REUTERS | Jorge Silva

Costs round-up February 2020 (Part 1)

Wasted costs against expert

In Thimmaya v Lancashire NHS Foundation Trust and another, a circuit judge made a third party costs order against an expert in the sum of £88,801.68 under section 51 of the Senior Courts Act 1981. The expert, who appeared for the claimant at trial, “was wholly unable to articulate the test to be applied in determining breach of duty in a clinical negligence case”. As a result, the claimant had to discontinue the case, and the defendant successfully obtained a third party costs order against him. The parties agreed, and the court accepted, that the court’s jurisdiction in such a matter is to be exercised on the same basis as a wasted costs order.

Conditional fee agreement void as condition precedent not met re after the event insurance

In Anthony v Collins, the Senior Courts Costs Office ruled that an apparent conditional fee agreement (CFA) had never come into being, as it contained a condition precedent in relation to after the event (ATE) insurance which was not satisfied. The condition precedent read:

“Our agreement is conditional upon you getting insurance cover to cover the risk that you may need to pay the legal costs of the other side, and we must approve the terms of the cover.”

As no insurance was ever taken out, there was no valid CFA, and no other valid retainer, and so the successful claimant here could not recover costs from the unsuccessful defendant.


A poor and unfair decision. Had the retainer been an hourly rate win or lose one, then any court would have found that by the solicitor continuing to deliver services and the client accepting them, there had been a waiver, or mutual variation, concerning the lack of ATE cover. Why is it any different with a CFA?

No protective costs order in private claim: another Court of Appeal disgrace 

In Swift v Carpenter, the Court of Appeal considered the issue of the scope of protective costs orders, and the exercise of the court’s discretion and the need for speed in making an application. It also considered the scope of the new CPR 52.19.

The claimant had sought a protective costs order relating to her appeal which concerned the method of assessment of accommodation costs, following a serious personal injury. It was common ground that the claimant enjoyed qualified one-way  costs shifting (QOCS) protection on the appeal, as in the proceedings at first instance. The effect of QOCS is that no order for costs made against the claimant may be enforced without the permission of the court, to the extent that the costs payable exceed the amount of damages and interest awarded. The claimant argued that QOCS did not give her adequate protection. She contended that, for all intents and purposes, it was meaningless as it still allowed her damages to be wiped out, even though there was no dispute on liability.

The Court of Appeal held that it was not appropriate to make a protective costs order in a private case. However, even if there was such a discretion, the court would not have exercised it in this case. The general purpose of a protective costs order is to allow a claimant of limited means access to the court in order to advance their case without the fear of an order for substantial costs being made against them. This fear would inhibit them from continuing with the case, as was considered in R (Corner House Research) v Secretary of State for Trade and Industry. In spite of the breadth of the court’s discretion under section 51 of Senior Courts Act 1981 and CPR 44, which the court here accepted gave it jurisdiction to make such an order, “case law establishes that, as a matter of judicial policy and practice, we should not do so in the present case.”


As I have commented on my own blog, this appears to me to be the same old right wing Court of Appeal, which I consider a serious blot now on the legal landscape.

The court has parroted its own previous decisions in various cases, defying the will of Parliament to justify yet again defying the will of Parliament. It is very obvious that, in this case, a very seriously injured person has been denied access to justice.

Aarhus Convention costs liability of interested party clarified

In R (Kent) v Teesside Magistrates’ Court and another, the claimant succeeded in arguing that a judicial review claim was an Aarhus Convention claim, and so had costs protection under CPR 45 Section VII. This was despite an earlier direction that it was not an Aarhus claim; the defendant initially stated that in its acknowledgment of service.

Concerning liability for the costs of that hearing, the interested party argued that the reference to “the defendant” in CPR 45.45(3)(b) meant that, in the event the court held that it is an Aarhus Convention claim, the starting point was that the costs should be paid by the defendant. This was partly because there is no reference in CPR 45 to the interested party.

The court disagreed and relied on the judgment of Coulson LJ in the Court of Appeal in R (Campaign for the Protection of the Rural Environment Kent Branch) v Secretary of State for Communities and Local Government, which decided that the reference only to a defendant in CPR 45 Section VII was not material. The fact that the Campaign to Protect Rural England case concerned the opposite scenario, of the claimant being liable for the interested party’s costs, was not relevant.

Fundamental dishonesty: £83,000 damages thrown away

In Grant v Newport City Council (Cardiff County Court) (18 December 2019), the county court found that the claimant had been fundamentally dishonest within the meaning of section 57 of the Criminal Justice and Courts Act 2015 and thus dismissed her claim. There was no doubt that the claimant had suffered a serious injury, but surveillance evidence showed that she had exaggerated her symptoms to a significant extent.

The judge found for the claimant on liability and held that, had an honest claim been presented, she would have been awarded £83,000 in damages. However, because of the dishonesty, the entire claim was dismissed, as required by section 57.

“104. Having accepted that the claimant suffered real and significant injuries in this accident, I find that had she honestly presented her claim she would have been entitled to damages, and I will set out later what those would have been. However, she chose not to honestly present her claim. She pursued her claim, contending that she was significantly disabled, as set out in the medical evidence, which she voluntarily provided to the court. The fact that she loses her entitlement to honest damages is a consequence of this section: it is a consequence of her dishonesty.

105. Whilst this is a draconian step, it was made clear in the case of Sinfield that the creators of this section intended to use it to act as a deterrent to dishonest claimants who wanted to dishonestly exaggerate their claim. It is as a result of the claimant’s dishonesty that she loses her honest damages. There has been no suggestion to me that there would be any injustice in itself for section 57 not to be applied. In all of the circumstances, I dismiss the claimant’s claim in its entirety, recognising that she loses, not only the dishonestly sought damages, but her honestly sought damages too.”

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