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LPC Law Notes Civil Litigation Notes

Costs And Enforcement Notes

Updated Costs And Enforcement Notes

Civil Litigation Notes

Civil Litigation

Approximately 418 pages

A collection of the best LPC Civil Litigation notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LPC samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor".

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Outcome 1: Provide Advice on Payment and Recovery of Costs

General

P.232

  • By r 44.1 “Costs” includes fees, charges, disbursements, expenses, remuneration, legal fees, pre-action costs (r.43.2(1)), any CFA fee or AEI premium (r.44.3(6)(d))

  • Generally, loser pays winner’s costs (r.44.2(2)(a)).

  • In fast-track-trial Judge will make the cost order and asses the amount payable.

  • In multi-track-trial the judge will only determine who pays the costs. A separate “costs judge” will determine the amount (failing the agreement of the parties) at a later hearing

  • Note the Indemnity Principle: the winner cannot make a profit

  • r.44.3(1): the court has a discretion as to:

    • Who is to pay costs

    • How much costs are

    • When they are to be paid

  • It’s important to manage client’s expectations: they will not get 100% back (70% if on a CFA)

  • Court considers conduct of the parties when deciding costs Mars UK Ltd v Teknowledge

Interest

P.231

  • Generally, interest is not payable on costs before judgment (r.36.14(3))

  • However, it can be at the court’s discretion (r.44.3(6)(g)) and (SCA 1981, s35A or CCA 1984, s69)
Standard Basis. P.233

  • The costs must be proportionately and reasonably incurred and reasonable in amount

  • Where there is doubt, give the benefit of the doubt to the paying party

Indemnity Basis

P.234

  • This is made to punish the paying party for poor conduct during proceedings

  • The costs must be reasonably incurred and reasonably in amount

  • Where there is doubt, give the benefit of the doubt to the receiving party

Procedure

For assessing costs

P.236
Fast Track P.236 Multi Track P.237

  1. Normally, the judge will make a summary assessment (SA) as to costs at the end

  2. Parties should file a breakdown of their costs at least 48 hours before the hearing (Submit Costs Form N260 (P.297))

  3. It should also include the amount of the CFA success fee / AEI premium

  4. There are specified costs for advocates for preparing for and appearing at the trial on the fast track (r.46)

  1. Note that it is always open to the parties to agree on costs themselves

  2. Normally, the judge will order a detailed assessment by a costs judge but SA is also possible

  3. The receiving party submits Form N252 (P.307) on the paying party and a copy of the bill of costs prepared as per Costs PD para 4.6 within 3 months of the judgment

  4. Any dispute of costs “Points in Dispute” is made at this stage ( see Challenging Opponent’s Bill below)

  5. Consent order is then issued

  6. Pay the bill within 14 days

  7. Late service of Form N252 may mean the court will disallow all or part of the costs or interest on them

Outcome 2: Analyse Details of Costs and Challenging Opponent’s Bill of Costs (P.236 & 312)

  • Must challenge (“points in dispute”) an opponent’s bill within 21 days of service of the notice (r.47.9)

  • If not challenged the receiving party can apply for default costs certificate (order to pay costs)

  • A reply of the “points in dispute” may be served to the paying party within 21 days (r.47.13)

  • Factors that are considered:

    • Is there a substantial difference (of 20% - Costs PD para 6.5A) between the pre-estimate costs and the final bill?

    • What is the basis of assessment – standard or indemnity (if standard, consider the TEST above)

    • Is the length of time it took to do the work reasonable?

    • Are the hourly charging rates reasonable? (Appendix A(21 P.337))

    • Is the status of the fee-earner suitable? Could it have been done by a trainee?

    • Could a cheaper, local firm have been used?

    • Are all items claimable? See Costs PD 47 para 5.22:

  1. Routine emails and calls are calculated on a unit basis of 6 minutes. Cannot separately charge for incoming emails and incoming telephone calls

  2. The court may, in its discretion, allow an actual time charge for preparation of electronic communications other than e-mails sent by solicitors

  3. Local travelling expenses within a 10-mile radius cannot be claimed

  4. Office related costs - postage, couriers, telephone calls, faxes – are not chargeable unless exceptionally large.

  5. Cost of copying documents is generally not allowed unless exceptionally numerous

  6. Agency charges should form part of the overall hourly fee and not be charged separately

    • Was notice given of the CFA / AEI and when was it given?

      • Was notice given in accordance with Pre-Action Conduct PD para 9.3?

      • If not, then it is not recoverable unless relief from this has been granted (r.44.3B)

      • If yes, then consider whether it was reasonable and proportionate in amount and to incur

      • To challenge the amount of an AEI premium, expert evidence could be needed

    • While waiting for the issue of costs to be finalised, the court may order an interim payment to the winner (r.44.3(8))

    • Receiving party is usually entitled to the costs of the detailed assessment hearing unless the court decides otherwise (looking at reasonableness and conduct of the party)

Appeals See P.241

Outcome 3: Identify Appropriate Assets and Advise on Appropriate Enforcement

1. Trace the opponent

P.244

Can you trace/have you located the other party?, if not:

  • Consider an enquiry agent to trace him (provide them with as much info as possible)

  • A limit on costs for enquiry agent should be set
2. What is the Asset

Identify the asset that is owned by the paying party. Two options available (PD 71, Form N361/A))

  1. The winning party can instruct an enquiry agent to make investigations as to assets

  2. ...

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