3+9=Costs (November 2023 Edition)

Welcome to the 8th Edition of 3 + 9 = Costs. We start with a huge thank you to Peter Hurst for his tremendous leadership and contribution over the past decade as head of our Costs Group. Peter has decided to step down from this role and the Cost Group will now be jointly led by Vikram Sachdeva KC and myself. As a Group, we go from strength to strength as evidenced by the recent round of Directory rankings, and we remain extremely grateful for the positive feedback from clients and referees.

On to content! In this edition we have a concise summary of the Supreme Court split-decision on R (on the application of Paccar Inc and others) v Competition Appeal Tribunal and others which is likely to shape a lot of behind-the-scenes advice and drafting that we are being instructed on.

Sticking with retainers, we update you on the Court of Appeal decision in Diag v Volterra which considered the status of an unenforceable discounted CFA, in the light of arguments about severance, quantum meruit and claims for repayment of monies paid on account. If anyone thought that Lexlaw Ltd v Zuberi showed a softening of the Court’s approach to the regulatory regime on contingent retainers generally, then Court of Appeal have put that right.

The Bar’s retainers were also brought in to focus in Glaser v Atay, where the barristers had been instructed on a direct access basis and the fairness of the terms of their staged retainer in the event of an adjournment came under scrutiny by the High Court.

The costs world never being far from ingenious argument, we report on Brassington v Knights Professional Service Limited, which was a case where a law firm sued its own former employee – also a Court appointed Deputy – for the shortfall in the recovery of the firm’s fees which could not be billed or recovered from the protected party. The High Court reflected on agency principles and drew analogy to litigants in person before pointing to the need for informed consent in any event.

From retainers, we jump to damages: what is the current approach in a “mixed claim” otherwise subject to QOCS? We review the recent High Court decision in Afriyie v Commissioner of Police for the City of London and analyse the “in the round” and “exceptional features” thresholds.

Finally, we review a case in the Administrative Court which looked at the definition of “success” for the purposes of making a costs order in judicial review proceedings, in the case of R (City Portfolio Limited) v Lancaster City Council. The High Court considered, amongst other things, the causal connection between the relief sought and the out-of- litigation resolution which left the proceedings academic, save for costs.

Plenty to read. May be a couple of Halloween frights in here too!

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