costs


ALBA Conference 2019: A Review (Part 4)

2 November 2019 by

This post, and those that follow, summarise some of the main points of interest arising from the ALBA Conference 2019.

‘Practice and Procedure Update’ – Chair: Lord Justice Singh; Speakers: Catherine Dobson, Jo Clement, Christopher Knight

alba

Catherine Dobson: Costs in Public Interest Litigation

Sir Rupert Jackson’s 2009 review of costs in civil litigation found that reform was required in relation to judicial review. This was because it was “not in the public interest that potential claimants should be deterred from bringing properly arguable judicial review proceedings by the very considerable financial risks involved”. Whilst the government did not take up the proposal for qualified one-way costs shifting in judicial review, it did introduce a scheme for cost capping orders in judicial review. This change was the focus of Ms Dobson’s talk.


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Mandatory order to stop bribery investigation?

13 October 2016 by

wasR (o.t.a Soma Oil & Gas) v. Director of the Serious Fraud Office [2016] EWHC 2471 (Admin) 12 October 2016 – read judgment

Soma are investing heavily ($40m spent on seismic work) in looking at oil and gas extraction in Somalia, so it was a bit of a set-back, to say the least, when their “capacity-building” efforts – funding infrastructure in the relevant Ministry – were alleged to fall under the Bribery Act 2010, and this led to a fraud investigation by the UK SFO. The investigations, as investigations do, dragged on, and Soma brought these, somewhat ambitious, proceedings to get an order telling the SFO to stop them.

As you may have guessed, the claim failed, though, as we will see, it may have achieved rather different benefits.

The judgment of the Administrative Court is a concise account of when the private challenger can and cannot seek orders in respect of investigations and prosecutions – whether to stop or start them. Here Soma wanted to stop the investigation. In other circumstances, a victim may want the authorities to start an investigation or prosecution into another party: see, e.g. Chaudhry, decided earlier this week.

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Supreme Court: no-win-no-fee costs regime compatible with Article 6

22 July 2015 by

11769Coventry v. Lawrence [2015] UKSC 50, 22 July 2015, read judgment here

The pre-April 2013 Conditional Fee Agreement system, under which claimants could recover uplifts on their costs and their insurance premiums from defendants, has survived – just. It received a sustained challenge from defendants to the effect that such a system was in breach of their Article 6 rights to a fair trial.

In a seven-justice court there was a strongly-worded dissent of two, and two other justices found the case “awkward.”

The decision arises out of the noisy speedway case about which I posted in March 2014 – here. The speedway business ended up being ordered to pay £640,000 by way of costs after the trial. On an initial hearing (my post here), the Supreme Court was so disturbed by this that they ordered a further hearing to decide whether this was compatible with Article 6 .

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Acquitted defendants costs regime not incompatible with ECHR

28 January 2015 by

448bbd010e93bd0d21e13a354a3cd82bR (o.t.a Henderson) v. Secretary of State for Justice, Divisional Court, 27 January 2015 – judgment  here

The Court (Burnett LJ giving the sole judgment) has ruled on whether the statutory changes made to the ability of acquitted defendants in the Crown Court to recover their costs from central funds are compatible with the ECHR. 

Its answer – an emphatic yes, the new rules are compatible. This conclusion was reached in respect of the two statutory regimes applicable since October 2012, as we shall see.

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Three strikes and out? Major defeats for Government Judicial Review reform plans in the Lords

28 October 2014 by

Pannick Faulks

Lords Pannick and Faulks

Last night saw the important Report Stage consideration of Part 4 of the Criminal Justice and Courts Bill in the House of Lords. Angela Patrick, Director of Human Rights Policy at JUSTICE provides a summary.

Widely – and quickly – reported as a “crushing” or an “emphatic” defeat – in a rare turn – the Government was last night defeated in three consecutive votes on its proposals to restrict access to judicial review. With a ‘hat-trick’ of blows, on three crucial issues, votes on amendments tabled by Lords Pannick, Woolf, Carlile and Beecham were decisive. On the proposal to amend the materiality test – the Government lost by 66. On the compulsory disclosure of financial information for all judicial review applicants, and again on the costs rules applicable to interveners, the Government lost by margins on both counts by 33. A fourth amendment to the Government proposals on Protective Costs Orders – which would maintain the ability of the Court to make costs capping orders before permission is granted – was called after the dinner break, and lost.

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Asbestos victims successfully challenge change in conditional fee/ATE costs rules

8 October 2014 by


malignantmesothelioma1Whitston (Asbestos Victims Support Victims Support Groups Forum UK)  v Secretary of State for Justice and the Association of British Insurers (Interested Party) [2014] EWHC 3044 – read judgment

Jeremy Hyam and Kate Beattie of 1 Crown Office Row acted for the Claimant in this case. They had nothing to do with the writing of this post.

In April 2013 the rules permitting recovery of success fees under Conditional Fee Agreements (CFAs) and After The Event (ATE) insurance premiums changed in response to the Jackson proposals – with one exception, namely in respect of mesothelioma claims.

This case concerns the Lord Chancellor’s intention to bring costs rules in mesothelioma claims in line with other claims.

As many of you will know, mesothelioma is an industrial disease caused by the inhalation of asbestos. It is a rare form of cancer which  generally does not become apparent until many years after exposure to asbestos, a feature which at least in the past has led to real problems when mounting a claim against those responsible for the exposure. Once the cancer does become symptomatic its progression is rapid. Most sufferers survive for less than 12 months from the onset of symptoms. Yet the effects of the disease over the period from the onset of symptoms to death are hugely painful and debilitating. This combination of factors means that litigation in relation to mesothelioma is unusual in comparison with many other types of litigation involving personal injury or industrial disease. In almost every case in which a claim is made for damages for mesothelioma the effective defendant is an insurance company.
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Private nuisance – Article 6 and the costs conundrum

23 July 2014 by

400px-Ffos_Y_Fran_open_cast_mine,_Merthyr_TydfilCoventry v. Lawrence [2014] UKSC 13, 23 July 2014, read judgment and Austin v. Miller Argent [2014] EWCA Civ 1012, 21 July 2014 read judgment

Two important cases in the last few days showing how difficult it is to find a fair way to litigate private nuisance cases.  Most of these claims have a modest financial value, but may raise complex factual and expert issues, even before you get to the law. The first case I shall deal with, Coventry, shows the iniquities of the recently departed system. The second, Austin, the dangers of the new.

Coventry is the sequel to the speedway case about which I posted in March – here. The”relatively small”  local speedway business ended up being ordered to pay £640,000 by way of costs after the trial. More than half of this was no-win-no-fee uplift and insurance premium combined. Indeed, the Supreme Court was so disturbed by this that they have ordered a further hearing to decide whether such a costs bill was in breach of Article 6 of the ECHR.

Austin is a claim concerning noise and dust affecting the claimant’s house close to an open-cast mine on the edge of Merthyr Tydfil: see pic. Before I go further, I should say that I represented Mrs Austin at an earlier stage of these proceedings.

In the present hearing, she unsuccessfully sought an order limiting the costs which she might have to pay if she lost the litigation (a protective costs order or PCO).

So each case is about a costs burden, which is capable of causing injustice to one or other party.

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More than a slip ‘twixt cup and lip

25 October 2013 by

a4632048X Local Authority v Trimega Laboratories and others [2013] EWCC 6 (Fam) – read judgment

Technical evidence can sometimes be crucial to judicial decisions and this case shows how dramatic the consequences are for a family if evidence is unreliable. If the respondent in this case had not put probity before its commercial interests, a mother would have been deprived of the care of her child. Hence the importance of publishing the judgment.

The case arose out applications by the parents, a child and the child’s guardian to care proceedings for wasted costs orders against Trimega Laboratories. In short, the care proceedings had been brought for a number of reasons foremost of which was the mother’s “excessive drinking”. In March 2013 the mother said she had been abstinent from alcohol since August 2012. But in July 2013 a blood alcohol test report from Trimega suggested that she had been drinking.  Her abstinence was a crucial factor in the plan for rehabilitation of the child to her care, and had it not been for this test result a final order would have been made on 25 July 2013 and the child returned to her.
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Mousa – a costly costs quirk

3 October 2013 by

money_1945490cMousa and others, R (on the application of) v Secretary of State for Defence [2013] EWHC 2941 (Admin) – read judgment

A postscript to Rosalind English’s post of today. In the substantive judgment (see Adam Wagner’s post on the order), the Divisional Court decided two main issues, one relating to the independence of the Iraq Historic Allegations Team, and one relating to the extent to which an inquiry conducted through IHAT complied with Article 2 of the ECHR. The Secretary of State succeeded on the first issue, whereas the claimant succeeded substantially on the second issue relating to the need for a different form of inquiry. Hence there was no overall winner; the Secretary of State won on the first issue and the claimant succeeded substantially on the second issue. But more time was spent on the first issue. 

What then to do about costs? And why is that interesting – promise you, it is important.

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“Law is no trade, briefs no merchandise”

27 August 2013 by

supreem-court1In Re Rameshwar Prasad Goyal, Advocate, Supreme Court of India, 22 August 2013, read judgment

For the moment, at least, the idea of Stobart-law, supermarket-law, or call-centre-law as the solution to the increasing cost of criminal justice seems to be on hold. But this broadside from the Indian Supreme Court (including my title) helpfully reminds us that the relationship between judges, advocates and their clients fits with difficulty into the bilateral model of most of the entirely commercialised world. The advocate owes a more complex set of duties to the court as well as to his or her client than are typically found in a haulage contract.

Shri Rameshwar Prasad Goyal, Advocate-on-Record or AOR in this case, is, according to Indian court statistics, a very busy man. He was acting  in 1678 cases in 2010, 1423 cases in 2011, and 1489 cases in 2012. But he has never actually appeared in court on behalf of his clients. Indeed a request from the Court in the present case for him to appear to explain himself was refused – try that in the High Court in the UK. It did not go down well in New Delhi either. The Court, having chucked out his hapless client’s application, declared that Goyal was guilty of conduct unbecoming an advocate, and told him that if he did not do better over the next year (i.e. turn up to court for his clients) he would get struck off.

The underlying facts show the dangers of allowing all of law to be run completely on business lines. Goyal had found an excellent and cost-efficient business niche. But as the Court explained

In a system, as revealed in the instant case, a half baked lawyer accepts the brief from a client coming from a far distance, prepares the petition and asks an AOR , having no liability towards the case, to lend his signatures for a petty amount. The AOR happily accepts this unholy advance and obliges the lawyer who has approached him without any further responsibility. The AOR does not know the client, has no attachment to the case and no emotional sentiments towards the poor cheated clients. Such an attitude tantamounts [sic] to cruelty in the most crude form towards the innocent litigant.

What is it about law that gives rise to this imbalance? If I go into the bread shop, and am asked £10 for my loaf, I walk out, because I know the price of bread. If I go to my lawyer about a case, which as an individual, I may do (if I am unlucky) once in my life, I have little idea of the standard of the service which I might receive. Even if it were Stobart- or Tesco- law, I might hope that they do things reasonably well, but in truth most people would not really know. Indeed most of us expect never to be arrested in our lives, so we don’t know what can be done by our lawyers if we end up there.

That said, turning up to court is normally expected of an advocate. Indeed, a little more than that, as the Court cuttingly observed

Thus, not only is his physical presence but effective assistance in the court is also required. He is not a guest artist nor is his job of a service provider nor is he in a professional business nor can he claim to be a law tourist agent for taking litigants for a tour of the court premises.

“Service provider”, now there is a phrase beloved of those designing our new criminal justice system – necessary, but not sufficient, for justice.

The Court continued by pointing out that in the present era, the legal profession, once known as a “noble profession”,

has been converted into a commercial undertaking. Litigation has become so expensive that it has gone beyond the reach and means of a poor man. For a longtime, the people of the nation have been convinced that a case would not culminate during the lifetime of the litigant and is beyond the ability of astrologer to anticipate his fate.

The  UK system still has to crack the costs of litigation, given the  conflicting difficulties of litigating properly and cost-efficiently for clients, but it is at least working on that hard, But we do seem to have sorted the time it takes to get to answer problems which we set our judges. Timing has been ruthlessly policed by our courts in recent years, so that you need a pretty good excuse for doing something late or slowly. So, unlike the gloomy picture presented by the Indian Supreme Court, most people know whether they have won or lost before they die – so astrologers are not generally necessary.

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Sparks fly in the Ukraine

4 July 2013 by

electrical-discharge-in-multiple-sparks-from-prongs-pins-of-uk-electric-mains-plug-3-prong-fuse-carrier-in-base-rescan-rescan-rescan-ajhdKirovogradoblenergo, Pat v Ukraine (Application no. 35088/07) 27 June 2013 – read judgment 

Shortly after the break up of the Soviet Union, the Ukraine introduced an interesting piece of legislation called the Status of Judges Act.

Being a judge behind the Iron Curtain couldn’t have been much fun, and rendering the profession more attractive once society had opened up somewhat was probably one of the more pressing challenges facing the new regime. One of the chief provisions in the SoJA was to spare members of the judiciary from paying half their electricity bills. What this tells us about the status of judges before and shortly after the dissolution of communism is itself an interesting subject, but outside the scope of this post.
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Litigating equality: a costly business?

5 April 2011 by

Commission for Equality & Human Rights v Griffin, Lumby, Darby

[2011] EWHC 675 (Admin) Read judgment

The Commission for Equality & Human Rights has been ordered to pay costs of court proceedings to two members and a former member of the British National Party. Although the decision is a technical one relating only to costs of proceedings, it highlights the financial risks which must be borne by those seeking to police and enforce compliance with the requirements of human rights law.
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Where will £2bn of Ministry of Justice cuts come from? [Updated]

11 August 2010 by

Ken Clarke

The Ministry of Justice (MoJ) is to cut £2bn from its £9bn or so budget. But where will this 20% cut come from?

Kenneth Clarke’s MoJ are said to have got in early in agreeing spending reduction targets with the Treasury, and yesterday it was reported by the Public and Commercial Services Union that senior staff were informed by email that the cuts will amount to around £2bn of the overall budget. The Union suspect that around 15,000 of the MoJ’s 80,000 staff may have to be axed.

However the MoJ makes the cuts, a reduction of around 20% is likely to have severe effects on access to and provision of justice in the United Kingdom. Various MoJ-funded bodies have already been lining up to explain why their departments could not survive on much less. The criminal legal aid system has long been said to be in crisis, the President of the Family Division indicated last week that the child protection system is in grave danger of imploding, and the Chief Executive of the Supreme Court has said the cuts could cripple the new court.

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