3+9=Costs (November 2024 Edition)

Welcome to the 10th Edition of 3 + 9 = Costs. 

Since the last edition, our team has been out and about, speaking and attending at the Costs Law Reports Conference, the Association of Costs Lawyers Annual Conference, and various in-house attendances not to mention regular appearances in Court! One Court appearance of significance was the Senior Costs Judge’s valedictory in Court 58. It was presided over by Birss LJ, attended by many other members of the judiciary and filled with barristers, solicitors, costs lawyers and close family members of Andrew Gordon-Saker. A full-bottom wig from the LJ with robes regaled in real gold, wigs and robes from the Bar, judicial gowns from the judiciary, and the odd cry from the Senior Costs Judge’s grandson, made for a splendid occasion. Fitting tributes were paid by Simon Browne KC and Claire Green (past Chair of the ACL). The members of 39 Essex Chambers wish Andrew Gordon-Saker a wonderful retirement.

On to business. We start in the King’s Bench Division and provide you with an update on recent experiences in costs budgeting hearings from two decisions of Master Thornett in Worcester v Hopley and Jenkins v Thurrock. There are some clear warnings sounded about adverse costs orders to be made at costs budgeting hearings where parties adopt unrealistic positions.

Staying with the KBD corridor, we review the nearly new guidance note for Costs Management Hearings, which ends with the same warning again about potential adverse costs. You may think a theme is emerging?

Once parties are through case management, and have made it to trial, we take you through a menu of consequential costs issues at trial: incidence, basis, pre- and post-judgment interest and interim payments on account of costs are all servings.

From case management in the KBD, we move to detailed assessment and the Supreme Court no less. Oakwood Solicitors Ltd v Menzies has shone a light on what is a “payment” for the purposes of the Solicitors Act 1974. It brings with it clarification that clients must be informed of fees due before monies are transferred from client account to office account, and transferred only if there is consent to do so, if such transfers are to qualify as a ‘payment’.

Next, we review Signature Litigation LLP v Ivanishvili in the Court of Appeal. Again, the Court examined the qualifying nature of a statute bill, particularly in relation to interim bills in CFA cases which should not be assumed to be interim statute bills. The case highlights the importance of informed consent, and the protection afforded to clients for the assessment of bills, with time running only from when the bill is truly final.

To round up, we review the trend of Budgets and Guideline Hourly Rates becoming a feature in solicitor-client assessments. The approach in EVX v Julie Smith [2022] together with the approach in Rhett St. James v Wilkin Chapman LLP [2024] serve as timely reminders of what is to be understood from the presumptions in CPR r.46.9(3), the distinction between consent and informed consent and what is meant by unusual leading to unreasonable.

Plenty of stuffing for your festive season! See you very soon.

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