Author: Bethany Collings

Report from the Committee of Public Accounts – Costs in Clinical Negligence

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The Committee of Public Accounts has published its latest report on the rising costs in clinical negligence – an important read for all those practising in this area. Notably, the report recommends that the Department for Health and Social Care clarify its position on a fixed recoverable costs scheme for lower-value clinical negligence cases at the earliest opportunity.

You can find the full report here.

Bethany Collings is an Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com

The expensive mistake of not engaging with Part 36 offers

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The recent High Court decision in Learning Curve (NE) Group Ltd v Lewis & Anor [2025] EWHC 2491 provides an important reminder of the consequences of making or failing to accept a settlement offer under CPR Part 36.

Underlying proceedings

The case concerned a Share Purchase Agreement dated 29 October 2021, under which the Claimant acquired shares from the Defendants. The Claimant brought a claim for breach of warranty under an indemnity contained in the Share Purchase Agreement.

On 7 February 2024, the Claimant made a Part 36 offer to settle for £5,211,625, with which the Defendants did not engage. This was unusually the exact same amount that was awarded within the judgment dated 4 August 2025.

Consequential Judgment

The central issues before the Court were whether the Part 36 offer was valid and clear, the application of Part 36 consequences under CPR 36.17(4), the appropriate interest rates on the judgment sum and costs, and the bases of assessment for the costs Orders.

The Defendants argued that the offer was unclear because it did not explicitly take into account their prior payment, while the Claimant contended that the offer was clear and should trigger Part 36 consequences.

HHJ Russen KC held that the Claimant’s Part 36 offer was valid and that the amount awarded under the judgment matched the offer. This meant that the full consequences of CPR 36.17(4) were triggered. The Court rejected the Defendants’ argument that the offer was unclear, noting that they could have sought clarification under CPR 36.9.

Interest was awarded at 2% above the base rate for the period until the expiry of the relevant period, and 8% above the base rate thereafter until the judgment date. The Court ordered costs on the standard basis for work done prior to the expiry of the relevant period and on the indemnity basis thereafter. The Judge ordered a payment on account of costs amounting to £1,257,382, representing 100% of the budgeted costs, and awarded an additional Part 36 amount of £75,000 (which is the maximum amount that can be awarded in accordance with CPR 36.17).

Practical implications

This case highlights the importance of making effective Part 36 offers. A carefully considered and timely offer that is not accepted can lead to substantial additional costs, interest and other consequences. Although the Part 36 offer in this case did not explicitly address the prior payment, the Court found it was sufficiently clear that the Part 36 offer was in respect of the entire claim, including the prior payment. Parties should therefore seek clarification promptly if they are unsure on the terms of a Part 36 offer.

Bethany Collings is an Associate in the Costs and Litigation Funding Team at Clarion Solicitors and can be contacted at bethany.collings@clarionsolicitors.com or on 07774 951949.

CPRC update – Flexibility in summary assessments of costs

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The Civil Procedure Rule Committee (CPRC) has approved amendments to CPR Part 44 and Practice Direction 44 following consideration of the Court of Appeal’s decision in R (Isah) v Secretary of State [2023] EWCA Civ 268.

Background

Ordinarily, a summary assessment of costs is undertaken at the end of a hearing. Practice Direction 44, paragraph 9.7, allows for an assessment at a later date, but requires it to be before the same Judge. In Isah, the Court of Appeal confirmed that the current rules do not permit summary assessments to be carried out by a different judge.

This created difficulties in practice, particularly where:

  • the original judge is unavailable;
  • the assessment has been adjourned and listing before the same judge is impractical; or
  • similar issues arise across multiple hearing.

The proposed amendment

The CPRC agreed to amend the rules to introduce flexibility, and this is now reflected in The Civil Procedure (Amendment No. 2) Rules 2025 allowing the court to give directions for the summary assessment of the costs to be made at a later date by “another judge who could have decided the claim or application” where there is “good reason” for doing so.

Key points include:

  • The Committee rejected a higher threshold of “exceptional circumstances”, preferring a test that strikes a balance between flexibility and preventing a shift towards routinely reassigning assessments.
  • The Committee reaffirmed the distinction between summary and detailed assessment. Delegating summary assessment to costs officers was considered inappropriate, as it would risk eroding that distinction.
  • The Chair stressed that the amendment is not creating a new route for delegation but addressing an inflexibility highlighted by the Court of Appeal’s judgment.
  • Where appropriate, the direction for summary assessment at a later date should be given when the substantive decision is made, though the choice of judge does not need to be determined immediately.

This change is due to come into effect on 1 October 2025 along with, subject to finalisation, the proposed changes to PD 44.

The amendment should ease case management difficulties by providing courts with greater flexibility while maintaining the important distinction between summary and detailed assessment. Practitioners should expect that while the power will remain sparingly exercised, it will offer a pragmatic solution where rigid adherence to the same judge requirement would cause delay or injustice.

Bethany Collings is an Associate in Clarion’s Costs and Litigation Funding Team and can be contacted at bethany.collings@clarionsolicitors.com or on 07774 951949.

CJC Report on Litigation Funding

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The Civil Justice Council (CJC) has today published its much-anticipated report on litigation funding – arriving slightly ahead of the expected summer 2025 release. You can read the full report here.

Watch this space for our detailed blog outlining the key takeaways.

Bethany Collings is an Associate in Clarion’s Costs and Litigation Funding Team and can be contacted at bethany.collings@clarionsolicitors.com or on 07774 951949.

Section 70 of the Solicitors Act 1974 – the importance of clear billing agreements and accurate cost estimates

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In the recent judgment of Toplasson GmbH v CMS Cameron McKenna Nabarro Olswang LLP [2025] EWHC 118 (SCCO), the Claimant sought an order under section 70 of the Solicitors Act 1974 (“the Solicitors Act”) for the Detailed Assessment of 27 invoices raised by the Defendant. All but the last bill was delivered more than 12 months before the issue of proceedings and all but the last 8 bills were paid more than 12 months before the issue of proceedings.

The Claimant, a software supplying company, instructed the Defendant, in August 2019 to prepare a contract with a customer on their behalf. The contract was subsequently terminated by the customer, which resulted in litigation and a judgment against the Claimant in the sum of €5 million, which at the time of the hearing, was being appealed by the Claimant. There were therefore two retainers between the parties, one in respect of non-contentious work for preparing the contract and the second for contentious work in respect of the litigation. Work commenced in respect of the litigation in April 2020.

There were three costs estimates given to the Claimant. The first was provided in July 2020, which was the day before the mediation was to commence, in the sum of £1,920,664. This included incurred costs of £240,000. The Defendant then filed a case management sheet in July 2021 which stated that the incurred costs were at that point £565,000, and the estimated costs to trial were £2.05 million. The final costs estimate was provided in March 2022 where future costs were stated as £1,717,500.

The invoices largely followed the same format and included a description of the work done in a similar level of detail to that which would be set out in a bill of costs, or breakdown, for Detailed Assessment. The first invoice in respect of the non-contentious work was delivered in July 2019. The Defendant issued monthly invoices for their work thereafter, with the final one delivered in May 2022.

As the litigation progressed, the balance of fees outstanding grew, with a partial payment of £500,000 fees made in January 2022. By May 2022, unpaid legal costs reached £1.3 million, prompting the Defendant to terminate their retainer.

Key issues considered

The case proceeded, based on the determination of the following key issues:

  1. The status of the bills and whether they were interim statute bills or a series of on account bills which taken together formed a Chamberlain bill?
  2. Under which subsection of section 70 of the Solicitors Act did the bills fall under?
  3. Insofar as the bills (or any of them) were found to come within the subsections of section 70 of the Solicitors Act, on what basis could an assessment be ordered?
  4. Did the Court have power to make an order for Detailed Assessment restricted to the profit costs and all other disbursements (excluding counsel’s fees and Court fees) under section 70(6) of the Solicitors Act?
  5. Should the Court make any order for payments on account and if so, for how much?

Judgment

In respect of the first issue, the Defendant’s position was that the bills were interim statute bills, and final bills for the periods they covered. Meaning only the final 8 could be subject to assessment, unless ‘special circumstances’ were proven. The Claimant’s position was that all 27 bills were on account bills that together formed a single final statute bill on 7 June 2022.

Senior Costs Judge Gordon-Saker ruled that the Defendant did not have the right to render interim statute bills because:

  • The retainer agreements did not explicitly state that each bill was “final” for the period it covered.
  • The wording in the agreements (“keep you informed of the level of costs incurred”) was more consistent with monthly billing.
  • Previous case law showed that without a clear statement that bills are final, they do not qualify as interim statute bills.

The bills collectively formed a single final statute bill on 7 June 2022 and the Claimant was therefore entitled to request a Detailed Assessment of all 27 bills, totalling £2.15 million.

For the purposes of the second issue, the judgment analysed which subsection of section 70 applied:

  • Section 70(2) applies when the client seeks an assessment within 12 months of receiving the bill and provides that the Court may order such assessment on such terms as it sees fit.
  • Section 70(3) applies if more than 12 months have passed and requires the client to prove ‘special circumstances’.

The Judge found that because the final bill was issued on 7 June 2022 and the claim was brought within 12 months, section 70(2) of the Solicitors Act applied, and the Claimant did not need to prove ‘special circumstances’.

Although the Claimant did not need to prove ‘special circumstances’, the Judge still examined key factors which were raised by the Claimant. In particular, the Claimant argued that the Defendant unlawfully ended its services. However, the Judge rejected this, finding that the Defendant was entitled to stop work due to non-payment.

Furthermore, the Defendant’s initial estimate was £1.95 million, but later invoices suggested costs could reach £3.7 million. The Judge therefore found, that even if section 70(3) of the Solicitors Act applied, the large discrepancy in cost estimates alone would justify a Detailed Assessment.

With regards to the question as to whether the Court could order a partial assessment, which excluded counsel and Court fees, as per the Claimant’s request, the Judge decided that section 70(6) of the Solicitors Act, did allow the Court to exclude certain categories of costs at assessment, and limit the assessment to profit costs and selected disbursements only. It was concluded that the Claimant can challenge only the parts of the bill they have disputed, rather than being forced into a full assessment. It was the Defendant’s position that this was not possible, and all costs should be assessed together.

The Court confirmed:

“… it seems to me that it is not necessary to shoehorn what was charged as a disbursement into the profit costs. The Claimant is not unhappy with counsel’s fees (and I understand that the same counsel are continuing to act for it) and nor is it unhappy with the court fees. It would be absurd to force the Claimant into an assessment of either. They would be included in the breakdown and then not challenged in the points of dispute. Their only effect would be in increasing the size of the bill when calculating whether one-fifth had been disallowed for the purposes of considering the incidence of costs under s.70(9).”

This was important for the purposes of the 1/5 rule in section 70(9) of the Solicitors Act, which will largely determine who is responsible for the costs of the assessment process. Had the Court ordered assessment of all fees, then the threshold for reducing the bill by 1/5 would have increased significantly for the Claimant, meaning they were more unlikely to recover their costs of assessment from the Defendant, even if significant reductions were made to the issues they were disputing.

The ruling reinforces the need for good housekeeping in respect of accurate fee estimates, and for solicitors to ensure they have a right to raise final ‘statute bills’ during the course of the retainer, if they wish to do so.

Bethany Collings is an Associate in Clarion’s Costs and Litigation Funding Team. You can contact the team at civilandcommercialcosts@clarionsolicitors.com.

Litigant in Person required to file and serve a costs budget

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In a recent Judgment, Cotham School v Bristol City Council & Ors [2024] EWHC 824 (Ch) it was held that a Litigant in Person (“LIP”) was required to file a costs budget as they instructed Direct Access Counsel. HHJ Paul Matthew handed down a judgment following an application for a costs capping order under CPR rule 3.19.

HHJ Paul Matthew stated:

“It seems to me that, if there is any risk, let alone a substantial risk, that disproportionate costs would be incurred in this case, the better instrument for preventing that undesirable event is effective costs management orders, rather than the ‘blunt instrument’ of a costs capping order. In the circumstances, I propose to order pursuant to rule 3.15(1) and (3)(a) that, although this is a Part 8 claim, and although the second defendant is a litigant in person (albeit employing counsel on a direct access basis), all parties must file and exchange costs budgets not later than 21 days before the first case management conference. Having so ordered, the preconditions for a cost capping order under rule 3.19 are not satisfied, and I decline to make such an order.”

Under CPR 3.12(1), LIPs are exempt from complying with costs budgeting. However, the Court retains discretion to order a person to file and serve a costs budget, even if they are not obliged to do so pursuant to CPR rule 3.12(1A).

HHJ Paul Matthew referred to the case of Campbell v Campbell [2016] where Chief Master Marsh confirmed:

“Furthermore, the court may decide to make a costs management order in relation to a litigant in person’s budget. Indeed, in a case in which a litigant in person is likely to be seeking a substantial costs order, whether because there will be fees of counsel under the Direct Access scheme or otherwise, it may well be desirable to do so.” 

Conversely, HHJ Paul Matthew referred to the case of CJ and LK Perk Partnership v Royal Bank of Scotland [2020] EWHC 2563 (Comm), where it was held that LIPs with direct access Counsel should not file and serve costs budgets.

In this case, although the LIP had instructed Counsel under the direct access scheme and did not instruct solicitors, HHJ Paul Matthew concluded that due to the potential significant claim for costs if successful, all parties, including the second Defendant (the LIP), should file and serve a costs budget, regardless of the nature of Part 8 proceedings.  

Bethany Collings is a Paralegal in Clarion’s Costs and Litigation Funding Team and can be contacted on 07774 951949 or at bethany.collings@clarionsolicitors.com

Proposals for change to Practice Direction on Interim Remedies and Security for Costs

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Introduction

At present, the Civil Procedure Rule Part 25 has two Practice Directions: Practice Direction 25A and Practice Direction 25B. The Civil Procedure Rule Committee confirmed within their most recently approved minutes (attached below) that a new shorter Practice Direction will be introduced. 

Agreed key points include:

  • Applications and evidence (Rule 25.3) should contain a signpost to Part 23 (general rules applications and court orders) to assist users;
  • Under evidence (Rule 25.7) it was noted that the reason why notice was given is a material fact and an obligation already exists, without the need for it to be expressly provided for in the rules;
  • There is a need for the supervising solicitor provision under the provision for service, timing and individuals involved (Rule 25.17) is to be redrafted;
  • Form numbers should be replaced with “approved form”;
  • Other drafting revisions as noted by the Secretariat, to be adopted for further review and resolution, prior to consultation; and
  • Remaining provisions within the Practice Directions that are not within the draft reformed rules, could be removed altogether because:
  1. the reference to out of hours contact details can be done by a signpost and appropriate web information;
  2. the reference to finding a Supervising Solicitor from the Law Society or London Solicitors Litigation Association can be removed, because it is in relevant Court Guides;
  3. the statement about privilege is a statement of the law and does not need to be repeated in a Practice Direction in this way; and
  4. the statement that applications for interim remedies in IP cases ought to go to the Chancery Division does not need to be made here because that is the effect of the relevant rules already.

Post meeting it was confirmed that paragraph 25.1(1)(p) (the reference to continuations subject to guarantees under Article 9 of Directive 2004/48/EC) can be removed because it is unnecessary. It was confirmed that the remedy is available in the courts irrespective of its being listed in that rule in that way and the reference to the Directive is potentially confusing.

There will also be a review of courts forms, specifically the:

  • N244 Application notice;
  • N16A Application for injunction;
  • N361 Notice of application for relief in pending action;
  • PF43 Application for security for costs; and
  • PF44 Order for security for costs.

Bethany Collings is a Paralegal in the Costs and Litigation Funding Team at Clarion Solicitors. You can contact her at bethany.collings@clarionsolicitors.com or on 07774951949.

CPR Committee MinutesDownload

Costs of attending pre-inquest review can be recoverable

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The judgment of Costs Judge James Briley & Ors v Leicester Partnership NHS Trust & Ors [2023] EWHC 1470 (SCCO) provides further insight into the recoverability of costs associated with a Coroner’s Inquest as part of the costs of a subsequent civil claim. Although it is usually accepted that such costs are recoverable in principle, it is not uncommon for paying parties to attempt to limit the extent of claims for costs. One area which is often targeted are costs in respect of pre-inquest review hearings, which can be deemed to be ‘housekeeping tasks’.

The claim related to a young woman who died whilst under the Defendant’s care. The deceased had a substantial history of mental health issues as well as Asperger’s Syndrome and a diagnosis of emotional unstable personality disorder. The deceased also had a history of self-harm and suicide attempts and had been admitted to various mental health units throughout her lifetime. The deceased passed away on 28 December 2016, having been found on her bedroom floor having ligatured with her clothing. The cause of death was an un-survivable hypoxic brain injury.

Following the deceased’s death there was a serious incident investigation which identified a number of concerns. Thereafter there was a further investigation and a future inquest. The deceased’s representatives subsequently brought claims against the Defendant for damages. The civil claims concluded before the inquest took place, however there were two pre-inquest reviews which addressed issues of expert evidence, disclosure, and witness evidence before the damages claim was settled in the sum of £65,000.

In the subsequent detailed assessment of costs, one of the issues between the parties was the extent to which the costs associated with the inquest were recoverable from the Defendant. In particular, the Defendant took issue with the costs of attending the pre-inquest review hearings, which amounted to a total of £14,770.67, including Counsel’s fees, Solicitors costs and disbursements.

The Defendant objected to all costs associated with the pre-inquest reviews largely on grounds that they denied that the costs incurred were of use in the civil claim. This was based on the submission that full admissions of liability had been made and the Defendant had apologised at the time of the deceased’s death. They also suggested that a pre-inquest review was largely ‘housekeeping’ and they relied on the decision in Amanda Helen Lynch (Representative of the Estate of Colette Lynch) and Others v (1) Chief Constable of Warwickshire Police (2) Warwickshire County Council and (3) Warwickshire NHS Trust [14 November 2014], which is an example of a Costs Judge disallowing the costs of a pre-inquest review.

In rejecting the Defendant’s arguments, the Costs Judge confirmed the importance of finding out what caused the death in the first place was a significant factor. It was also held that the fact that the deceased’s representatives had gone on to secure a meaningful apology and a commitment to learn lessons from the death were as important as the financial value of the damages recovered.

As regards the Defendant’s suggestion that the costs were of no use in the civil claim, the Costs Judge found that the participation in the pre-inquest reviews shed light on the treatment received by the deceased, which assisted in considering the non-negligence aspects of the civil claim. In addition, it was found that representation at the pre-inquest reviews helped prevent the Coroner from being influenced by the Defendant’s representatives which may have prevented key documents and facts coming to light. The costs of attending the pre-inquest reviews were therefore allowed in principle.

Bethany Collings is a Paralegal in the Costs and Litigation Funding team and can be contacted at bethany.collings@clarionsolicitors.com or on 0777 951949.

Statements of Costs for Summary Assessment – Recent Developments

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Today, I presented at our annual commercial litigation webinar on the topic of Statements of Costs for Summary Assessment, where I covered the following:

  1. What is a summary assessment?;
  1. A review of the rules and practice direction;
  1. Recent case law and practical points; and
  1. What’s new?

Statements of Costs for Summary Assessment have been a somewhat ‘dry’ area of costs law for a long period of time, but over the last few years there has been a lot of activity and an increase in reported cases concerning breaches of CPR 44 CPD 9.5.  The Court has a fairly wide discretion when faced with such breaches by virtue of CPR 44 CPD 9.6 which states:

‘The failure by a party, without reasonable excuse, to comply with paragraph 9.5 will be taken into account by the court in deciding what order to make about the costs of the claim, hearing or application, and about the costs of any further hearing or detailed assessment that may be necessary as a result of that failure.’

The court should also apply the case of MacDonald v Taree Holdings [2001] 1 Costs L.R. 147 when considering imposing its power under CPR 44 CPD 9.6. The test set out in this case is:

“What, if any, prejudice has that failure to comply caused to the other party? If no prejudice, then the court should go on and assess the costs in the normal way. If satisfied it has caused prejudice, the next question is: how should that prejudice be best dealt with.”

The case law that I covered in the presentation was:

1. Kuznetsov v London Borough of Camden [2019] EWHC 3910 (Admin)

2. Mahandru v Nielson [2021] EWHC 2297 (QB)

3. Changing Climates Ltd v Warmaway Limited [2021] EWHC 3117 (TCC)

4. Vine v Belfield [2021] EWHC 3068 (QB)

The above cases are all examples of where the Courts were faced with breaches of CPR 44 CPD 9.5 and they all reached different outcomes.

If you have any questions on Statements of Costs for Summary Assessment or require assistance with the preparation of a Statement of Costs or help with challenging a Statement of Costs ahead of a hearing, then please do contact me at andrew.mcaulay@clarionsolicitors.com or on 07764501252. We also offer in person or remote/video training on this area of costs law.