Practical Law

CPR 36 is the most important, and complicated, rule in the book, and so it is not surprising that there is a torrent of cases with major issues still unresolved. Here I look at no fewer than nine recent decisions at High Court level or above.

In Saeed and another v Ibrahim and others, the Chancery Division of the High Court considered the overlap between the court’s powers to strike out under CPR 3.4 and its powers to enter summary judgment under CPR 24.

Indemnity costs guidance In Whaleys (Bradford) Limited v Bennett and another, the Court of Appeal gave guidance in relation to the correct test when considering indemnity costs. This was not in the context of Part 36.

In Percy v Anderson-Young, the Queen’s Bench Division of the High Court allowed recovery of an after the event (ATE) insurance premium of £533,017.13, overturning the district judge’s decision to cut it to £82,513.07.

In Richard Slade and Company v Boodia and Boodia [2017] EWHC 2699 (QB) the Queen’s Bench Division of the High Court, in an appeal  from the Senior Courts Costs Office, upheld the Cost Master’s finding that interim statute bills must include disbursements.

Fast track In relation to the fast track, Jackson LJ proposes no change and the only suggestion, emanating from claimant representatives, was that there should be better provision for the costs of pre-action disclosure applications as recommended by the Court of Appeal in Sharp v Leeds City Council.

This piece does not deal with the costs figures; that is for another piece. As part of his Supplemental Report on Fixed Recoverable Costs, which will be considered by the Lord Chief Justice, Master of the Rolls and the government, Jackson LJ has proposed a new intermediate track.

CPR 36 is the most important rule in the book.

Today Jackson LJ’s Supplemental Report on Fixed Recoverable Costs was published and is available here. This will now be subject to consultation by the government, and so these are proposals at this stage. Whatever comes in is likely to be on 1 October 2018.

A voluntary two year capped costs pilot scheme for High Court cases valued between £100,000 and £250,000 is due to begin imminently in the London Mercantile Court and the Mercantile, Technology and Construction and Chancery Courts in Manchester and Leeds District Registries.

The Master of the Rolls, giving the Lord Slynn Memorial Lecture on 14 June 2017, had this to say about the effect of electronic filing and online courts:

It is accepted by solicitors and the Bar alike that, as fixed fees are introduced, solicitors become more reluctant to instruct counsel, on the basis that they feel that they are spending their own money, rather than incurring a disbursement, which is then recoverable from the other side in the event of success.

The general election has caused the Prisons and Courts Bill to be lost, as there was insufficient time for it to get through all of its Parliamentary stages before the dissolution of Parliament at midnight on 2 May.

Practitioners will be familiar with the basic concept of Part 36 and the consequences that flow from that rule.

The horizontal and vertical extension of fixed recoverable costs is being considered by Jackson LJ, whose report is due by 31 July 2017.