Detailed guidance from Master Gordon-Saker on recoverable costs between the parties in Fuseon Ltd, R

The recent judgment in Fuseon Ltd, R provides a reminder of a number of established principles in respect of recoverability of various heads of costs between the parties.

The costs claim arose from a private prosecution by Fuseon Ltd, a Lancashire based letting agency, against a Director of the business who had committed fraud and theft of over £100,000 relating to tenancy deposits, personal expenses and false invoices. The police were unable to investigate and therefore the company brought a private prosecution using Central London firm, Edmonds Marshall McMahon Limited, having failed to find a local firm to take the case. The Director was ultimately convicted and an order was made for a payment of costs to the prosecution out of central funds including costs of the investigation. 

Costs were submitted in the sum of £427,909.00 to the Criminal Cases Unit of the Legal Aid Agency and were initially determined by the case manager in the sum of £180,000.00. The key decisions being a reduction from London hourly rates to Preston guidelines, a reduction in travel time to what would have been reasonable for a local firm, removal of duplication between fee earners, non-fee earner work, and a Singh reduction for proportionality.

Fuseon requested a redetermination and costs were increased to £240,000.00, a subsequent appeal was then dismissed by Master Rowley. In August 2019 Fuseon commenced judicial review proceedings and the decision of Master Rowley was quashed. It was directed that the assessment of the Claimant’s costs be remitted to the Senior Costs Master for further directions. The matter came before Master Gordon-Saker who re-heard the appeal from the determination of the case manager. This was dealt with on the papers at the Claimant’s request.

Hourly rates – At the initial assessment, it was not accepted that there was no choice but to instruct a central London firm. Rates for a local firm were therefore applied based on guideline rates for Preston. Master Gordon-Saker, guided by the comments of Lane J. in the judicial review judgment, found the use of a Central London firm to be reasonable on the facts. The Claimant had carried out suitable research and contacted firms but could not find anyone offering private prosecutions for fraud. It was reasonable to use London solicitors due to the specialism required. The hourly rates claimed were therefore reviewed against the guidelines for central London. The rates were allowed save for reductions to the Grade C and D handlers. It is worth noting that Master Gordon-Saker commented at paragraph 30 that ‘the guideline rates are of course just that. They are fairly blunt instruments designed to assist judges in the summary assessment of costs. The passage of time since 2010 means that they tend now to be used as a starting position rather than as carved in stone.’

Travel time – Additional travel was allowed in light of the permitted use of London Solicitors, however, travel to attend the client was disallowed as a client is generally expected to travel to attend their solicitor. 

Inter-fee earner discussions / duplication – Detailed guidance was provided in respect of what is and is not recoverable in this regard in paragraphs 42 through 44. Master Gordon-Saker confirmed that ‘reasonable time spent in inter-fee earner discussions is properly allowable. It is difficult to delegate tasks to junior fee earners without instructing them what to do and the reasonable time of the delegator and delegate is usually now considered to be recoverable. […] On the other hand, two fee earners attending on a witness or the client will rarely be reasonable, unless there is a specific reason. Lawyers should be reasonably adept, like most people, at speaking or listening and writing at the same time. For similar reasons I cannot see that more than one fee earner attending trial, together with Counsel, was reasonably required.’ For example, additional time was allowed for the Partner reviewing documents such as witness statements prepared by others but time spent for an additional fee earner to prepare for attendance at the trial was removed.

Non-fee earner work – Researching social media, contacting witnesses about the trial and preparing bundles were allowed as work normally carried out by fee earners. Items that were disallowed included photocopying (described in the bill as ‘collating extra copies’ and ‘preparing copies’), printing, posting, booking flights, and elements of the bundle preparation such as scanning.

Proportionality – Following from the judicial review judgment, it was found that the initial use of the CPS as a comparator to find the costs disproportionate was not legitimate. The Claimant had tried his best to get the police to take the case and his decision to institute the private prosecution was a last resort. The hours spent by each fee earner were considered and reductions were made to the principal handler and the Grade D assistants.

Points to take away

  • Use of a London firm may be reasonable for a particular specialism and if the client has made such enquiries as can reasonably be expected of a person in their position.
  • Travel to attend the client is not generally recoverable, I would suggest that this would turn on the facts and would be recoverable if there was a particular reason such as incapacity or the need for a site inspection.
  • Multiple fee earners attending meetings and hearings will be vulnerable at assessment. The context of the meeting should be considered.
  • Inter fee earner discussions are recoverable where it is necessary for delegation purposes. Again, consider the context of the meeting.
  • Care should be taken when describing tasks associated with preparing bundles to show legitimate fee earning work rather than scanning and copying.

Helen Spalding is an Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact her at or on 0113 288 5639.

Lockdown Lowdown – Clare King

This blog forms part of a series of weekly interviews with several professionals during lockdown. It is aimed to inform Deputies and their teams about how each organisation within the field of Court of Protection has adapted to Covid-19. Our first willing participant for Lockdown Lowdown is Clarion’s very own Clare King. Clare is a Legal Director at Clarion Solicitors and leads our Court of Protection Team.

  • How have you had to adapt to work during lockdown?

We have had to find ways of supporting our clients in place of seeing them in person. Care providers have generally been brilliant, with several companies accepting bank transfers from us on behalf of clients so that they can draw out cash and deliver it to clients to pay for shopping and other services. We have also had to be creative with processes such as mental capacity assessments and preparation of applications, which mercifully can be signed electronically for now, allowing some applications to still be lodged.

  • What impact do you think this will have on professional Deputies?

A lot of our day to day work has ground to a halt as the COP is only dealing with urgent cases; Adult Social Care are operating a vastly reduced service; neither we nor other professionals such as case managers can actually visit clients, and lots of supporting services have stopped – community groups, gardening and property maintenance etc. We are just trying to ensure that our clients are safe and have food, accommodation and basic care services. That is all we can do. On the plus side, care homes have been forced to accept bank transfers for pocket money for residents so hopefully when this is all over, that will remain and negate the need for lawyers to go out just to drop cash to care homes, which we can’t generally recover the cost of!

  • Have you learnt anything so far from the pandemic?

People are incredibly generous with their time and resources to ensure that people with care and support needs are safe during the pandemic. Also, people are suffering a great deal with distress over not being able to visit loved ones in care homes which has been very sad to witness; it has reinforced to me how loved people with dementia are, despite all the changes (and challenges) that the disease can bring.

  • Have there been any reoccurring issues that your team has faced?

Very sadly we have lost two clients in one weekend from the COVID-19 virus and proper funerals cannot be held. I do not imagine that they will be the last so I think we will see this again and again. This virus has got a great deal to answer for.

  • Have you and the team managed to get into a routine?

Yes – we have all found ways to continue to work with our clients around the demands of working from home with families! Members of our team are working really hard to continue to support clients including some very early mornings and some very late nights when small children are in bed!

  • Have you experienced any difficulties with the Court?

Quite to opposite – Lynsey Harrison had a day long hearing in the Court of Protection using Skype for Business which was brilliant. They have had to prioritise certain cases but that is wholly understandable.

  • How have you been managing your clients?

Telephone calls and more telephone calls! Plus heavy reliance on the superhero home care workers and care home workers. NHS frontline staff are heroes but so are the people who are quietly continuing to care for some of the most vulnerable people in our society during this crisis.

  • Have you come across any useful forums/websites to assist professional deputies?

The PDF have been holding weekly meetings that I haven’t actually been able to attend yet due to pressure of work but the option is there and it is appreciated. Also, Practical Law have done a great guidance note that pulls together all the resources so together with the very regular guidance issued by HMCTS there is ample support for professionals out there.

  • How have you been keeping busy during lockdown?

How did I have time to come to the office?! Between work, family, jobs in the house and garden, Zoom calls with family, friends and colleagues, and the emergency community network I have helped to set up, there isn’t any time! My social life (albeit on a screen) has never been so busy!!

  • What are you most looking forward to after lockdown?

Racing down south to have a massive actual hug, as opposed to a virtual one, with my mum, dad and sister and then seeing my brother as soon as flights to Spain are reinstated as I miss them desperately. On the plus side, we are all safe and well so far.

Clare King and her team continue to work remotely to support their clients. If anyone has any questions for Clare, please contact her at

Coming up in the series, we will be hearing from Francesca Gardner from Kings Chambers, Master Haworth from the SCCO and Ria Baxendale from the OPG. If you would like to suggest another interviewee for Lockdown Lowdown, please contact Stephanie Kaye at or call 0113 3363402.



COVID-19 – the practical impact on professional Deputies and the SCCO

During these uncertain times, communication is key. Clarion are in regular communication with the Senior Courts Costs Office to understand and share how they will be adapting to continue to service CoP cases.

Firstly, electronic signatures will be accepted. The SCCO still require the hard copy files of papers to undertake the assessment, however, they have extended the timescale for professionals to send the papers following e-filing from 5 days to 28 days, which will be a great help.

It will come as no surprise that the assessment turnaround will be delayed further by these challenges. The SCCO are working with a virtual costs office with cases being dealt with remotely wherever possible.

To help struggling firms, there is a move in the CoP to increase the interim payment to 85% for a full year’s general management charges. This will mean a change to Practice Direction 19B, which is under review. Further information about this will be shared as soon as possible.

Clarion are fully equipped during this time to continue working with professional Deputies to have their bills of costs drafted for assessment. If you have any queries, please contact Stephanie Kaye at or call 0113 3363402.



Designated Civil Judge for Cheshire and Merseyside issues guidance for business in the Cheshire and Merseyside Courts

His Honour Judge Graham Wood has released guidance for all business conducted in the Liverpool and Chester County Courts and the Cheshire and Merseyside Cluster for Civil Work.

  1. Small claims track hearings.

All small claims track lists will be vacated until after 4th May, and orders will be sent out accordingly. It is considered that it would not be practicable to have these matters, in most of which the parties are unrepresented, proceed by telephone or remotely. Because of the way these cases are listed, there is likely to be significant personal contact between individuals and court staff, which is not justified in the circumstances. New dates will be sent out in due course.

  1. Fast track and multitrack trials and other open court face to face hearings such as injunctions and committals

The default position for all fast track and multi-track cases will be that they shall be vacated for a minimum period of four weeks from 25th March 2020. The position will be reviewed for the period thereafter. It is considered that insufficient safeguards can be introduced for the majority of trial work to ensure social distancing and negligible contact with staff and other court users. As it is the default position, it will be clear from orders vacating, (a judicial order subject to CPR 3.3 (5) ) that parties can apply for a variation and the reinstating of the trial. However it is only in the most exceptional cases that any such order will be varied and it will be incumbent on the parties to demonstrate that safety can be assured and social distancing preserved and that continuation of the trial is consensual between all parties and advocates.

Trials listed within a window up to 1st June will be vacated and parties will be notified of the new trial window in due course. Any payment of the hearing fee will also be deferred to a later date.

Committals (including arrest cases for ASBI and gang breaches) and injunctions will remain listed in court but may be subject to vacating after assessment by a judge.

  1. Appeals

Oral renewals will be heard from 30th March remotely. Litigants in person will be given a number to dial into, in the absence of any representative, but if a party is legally represented it is expected that the responsibility will lie with the lawyer to set up as usual. Arrangements are being put in place to have full appeals proceed remotely in straightforward cases, although it is likely that more complicated heavy documented appeals will be stood out.

  1. CCMCs and Chambers lists

This will cover interim applications, pre-trial reviews, applications to set aside etc, as well as costs and case management. All cases will now proceed by remote hearing. Parties are encouraged to cooperate in the mode of hearing (usually telephone) and the usual arrangements for telephone hearings will apply, with one party being directed to organise. It should be borne in mind that litigants in person are not to be excluded from the telephone hearing process, and lawyers are encouraged to ensure that unrepresented parties are aware of the process involved and can properly participate. If both parties are unrepresented, they will be contacted by the court with a number to dial into. There is active consideration being given to a new telephone system for hearings from BT which can be controlled by the judge, and full details will be supplied when this is up and running (BT Meetme).

  1. Stage 3 hearings and disposals (back-to-back lists)

It is proposed that these should now proceed by a remote method, preferably by Skype. There is to be liaison with local practitioners as to the processes involved, including the filing of the necessary documents to enable consideration by the judge, but the intention will be that where cases are block-listed they can be assigned to a particular judge (say 4 or 5 cases per hour) and counsel can still enter the video-conference as and when it is necessary to consider a particular case. This will still enable counsel to attend on other Skype conferences, in a virtual courtroom, in much the same way as happens now in actual courtrooms. These procedures will require the cooperation of practitioners to work efficiently. Current technical difficulties are being ironed out.

  1. PCOL, mortgage and possession cases (both private and social)

Whilst some housing work will continue (e.g. urgent ASBI injunctions, committals etc) in accordance with national guidance the default position will be that all possession claims and evictions will be vacated and postponed for at least three months. The current working date is 19th June, although this may change.

  1. Oral examinations, attachment of earnings and third party debt orders

Oral examinations will be vacated. It is clearly inappropriate for members of staff and members of the public to be in such close association. Fresh dates will be provided after 19th June. Consideration is being given to moving attachments of earnings hearings and third party debt order hearings to a remote method, but this has not yet been finalised. For the time being, parties should assume that these cases will continue as before.

  1. Insolvency and BPC work

It is intended that separate guidance will be issued in relation to the BPC (mainly Chancery and TCC) work which is conducted in Liverpool, in line with national and regional guidance for these cases, which is likely to involve a substantial amount of remote hearing. Please consult that guidance when available. In relation to corporate and personal insolvency, consideration is being given to finding alternative methods of dealing with these cases, but for the time being please assume that they will continue as face-to-face hearings until notified to the contrary.

  1. Infant Approvals

In the short-term infant approval hearings are being dealt with as telephone hearings. Parties should be aware of the need to ensure the judge has sight of the birth certificate and the CFO form by filing them at court 3 days prior to the hearing. However, over coming weeks in Liverpool at least I propose to adopt the new Birkenhead practice of having these hearings proceed as “paper hearings” to minimise the strain on the telephone capacity.

  1. Other matters

I am conscious that this is not a comprehensive list of all matters which proceed in the Liverpool and Chester civil courts at present and that there are various species of case, the method of hearing of which has yet to be resolved, and which will depend upon a number of circumstances. Both I and other senior judges are happy to receive representations about the best method of proceeding in the current climate. After all, we are all on a learning curve. Please send any suggestions my Diary Manager, Alison Blunsden, at

Coronavirus (COVID-19) Edition

Coronavirus (COVID-19) Edition

The Costs and Litigation Funding Team would like to assure you that during the current ongoing measures to prevent the spread of the COVID-19, whilst we work remotely, it is business as usual at Clarion. We are able to continue to provide our full costs service to you.  The whole team (25 of us now) are well equipped to work from home and will have full access to email and paper/electronic files, as normal. Everyone will also be accessible by telephone. Our contact details can be found here.

The Court’s announcements

1. The Lord Chief Justice announced on the 18 March 2020 that telephone and video hearings are now the default position during the coronavirus outbreak and has provided guidance here.

2. Lord Chief Justice announced on the 17 March 2020 that:

“The latest guidance from government on how to respond to COVID-19 will clearly have an impact on the operation of all courts in every jurisdiction. It is not realistic to suppose that it will be business as usual in any jurisdiction, but it is of vital importance that the administration of justice does not grind to a halt.

We continue to work closely with others in the justice system, including the Ministry of Justice and HMCTS, to work through the implications of the developing medical position for the operation of the courts.

Given the rapidly evolving situation, there is an urgent need to increase the use of telephone and video technology immediately to hold remote hearings where possible. Emergency legislation is being drafted which is likely to contain clauses that expand the powers in criminal courts to use technology in a wider range of hearings. The Civil Procedure Rules and Family Procedure Rules provide for considerable flexibility.

Our immediate aim is to maintain a service to the public, ensure as many hearings in all jurisdictions can proceed and continue to deal with all urgent matters.

In all things Judicial Office Holders are advised to liaise with leadership judges and HMCTS.”

3. Liverpool County Court has released advice to litigants that most trials and hearings will remain listed, however designated civil HHJ Judge Wood QC has agreed that “any fast track or multi track trial can be removed from the list to be relisted after 1st June 2020 at the request of any party”. This does not require a consent order or application with fee. Whilst a brief explanation of the reason is necessary, the court will not require medical evidence nor will any request be refused simply because a party wants the matter to proceed. The Court expects trials to proceed only where all parties and witnesses are content for them to do so.

There have been instances where hearings in the Business and Property Courts have been adjourned, for example one hearing has been adjourned for “two months”, with a date TBC. The Judge rescheduled it out of his own initiative as a precaution.

We recommend that you check with the court if you have a trial or hearing listed within the next three months and what their current policy is.


CPR 5.3 provides that “Where any of these Rules or any Practice Direction requires a document to be signed, that requirement shall be satisfied if the signature is printed by computer or other mechanical means”. For users of Adobe, documents can be signed by selecting “Fill and Sign” in the bar at the right of the screen then selecting “Sign” at the top of the Screen. This will allow you to add a picture to use as a signature; this could be a scanned version of your signature, or a photo taken on your phone.

Please follow this link (page 2 of the pdf) to find more guidance to assist with this.


The rules for service and limitation are currently unchanged. However, parties may extend dates for compliance with Rules, and limitation amnesties, and it is likely that Courts will allow applications for extensions. Parties should bear this in mind before rejecting requests for extension out of hand. Also, the usual rules for electronic service apply, however it is likely that Courts will look favourably on applications to serve electronically and therefore parties should be sensible about accepting service electronically and only refuse if there is a genuine reason why service by electronic means cannot be accepted. At present, the Courts only accept email filing up to 10 pages, however it may be possible to arrange electronic filing with courts and practitioners should check with individual courts as many have already implemented alternative processes.

For large files, parties can agree to file and serve by other electronic means, for example using Dropbox or any other secure file-sharing software. If service is anticipated over the next three months, it would be wise to put procedures in place now, and to agree them with opponents, to enable the smooth progress of cases.

Should a Court of Protection Deputy seek court authorisation before litigation?

The recent judgment by Hilder HHJ has ruled in the three linked cases of ACC, JDJ and HPP (ACC & Ors (2020 EWCOP 9)). The judgment concerns three separate sets of proceedings where each Deputy is connected by the same firm of solicitors. For ACC and HPP that Deputy is Irwin Mitchell Trust Corporation Ltd; for JDJ, the Deputy is a partner of Irwin Mitchell LLP.

In each case, the Deputy had embarked on litigation on behalf of the Protected Party and had instructed a further department within Irwin Mitchell to conduct the litigation. The common issue in each matter is whether, and in what circumstances, the Deputy can recover from the Protected Party’s funds which have been or are likely to be incurred in legal proceedings. There was no specific provision in the orders appointing the Deputy that either did grant or exclude authority to instruct another Solicitor or conduct proceedings.

Furthermore, due to the conflict of interest, each Protected Party’s in this matter was represented by the Official Solicitor as Litigation Friend. The Public Guardian was also been joined as a party to the proceedings.

It was accepted by the Official Solicitor that obtaining legal advice and instructing the Deputy’s own firm can sometimes fall within the general authority of the Deputyship order, but the order does not give authority to litigate. They argued it was in the Protected Party’s best interests that any advice be authorised specifically by the court and any advice sought is to be tendered out to different firms.

The Deputies position was that a property and affairs standard authorisation should be understood as including legal costs in relation to contentious matters but ‘falling short of conduct of litigation’. They contended “one of the advantages” of appointing a solicitor or solicitor-owned trust corporation as Deputy is that it provides the Protected Party with “ready access” of expertise from a full-service legal firm. They further contended where circumstances demanded urgent action, a Deputy should be able to issue proceedings and seek interim relief without specific prior authorisation from the court and thereafter, to apply for authority.

Hilder HHJ explained that proceedings have arisen because the court had concerns about what the Applicants regard as a reasonable interpretation of ‘general authority’. She added that the Applicants, the Official Solicitor and the Public Guardian all sought guidance. Whilst the three cases demonstrate a clear need for further amplification of the court’s approach, she confirmed that approaching the task should be taken with caution. ‘General’ authority is not susceptible to exhaustive definition (49). She then presented a series of questions which can be found in the judgment. These are as follows:

  • What authorisation is required to conduct litigation on behalf of P? [51]
  • What about further proceedings in the Court of Protection? [52]
  • To what extent does ‘general authority’ encompass authority to take legal advice on behalf of P? [53]
  • Where is the line drawn between seeking advice and conducting litigation? [54]
  • What about urgent matters? [55]
  • How should conflicts of interest be addressed? [56]
  • What about cases where the deputy is not the instructing party? [57]
  • What about acting as litigation friend? [58]
  • What if P has capacity to give instructions for the work in question? [59]

A summary of conclusions to those questions are set out in the Appendix in the judgment, but the key observations below have caused a stir amongst professionals.

Specific authority is required to conduct litigation on behalf of the Protected Party [paragraph 51] except where the contemplated litigation is in the Court of Protection in respect of a property and affairs issue [52.4] or to seek directions in respect of a welfare issue [52.10].

Furthermore, where a Deputy has authority in respect property and affairs, such authority encompasses steps in contemplation of contentious litigation in the realm of that authority up to receiving the Letter of Response, but no further [54.4].

Hilder HHJ confirmed that ‘general authority’ of a property and affairs Deputyship order does not encompass seeking advice or other steps preliminary to litigation in respect of welfare issues; it does encompass making an application to the Court of Protection for further directions /specific authority in respect of welfare issues [54.6]. It also does not encompass steps in contemplation of an appeal against the decision of an Education, Health and Care Plan [54.8(b)].Professionals are concerned about delays at the court when obtaining this authority and the specific repercussions of this case concerning the recovery of legal costs. Hilder HHJ advised that, if circumstances arise where the protection of the Protected Party’s interests requires action to be taken so urgently that prior authority to litigate cannot reasonably be obtained, a Deputy proceeds at risk as to costs but may make a retrospective application for authority to recover costs from the Protected Party’s funds. There is no presumption that such application will be granted – each application will be considered on its merits [55].The concern of the potential conflict of interest when the Deputy instructs his own firm to carry out legal tasks is not a new issue, but one which has finally been clearly addressed in this judgment. Hilder HHJ confirmed that the Deputy must take ‘special measures’, including:

  1. the Deputy may seek prior authority [56.7(a) – (e)];
  2. the Deputy is required to seek – in a manner which is proportionate to the magnitude of the costs involved and the importance of the issue – three quotations from appropriate providers (including one from his own firm), and determine where to give instructions in the best interests of the Protected Party [paragraph 56.7(f)(i)];
  3. the Deputy must seek prior authority from the Court if the anticipated costs exceed £2 000 + VAT;
  4. the Deputy must clearly set out any legal fees incurred in the account to the Public Guardian and append the notes of the decision-making process to the return [56.7(f)(iv)].

Hilder HHJ further advised that specific authority is required to use the Protected Party’s funds to pay a third party’s legal costs, even if those costs relate to litigation for the benefit of the Protected Party [paragraph 57].Finally, if the Protected Party has capacity to give instructions for particular work, he will also have capacity to agree the costs of that work [59].

Hilder HHJ agreed that, in the three cases, the Deputies’ decisions to litigate were justified. Therefore, authority should be retrospectively granted to them. However, Deputies should not take this ruling to mean that authorisation will be granted after the event on other occasions. Judge Hilder stated that “appropriate authorisation should be secured in advance” due to the significant costs incurred in litigation (62.6). This judgment is significant in Court of Protection, providing clarity on litigation proceedings and referrals in house. It is a meaningful change for professional Deputies and we are yet to see the practical repercussions of the judgment. Where a Deputy is currently conducting litigation or will potentially be conducting litigation, we advise to apply to the Court to secure appropriate authorisation, as there is no guarantee that authorisation will be granted retrospectively. Whilst we have always recommended this, it is now essential that professionals obtain quotes from both internal and external practitioners when looking to obtain legal advice in another area of expertise, in order to justify the decision. This must be properly documented to avoid scrutiny in future. If Deputies do not adhere to the new processes in this case, there will be substantial costs repercussions.

Brian Ferry is an Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact him at and 07741 663809 or the Clarion Costs Team on 0113 246 0622.

Further changes to CoP E-Filing

Further changes to E-Filing will be introduced from 17 February 2019. 

Following a recent review of e-filing practices by the SCCO, assessed bills lodged for certificate must be tallied. In instances where the Costs Officer has not already tallied the bill, it will be the solicitor’s responsibility to do so. Documents lodged for the issue of a certificate (summary sheet, assessed bill and Final Costs Certificate) must be filed under the heading ‘Filing – Certificate Summary Sheet (COP)’ and not ‘Filing – Acceptance of Provisionally Assessed Bill’ or any other option. Please note these documents must be filed as separate documents. Pending approval, the SCCO hope to circulate a basic guide on lodging documents for certificate in the near future. These changes are introduced to streamline the e-filing process.

The SCCO don’t require every entry in the bill to be tallied but simply the allowed figures written on the bill summary page situated in the middle of the bill of costs, detailing the profit costs, VAT, disbursements etc. The SCCO will eventually be looking to get rid of the separate bill summary sheet which will prevent duplication, but for now, both are required.

If you have any queries or would like to propose topics for future blogs by Clarion, please contact Stephanie Kaye at or call on 0113 3363402.

The Precedent T – a new Costs Management precedent, watch this space!

The CPRC have released minutes of their latest meeting.  The committee had been asked to consider proposals and options relating to revisions to CPR r3.15 and PD 3E.

Discussions centred around whether the no retrospective costs budgeting rule applies and how it works within the budget variation. It was mooted that a rule change which sets out the factors that the court should take into account may be appropriate.  Proposals were also made regarding a new draft precedent T (in excel format), its intention being to set out the particulars of the proposed budget variation.

It was recognised that there were varying practices currently in play when applying to revise a budget, and  because of that it was proposed that a solution would be to codify the procedure. 

The committee remained alive to the fact that any rule change should not open up parties to attempt to budget repair. More detail regarding the importance of revising the budget can be found in our previous blog here.

The subjective topic of what is a ‘”significant development” was discussed. Currently PD3E paragraph 7.6 provides that budget variations are warranted if a significant development occurs. It was considered critical that the significant development was explained early in the process to avoid any attempt to budget repair.

The committee agreed the Precedent T in principle. It was agreed to re-draft their proposals which cater for ‘retrospective costs budgeting’. We should also see some further guidance which will add clarity between ‘budget variations’ and ‘ood reason to depart from the budget’.

Sue Fox is a Senior Associate and the Head of the Costs Management team in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact her at and 0113 336 3389, or the Clarion Costs Team on 0113 246 0622.

Court of Appeal finds approved costs budget irrelevant when indemnity basis awarded

The Court of Appeal decision in Lejonvarn v Burgess & Anor [2020] EWCA Civ 114 has determined that an approved costs budget is irrelevant where indemnity costs are ordered.

The appellant’s case was that whilst there was an approved costs budget of £415,000, her actual costs were £724,265.63. To allow this would effectively reward her for failing to keep within the budget. Interestingly the budget was only partially costs managed and therefore was subject to change in certain phases in any event.

Lord Justice Coulson acknowledged The figure produced by an approved cost budget mechanism (CPR r.3.12-r.3.18) is a different thing to the final assessment of costs following the trial. The former is prospective; the latter is retrospective. True it is that, in many cases, the approved costs budget will be the appropriate starting point for the final costs assessment. But that does not detract from the underlying proposition that they are different figures produced by different considerations with different purposes” and in any event “If there is an order for indemnity costs, then prima facie any approved budget becomes irrelevant.

Although Lord Justice Coulson was not persuaded that there was an approved budget in this particular case he made it clear that costs assessed on an indemnity basis are not constrained by an approved costs budget. He even went so far as to say that his obiter comments in the cases of Elvanite and Bank of Ireland v Watts which suggested the contrary, should be disregarded.

Anna Lockyer is an Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact her at and 0113 288 5619, or the Clarion Costs Team on 0113 246 0622

Is a Court Fee Recoverable Inter Partes when a Fee Remission was suitable?

The issue of whether a Court Fee is recoverable by the recieving party, when a fee remission was available, is a contentious one. However, in the recent case of Ivanoy v Lubble which was an appeal to a Circuit Judge, guidance has been provided.

This case was a low value Personal Injury matter which settled for £6,500 and the Court Fee in dispute was the Hearing Fee. The Defendant argued that the Claimant was eligible for a Fee Remission and so they should not have to pay the Court Fee as part of the Claimant’s costs.

There was a reported County Court case last year, Stoney v Allianz (2019), which had similar facts and the Court Fee was not recoverable as part of the Claimant’s costs.

In the present case, the Circuit Judge considered the issues and identified that under CPR 44.3 the burden of proof on a standard basis assessment, which this case was subject to, lay with the Claimant to prove that the costs incurred were reasonable and proportionate.

It was also confirmed that the Fee Remission scheme was designed to allow litigants of modest means to access justice and that Claimant’s could not use an argument that the scheme was unpredictable or a burden to the as a reason for not utilising the scheme.

However, the core argument centred around whether it was reasonable to expect the Claimant to use the scheme or whether this places a burden on the taxpayer which is unreasonable. This argument relates to one of public policy and whether the public purse or the Defendant bears the Court Fee. The Circuit Judge considered the relevant caselaw in relation to this issue along with CPR 44.3 and CPR 44.4; it was confirmed that “there are strong public policy grounds for saying that it is not unreasonable for a Claimant to preserve the public purse and direct the cost of wrongdoing on the tortfeasor”.

As such the Circuit Judge confirmed that it was not unreasonable for the Claimant to pass on the Court Fee to the Defendant rather than relying on the public purse by virtue of the Fee Remission scheme, subject to the Court being satisfied that the Court Fee was incurred by the Claimant.

This blog was written by Matthew Waring who is an Associate in the Costs and Litigation Funding Team at Clarion. Matthew can be contacted on 0113 288 5639 or at