Indemnity costs are always a hard fought battle, generally following hard won litigation. It is obvious why: the indemnity basis means a receiving party is not held to their approved budget and is therefore likely to recover significantly more than on the standard basis (Burgess v Lejonvarn, paragraphs 89 – 93).
My April 2020 blog examined the extent to which costs orders, made in favour of losing parties, could be set off or enforced against costs orders, damages and interest awarded in favour of winning parties in cases proceeding within the Qualified one-way costs shifting (QOCS) regime (Section II of CPR 44), The rationale behind QOCS, which were implemented on 1 April 2013, was to lower the burden falling on defendants if costs ceased to be recoverable from losing claimants, rather than the case where defendants continued to be responsible for success fees and after the event insurance premiums when the claimants were successful.
Costs capping orders (CCOs) are a rare beast. Their exceptionality has recently been confirmed in Thomas and others v PGI Group Ltd, in which it was accepted that since the new world for costs began on 1 April 2013, not a single such order under CPR 3.19 has been made. Continue reading
