3 + 9 = Costs (October Edition)

Welcome to the 4^th Edition of 39 Essex Chambers’ Costs Newsletter.  As always, there is much to report but we have focussed on what we consider to be the unmissable over the past 6 months.  The new Guideline Hourly Rates have been published and “in effect” from 1 October 2021.  Here is a summary table of what they were in 2010 and what they are now in 2021:

What does “in effect” mean?  How will they apply to work done before 1 October 2021, which will surely be the question at assessments for some time yet?  Mathematical pro-rata?  Or retrospective effect?  They are still only guidelines and we are bound to continue to see different approaches in practice at detailed assessment.  The question is all the more pressing and relevant at summary assessment and so we will keep an eye out for interesting developments.

In this Edition, we grapple with an issue which crops up much less frequently, but is very important, namely the distinction between a Contentious Business Agreement and a Non-Contentious Business Agreement and the formalities relating to them.  That distinction is an important preliminary question if considering a challenge that the agreement was or was not “fair and reasonable” and therefore susceptible to being set aside.  To this end we review Acupay and Tripipatkul.

Still with retainers, we review the Court of Appeal’s judgment in Lexlaw relating to Damages Based Agreements which appears to encourage the use of DBAs and possibly also hybrid DBAs.  Technical breaches should not deny access to justice.  Is the landscape clearer now?

Moving on from retainers, we review recent cases relating to funding.

First, we review Edwards v Slater & Gordon where the Court examined the funding arrangements for costs litigation offered to clients who pursued low value claims.  Those arrangements included an indemnity for adverse costs in circumstances where ATE was not available, by contrast to other arrangements with disbursement funding commonly found in personal injury litigation.

Second, we review the circumstances in which a cross-undertaking might be required in damages by a defendant seeking security for costs, where the claimants were liable for an enhanced return on any security paid out by the litigation funder, as in Rowe v Ingenious Media Holdings.

Third, we provide a short review of Laser Trust v CFL Finance Ltd on the operation of the ‘Arkin cap’.

Finally, we round up this edition with a review of the Supreme Court judgment in Ho v Adelekun.  We analyse the Court’s judgment dealing with the defendant’s claim for set-off of an adverse costs order against the claimant’s costs and damages in a case where the claimant had QOCS protection.  More work for the Civil Procedure Rules Committee!

You can read the full newsletter here.