Welcome to the 3rd Edition of 39 Essex Chambers’ Costs Newsletter. Never a dull moment in the world of costs making it difficult to filter the best topics from all the others to ensure this read is worthy of you precious time. But we’ve done it! And whilst we are congratulating ourselves, let us share the fantastic news that our costs team now boasts another Silk in Judith Ayling QC. Many congratulations to her! Whilst in focus, Judith reports on a case in which she acted as junior counsel in the Court of Appeal (January 2021) and Competition Appeal Tribunal which determined that percentage-based litigation funding agreements are not DBAs where the funders do not have control over the conduct of litigation.
Simon Edwards writes two articles in this edition: the first deals with a case which considered the Chorley principle as it applies (or not) to a litigant in person in the Court of Protection where the usual litigant in person costs provisions are disapplied; the second sticks with the Court of Protection theme and reviews the need for a Deputy to have obtained authorisation before undertaking or commissioning legal services, setting out other mandatory requirements and considerations not to be missed.
David Brynmor-Thomas QC and Shaman Kapoor put the risk of arbitrators meeting costs themselves under the lens in the face of statutory immunity, following on from the important and fascinating case of Halliburton in which the Supreme Court dealt with the issues of apparent bias and a challenge to remove an arbitrator.
If you thought that applications for amendments to pleadings were fairly clear cut in terms of the consequences and scope of costs, Karen Gough sets out salutary warnings against making such assumptions and revisits those wonderful words: “of and occasioned by”. Beware!
Can we get an edition in without mentioning Part 36? It seems not! Caroline Allen offers analysis of the Court of Appeal judgment in Telefonica, which restored all the punitive elements of Part 36 and explores the “unless unjust to do so” provision. No room for proportionality in Part 36 when deciding whether to dish out the various penalties – thank you very much!
A tale of two tells Peter Hurst in a concise summary of cases dealing with Part 36, indemnity costs applications and a consideration of which day was the day when the offer was “made”, where the timing of the accompanying email was 4:54pm.
To see you on your way, we close with the subject of applications for relief from sanctions. Daniel Laking warns us of the perils of failing to take seriously enough such an application in a Default Costs Certificate context.
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