REUTERS |
February 28, 2020

Indemnity costs: Conduct based applications for indemnity costs

Practitioners will be aware that an award of indemnity costs can provide the following advantages to the receiving party:

  • The principle of proportionality is disapplied. Perhaps of greater significance in the era of costs budgeting where prima facie the budget will be disapplied by an award of indemnity costs: see Denton v TH White Ltd; Kellie v Wheatley & Lloyd Architects Ltd and the recent application of the principle by the Court of Appeal in Lejonvarn v Burgess.
  • The paying party must establish that the costs were not reasonably incurred; in other words, the receiving party benefits from a presumption of reasonableness.
  • The award of indemnity basis costs routinely serves to mark the court’s disapproval. Thus, it may have the practical effect of strengthening the receiving party’s hand in negotiations to agree costs prior to assessment.

This blog will consider conduct based applications for indemnity costs. A previous blog considered the position in relation to indemnity awards where the costs are payable under a contract. Continue reading →

REUTERS |
February 27, 2020

Indemnity costs: Costs payable under a contract

Practitioners will be aware that an award of indemnity costs can provide the following advantages to the receiving party:

  • The principle of proportionality is disapplied. Perhaps of greater significance in the era of costs budgeting where prima facie the budget will be disapplied by an award of indemnity costs: see Denton v TH White Ltd; Kellie v Wheatley & Lloyd Architects Ltd and the recent application of the principle by the Court of Appeal in Lejonvarn v Burgess.
  • The paying party must establish that the costs were not reasonably incurred; in other words, the receiving party benefits from a presumption of reasonableness.
  • The award of indemnity basis costs routinely serves to mark the court’s disapproval. Thus, it may have the practical effect of strengthening the receiving party’s hand in negotiations to agree costs prior to assessment.

This blog will consider the position in relation to indemnity awards where the costs are payable under a contract. A second blog will consider conduct based applications for indemnity costs. Continue reading →

REUTERS | Regis Duvignau
February 26, 2020

Once privileged, always privileged… unless and until waived

“I take it that, as a general rule, one may say once privileged always privileged.” This principle, articulated by Sir Nathaniel Lindley MR in the 1898 decision in the case of Calcraft v Guest, is a fundamental aspect of privilege. It is based upon the principle that a client must be free to consult their lawyer in confidence without fear of disclosure. Its importance was explained by Lord Taylor of Gosforth CJ in R v Derby Magistrates’ Court ex p B: Continue reading →