3+9=Costs (April 2022 Edition)

Welcome to the 5^th Edition of 39 Essex Chambers' Costs Newsletter.  The socio-political climate in the world has dramatically changed in the last few months beyond the comprehension of most.  The crimes committed to the Ukranian people (and so too the Russian people) will scar humanity for generations to come.  Much like the impact of Covid, we have to poke the fires of normality in our contribution to ensure that democracy and the rule of law triumphs above all.

So, on we go.  We have several successes in the 39 Costs Team to celebrate.  First, we are delighted to announce that Simon Browne QC has joined Chambers reinforcing our expertise at senior-silk level.  Second, Vikram Sachdeva QC has been appointed as a Deputy High Court Judge.  And third, Judith Ayling QC, Nicola Greaney and myself have joined the editorial team of the White Book's Costs and Litigation Funding supplement, which is already co-edited by Peter Hurst.

Moving on to developments in law and practice, there is always plenty to report.  Summary Assessments do not normally feature in our Newsletter, but there are two judgments worthy of mention.

First, HHJ Paul Matthews, sitting as a High Court Judge in Crypto Open Patent Alliance v Wright [2022] EWHC 242 (Ch) recently said that costs decisions were supposed to reflect the broad justice of the case…They are therefore intended to be "merely the tail to the dog, and not the dog itself"…The concept of summary assessment was an example of this. Despite the benefits of the process, parties "persist in arguing minor costs assessment issues, seeking to claw back this or that fraction of costs or small expenditure. This is not cost effective. It is merely disruptive. The costs of the argument must often outweigh even the value of what is in issue".

Second, the Court of Appeal in Samsung Electronics Company Limited & Ors v LG Display Company Limited & Anor (Costs) [2022] EWCA Civ 466, considered that a departure from GHRs even in a competition claim, required "clear and compelling justification".  Generic submissions that the case was a commercial case or a competition case or that it had an international element were not enough unless there was something of substance to each of those factors, noting also that the top GHRs were in any event reserved for "very heavy commercial work".

In a sentence then, don't be a dog at summary assessment, but if you start barking, make sure there is some substance to it!

We headline this edition with a round-up about costs in large loss claims, touching on budgets and interim payments on account of costs, reinforcing GHRs and QOCS and set-off, before turning to Part 36.  We follow up with an article on disclosure of ATE premium in the Competition Appeal Tribunal in the case of Coll, in the context of an application for a collective proceedings order which also sought disclosure of success fees.  We move back to the Court of Appeal for a judgment in McKeown on the approach to a global Calderbank offer in a split trial, as distinct from the approach to Part 36 offers, dealing with a claim for unfair prejudice under the Companies Act 2006.  We then take you to a case summary of Hankin, where the Court had to consider when counsel's brief fee fell due before assessing the fee itself and going on to identify a number of relevant considerations.  Finally, we close off this edition with a worthy chequered flag in a detailed review of the operation of a solicitor's equitable lien as it came very recently before the Supreme Court in the case of Bott & Co., only for the second time, and even then within 3 years of the last judgment.

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