or public importance.
(6) where the amount of a solicitor's remuneration in respect of non-contentious business is regulated by any general orders made under the Solicitors Act 1974, the amount of the costs to be allowed in respect of any such business which falls to be assessed by the court will be decided in accordance with those general orders rather than under this rule and rule 44.4.
(7) Paragraphs 2(a) and (5) [[re standard basis costs being proportionate]] do NOT
apply in relation to;
o (a) costs commenced before 1st April 2013; or

(b) costs incurred in respect of work done before 1st April 2013

AND in relation to such cases or costs, rule 44.4(2)(a) as it was in force immediately before 1st April 2013 will apply instead.

Pd44, para 6 (re basis of assessment, r44.3)
-6.1, Costs on the indemnity basis

If costs are awarded on the indemnity basis ? the court assessing costs will disallow any costs:
-(a) which it finds to have been unreasonably incurred; OR
-(b) which it considers to be unreasonable in amount.
-6.2, Costs on the standard basis

If costs are awarded on the standard basis, the court assessing costs will disallow any costs:
-(a) which it finds to have been unreasonably incurred; OR
-(b) which it considers to be unreasonable in amount; OR
-(c) which it considers to have been disproportionately incurred or to be disproportionate in amount; or
-(d) about which it has doubts as to whether they were reasonably or proportionately incurred; or whether they are reasonable and proportionate in amount.

CPR 44.4, factors to be taken into account in deciding the amount of costs?(1) court WILL have regard to all the circumstances in deciding whether costs were:
o (a) If it is assessing costs on the standard basis:
-(i) proportionately and reasonably incurred; or
-(ii) proportionate and reasonable in amount.
o (b) If assessing costs on the indemnity basis:
-(i) unreasonably incurred; or
-(ii) unreasonable in amount.
(2) in particular, court will have regard to any orders which have already been made.
(3) court will also have regard to:
a) the conduct of all the parties, including particularly:
i. conduct before & during proceedings; and ii.
the efforts made (if any) before and during proceedings in order to try and resolve the dispute.

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