Tag: #clarioncosts

SCCO Updates Filing Guidance for Court of Protection Bills

Leah MorrisLeave a comment

The Senior Courts Costs Office (SCCO) has earlier this week issued revised guidance on filing supporting papers for Court of Protection bills, coming into effect on 20 April 2026. These updates aim to streamline the assessment process and improve efficiency for both practitioners and Costs Officers.

The SCCO continues to support two methods for submitting supporting documents: digital bundles provided via the Document Upload Centre (DUC) and physical files of papers sent in the post or DX. A summary of the latest guidance is set out below.

1) Digital Bundles via the Document Upload Centre (DUC)

The Document Upload Centre (DUC) allows users to submit supporting papers electronically and is the SCCO’s preferred method, provided submissions follow the required format.

It is important to note:

  • The DUC is only for supporting documents
  • Key documents, including the bill of costs, N258B and court orders, must still be filed via CE-File in the usual way
  • To access the DUC, users must request a link by emailing the SCCO

In terms of formatting, bundles must be in PDF format only. File names should include the SCCO reference number, the Protected Party’s surname, and the billing period or case type (for example, statutory will or property sale). The SCCO also find it helpful if an indication of the bill type is included within the file name, such as general management with the relevant period dates, so it is recommended that this is included.

Where possible, a single bundle should be submitted. If multiple files are necessary, these should be clearly labelled with the relevant date ranges rather than uploading individual documents separately.

Documents must be arranged in chronological order (oldest first), with key documents placed at the beginning of the bundle. These include:

  • The OPG102 and OPG105
  • Client care letter
  • Disbursement evidence
  • Counsel fee invoices

The level of detail within documents remains important. Emails and file notes should clearly show dates and times, with correspondence identifying both sender and recipient. File and attendance notes must also record the fee earner completing the work and the time claimed.

To assist Costs Officers in locating documents quickly, the SCCO recommend:

  • Including a detailed index or bookmarks with clear dates and descriptions so items can be easily identified and cross-referenced against the bill of costs
  • Adding hyperlinks to documents where possible
  • Avoiding duplication of documents or email chains

In terms of timing:

  • For existing cases: upload at the same time as filing the bill (once the SCCO reference number is available)
  • For new cases: upload after receiving confirmation of the SCCO reference number (e.g. SC-2025-COP-001234)

2) Physical Paper Filing

Firms can still submit hard copy bundles by post. While digital filing is encouraged, it is not mandatory.

If submitting papers physically, they should be sent to:

Senior Courts Costs Office
Thomas More Building
Royal Courts of Justice
Strand
London
WC2A 2LL
DX: 44454 Strand

Many of the same principles apply to paper bundles as to electronic ones. Files should be clearly labelled with the SCCO reference number, the Protected Party’s name and the billing period or case type, and documents should be organised in chronological order.

Key documents should be placed at the front of the bundle (or the first bundle if multiple are submitted), including:

  • The OPG102 and OPG105
  • Client care letter
  • Disbursement evidence
  • Counsel fee invoices
  • A copy of the e-filing acceptance notice, including return details
  • Where multiple boxes or bundles are required:
  • Label them sequentially (e.g. Box 1 of 2)
  • Arrange documents chronologically across all boxes and bundles
  • In terms of timing:
  • Papers should be sent as soon as possible after CE-File acceptance
  • They must be submitted within 28 days

Mandatory Filing Notification

Each time a bill is submitted via CE-File, you must clearly state how you intend to file supporting documents. This should be included in the “filing comments” by confirming either ‘paper’ or ‘DUC’. Failure to include this information may result in the filing being rejected.

Final Thoughts

These updates from the SCCO reflect a continued move toward digital efficiency while still accommodating traditional filing methods.

For practitioners, the key takeaway is simple: clarity, organisation, and compliance with formatting rules are essential. Adopting the DUC where possible, and doing so correctly, will help avoid delays and ensure a smoother assessment process, particularly given the continued delays and significant turnaround time for receipt of assessed bills, which remains in excess of a year at present.

For further guidance or to request DUC access, contact the SCCO directly at scco@justice.gov.uk.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.

When High-Value Claims Still Require Budgeting: Garry White & Ors v Uber London Limited & Ors

Katie SpencerLeave a comment

The Claim

In the case of Garry White & Ors v Uber London Limited & Ors, approximately 13,000 London black cab drivers issued group proceedings against companies within the Uber group, claiming losses of around £199 million. A further claim, valued at approximately £141 million, was brought by the assignee of two private hire operators, Kabbee and Iride.

Although the total value of the litigation is around £340 million, each driver’s individual claim is relatively modest (circa £15,000), making group litigation a proportionate approach.

The claims arise from allegations that Uber unlawfully obtained a private hire vehicle operator licence by misrepresenting its operating model. It is said that this enabled Uber to compete directly with licensed black cab drivers while undercutting regulated fares, causing substantial financial loss between 2012 and March 2018.

The Preliminary Limitation Issue

Uber denies liability and argues that the claims were issued outside the six-year limitation period.

The Claimants rely on Section 32 of the Limitation Act 1980, arguing that time did not begin to run until they could reasonably have discovered the relevant facts, which they say occurred in June 2018 following a licensing appeal hearing.

The court has ordered that limitation be determined at a standalone five-day preliminary trial. A representative sample of 20 Claimants (10 chosen by each side) will be used to assess when sufficient knowledge arose. If the Defendants succeed, the litigation may conclude at that stage.

The Costs Budgeting Decision

A significant procedural issue to be determined was whether costs budgeting should apply.

Although claims valued at £10 million or more are ordinarily excluded from the costs management regime, the court retains discretion. The Defendants sought to disapply budgeting, relying on the overall high value of the claim, the existence of litigation funding and ATE insurance, and the alleged additional burden budgeting would impose.

The Claimants argued that, despite the aggregate value, the case is fundamentally a mass claim by individuals of limited means. They required clarity regarding potential adverse costs exposure and future funding requirements.

The Court agreed with the Claimants. While acknowledging that very high-value claims are generally unsuitable for costs management, this case was considered materially different. The modest individual claims and group structure justified greater costs oversight and transparency.

Why This Matters

This decision reinforces that the £10 million threshold is not decisive. Courts will look beyond the headline value of proceedings and consider the nature of the parties and the practical impact of costs exposure.

In large-scale group actions involving individuals with limited financial resources, costs budgeting may be viewed as an important tool to promote fairness, proportionality and effective case management and there are steps you can take ahead of the first CMC if you consider a CMO to be useful in your case.

Katie Spencer is a Paralegal in the Costs and Litigation Funding Department at Clarion Solicitors and can be contacted on 07741 988 925 or at Katie.Spencer@clarionsolicitors.com.

Understanding the Role of Each Grade Fee Earner in Court of Protection: A Breakdown of Responsibilities

Leah MorrisLeave a comment

Navigating the complexities of Court of Protection requires a clear understanding of the roles and responsibilities of the various fee earners involved in the process. From apprentices and paralegals through to senior partners, each grade of fee earner plays a vital part in managing and overseeing costs, ensuring that both legal obligations and client needs are met efficiently. In this blog, we will explore the specific tasks and duties that correspond to each grade of fee earner, offering insight into how their work contributes to the overall success of Court of Protection cases and the accurate management of associated costs.

Grade D

Grade D fee earners refer to trainee solicitors, paralegals, and other fee earners, such as administrative assistants. These fee earners are not qualified lawyers.

Tasks commonly undertaken by Grade D fee earners include the following:

  • Arranging payments
  • Reviewing invoices
  • Considering incoming correspondence
  • Liaising with the DWP in relation to benefits
  • Preparing standard forms, such as banking forms
  • Amending standing orders
  • Considering bank statements
  • Attending the property for insurance visits.

These tasks are undertaken by Grade D fee earners to assist with the Protected Party’s daily life. Grade D fee earners will often be delegated tasks by more senior fee earners or seek instructions to reduce the costs incurred to the Protected Party. The tasks carried out usually require minimal specialist knowledge and consist of simpler duties to enable the day-to-day management of the case.

Grade C

Grade C fee earners consist of solicitors or legal executives and fee earners of equivalent experience. These fee earners are usually qualified, however, senior paralegals can also be categorised as Grade C based on extensive Court of Protection experience.

Tasks commonly undertaken by Grade C fee earners include the following:

  • Preparing the annual Deputyship report
  • Preparing benefits forms
  • Considering the insurance position
  • Reviewing care plans
  • Drafting COP forms

Grade C fee earners usually have regular day-to-day conduct of the file and will complete tasks to reduce the costs incurred to the Protected Party. However, these tasks may be slightly more complex and require further specialist knowledge than unqualified persons (Grade D) to enable completion. In practice, Grade C fee earners are often the backbone of the day-to-day management of the case. They ensure that routine matters such as reporting, correspondence, and documentation are handled effectively while providing intermediate-level legal support. Their ability to balance both practical and legal considerations helps keep costs manageable while still meeting legal standards.

Grade B

Grade B fee earners include solicitors and legal executives who have been qualified for a minimum of four years.

Tasks commonly undertaken by Grade B fee earners include the following:

  • Liaising with P and their family as the main point of contact
  • Preparing budgets
  • Preparing Witness Statements
  • Liaising with the care home regarding P
  • Making simpler best interests decisions

Claiming Grade B in cases is challenging due to the complexity of tasks to be undertaken, requiring extensive legal knowledge that would necessitate a more senior fee earner than Grade D or C. However, the tasks are not quite complex enough to warrant the expertise of a Grade A fee earner, such as the Deputy. As there is no exhaustive list of specific tasks, it can be difficult to justify why a Grade B fee earner was required to conduct the work in the place of a lower grade fee earner. Grade B fee earners take on a supervisory role in cases, often overseeing the more detailed aspects of the case while ensuring compliance with Court of Protection requirements. Their work bridges the gap between the more routine tasks carried out by Grade C or D fee earners and the high-level strategic oversight of a Grade A fee earner.

Grade A

Grade A fee earners consist of solicitors and legal executives who have been qualified for over 8 years.

Tasks commonly undertaken by Grade A fee earners include the following:

  • Certifying and signing documents
  • Approving payments
  • Making complex and costly best interests decisions
  • Delegating tasks
  • Attending on P for the annual Deputy visit
  • Attending on the IFA
  • Reviewing investment and portfolio reports

Grade A fee earners have minimal overall day-to-day navigation of the matter due to the higher hourly rate charged and therefore the additional costs that would be incurred to the Protected Party. This is because they are focused on providing specialised expertise or high-level legal advice rather than managing the day-to-day administrative tasks and procedural aspects of a case. Their role is usually more strategic, handling complex legal issues and ensuring that the case aligns with broader legal principles. In practice, Grade A fee earners are responsible for making decisions with long-term implications, including the management of assets, complex best interests decisions, and compliance with legal requirements. As a result, the administrative tasks, client communication and file management responsibilities often fall to more junior staff, such as Grade C fee earners or paralegals, who are responsible for maintaining the case on a practical level. This division allows Grade A fee earners to focus on their area of expertise while delegating routine tasks to those with less specialised experience.

In conclusion, understanding the specific responsibilities of each grade fee earner in Court of Protection cases is essential for both managing costs effectively and ensuring the protection and care of vulnerable individuals. From the foundational tasks handled by junior fee earners to the more complex responsibilities undertaken by senior professionals, each role plays a vital part in maintaining the smooth operation of the case. By clearly outlining the tasks and responsibilities across different grades, legal teams can work more efficiently, ensuring that every aspect of the case is addressed with the appropriate level of expertise. This collaborative approach helps to balance both legal and financial obligations, ultimately benefiting the clients who rely on the Court of Protection system for support and guidance.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.

From Millions to Nil: The Stark Warning in Winros v Global Energy

ujjainimistryLeave a comment

In a judgment handed down on 19 December 2025 in the case of The Winros Partnership v Global Energy Horizons Corporation [2025] EWHC 3362 (Ch) (19 December 2025), Mr Justice Marcus Smith upheld a decision of the Senior Costs Judge Gordon-Saker in an assessment under the Solicitors Act 1974 to assess bills totalling circa £6 million at nil. The decision focusses on the circumstances in which a solicitor can terminate a CFA and preserve the right to claim fees from a client.

 

Background

The dispute arose from a long-running dispute between The Winros Partnership (formerly Rosenblatt Solicitors) and their former client, Global Energy Horizons Corporation. Winros had acted for Global Energy under a series of CFAs, which typically provided that the solicitor was only paid only in the event case succeeded.

However, the relationship deteriorated before any success was achieved under the last CFA. Winros terminated the retainer by accepting Global Energy’s repudiatory breach rather than relying on an express termination clause in the CFA.

After the retainer was terminated, Winros delivered a bill for circa £6 million, arguing it should be paid for the work they had done up to the point of termination. Winros also issued a claim in the Chancery Division for damages in relation to the termination of the CFA. Global Energy subsequently asked the court to assess the bill under Section 70 of the Solicitors Act 1974and the claim in the Chancery division was stayed pending the outcome of the assessment.

What the High Court Decided

On appeal from the Senior Costs Judge’s decision in the Senior Courts Costs Office, Mr Justice Marcus Smith upheld the assessment that Winros was not entitled to any payment and that the bill was to be assessed at nil.

Winros chose to terminate the CFA by accepting Global Energy’s repudiatory breach rather than invoking the contractual mechanism in clause 14 (which would have entitled it to fees for work done). Choosing a common law termination meant the contractual protections for payment on termination did not apply.

Furthermore, Winros argued they should have been paid on a quantum meruit basis, which is a restitutionary claim for the value of work done. However, the Court agreed with the lower court that as the CFA had already clearly set out the consequences of early termination, there was no “total failure of basis” that would justify unjust enrichment. Simply put, the contract already articulated what was to happen, leaving no gap for restitution to fill.

The Judge also commented (albeit obiter) that the detailed assessment procedure under the Solicitors Act 1974 was a regulatory process for reviewing bills, not a forum to decide standalone restitutionary claims. Those should be pursued in separate proceedings if genuinely arguable. Therefore, a detailed assessment proceeding was not the appropriate course of action.

The decision highlights the fact that courts will strictly uphold the terms of a carefully drafted CFA, particularly clear provisions on termination and payment that allocate risk with certainty—even if that results in a solicitor going unpaid. It highlights the critical importance of how a solicitor terminates a retainer, as terminating under contract versus at common law can dramatically affect entitlement to fees, with the wrong approach potentially forfeiting enforceable payment rights.

Overall, the judgment serves as a reminder that in CFAs, both procedural compliance and substantive terms are decisive in determining financial outcomes.

Ujjaini Mistry is a Paralegal in the Civil and Commercial Costs Team at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com.

PI Trusts and Statutory Care Funding: Clarity for Deputies

Ella WilkinsonLeave a comment

The High Court’s recent decision in CGT, R (On the Application Of) v West Sussex County Council [2026] EWHC 293 (Admin) provides important clarity for deputies managing personal injury trusts. The case arose from a judicial review challenge to the local authority’s decision to refuse to fund CGT’s care needs from July 2024 onwards and to seek reimbursement of funding provided since 2020.

By way of background, CGT was born in 1994 and suffered a catastrophic brain injury at around three months old, leaving him with severe cognitive impairment, visual impairment, epilepsy and other lifelong disabilities. He requires daily care and has lived in supported accommodation since 2013. He lacks capacity to manage his financial affairs, and his mother was appointed as his property and financial affairs deputy by the Court of Protection in 2011.

In 2012, the Criminal Injuries Compensation Authority (CICA) awarded him more than £3.5 million, including over £2.6 million specifically for future care. The award was conditional on the funds being placed into a discretionary trust for his benefit, with the Official Solicitor acting as trustee.

The local authority later refused to continue funding CGT’s care, arguing that capital in the personal injury trust counted as available resources and that ongoing public funding would amount to double recovery. The judicial review succeeded. The court rejected both arguments, holding that the decisions to cease funding and demand repayment were unlawful. It also confirmed that capital held in a properly constituted personal injury trust must be disregarded in full when assessing care funding under the Care Act 2014 and surrounding regulations.

For professional deputies, the implications are practical. A trust established from personal injury compensation does not reduce P’s statutory entitlement to care funding, even where the trust contains sums identified for future care. Deputies can manage P’s affairs in the knowledge that the existence of trust capital should not trigger withdrawal of public funding or retrospective recovery.

The judgment also narrows the reach of double recovery arguments in this context. Local authorities cannot rely on that principle to refuse or claw back statutory care funding. If duplication concerns are to be addressed, they belong at the point of settlement, in the structure of the award, or through Court of Protection oversight and not within the eligibility assessment itself. Deputies should ensure that trust documentation reflects P’s needs and that any undertakings or arrangements from prior deputies are understood, but should not assume those arrangements alter the statutory framework.

The decision is also a reminder of process. Trust capital is disregarded, but local authorities remain entitled to request information about the financial position. Deputies should provide what is necessary and accurate, without inviting a reinterpretation of the statutory test.

In practical terms, the judgment reinforces the deputy’s role in safeguarding compensation awards while preserving access to statutory care funding. Properly structured personal injury trusts remain effective protection, and local authority discretion does not displace the regulations.

If you have any questions, please get in touch with Ella Wilkinson (Ella.Wilkinson@clarionsolicitors.com) who is an Associate in the Costs & Litigation Funding Team at Clarion Solicitors, specialising in Court of Protection costs.

No Costs Recovery in Failed Deputyship Case Where P Had Capacity

maidiedeightonLeave a comment

The Court of Protection has determined that it should not make a costs order against a Protected Party (P) who was the subject of a failed application by a professional Deputy to be appointed to handle his affairs.

This decision offers some important guidance on costs in Deputyship Applications, particularly when an application ultimately fails because the person concerned is found to have capacity.

Background

  • A professional Deputy applied to be appointed as property and affairs Deputy for a vulnerable adult. However, a section 49 report later confirmed that P did, in fact, have capacity.
  • P sustained frontal lobe damage more than 20 years ago following an assault, which has a mild impact on his executive functioning, compounded by excessive alcohol use. The Deputy made a COP1 application seeking appointment as a professional deputy for P after a referral by City of York Council, who believed P lacked capacity to manage his affairs. But a later medical report found he had the capacity to manage his property and affairs.
  • The Deputy appealed against the decision made by the District Judge who dismissed the application and made no order for costs, meaning the Deputy could not recover any of their expenses.

The Appeal

Harris J allowed the appeal in part, finding that the District Judge had misapplied the law on costs. Harris J found that the District Judge had made a mistake on costs by failing to apply the general rule that in property and affairs Deputyship applications costs shall be paid by P or charged to P’s estate (rule 19.2, Court of Protection Rules 2017) (SI 2017/1035)) (COP 2017). The District Judge had also failed to consider the grounds for departing from this with reference to the factors set out in rule 19.5 of the COP 2017.

Reassessing the Costs Position

  • Harris J reconsidered the matter from the start. While confirming that the general rule should be the initial benchmark, the Judge stressed that it is not absolute. There is a strong public interest in bringing appropriate applications before the Court of Protection, but that alone does not guarantee cost recovery for applicants.
  • Harris J concluded that as a matter of natural justice, “it may appear perverse that P should pay the costs of the Deputy – who is a complete stranger to him – for an application he did not invite, always opposed, had no choice but to respond to, and ultimately was successful in defending.

In reaching the decision, the judge focused on two key factors:

1.    P having no choice but to respond to litigation he did not invite but being successful in defending the application and, as a vulnerable adult, having no way to protect himself against any costs exposure.

2.    The professional Deputy choosing to bring and pursue the application and being in a position to assess litigation risks.

Outcome

  • Balancing these elements, the court concluded it was fair and just to depart from the general rule.
  • Harris J concluded that the application to be appointed as Deputy ultimately failed and it was the responsibility of the professional Deputy to mitigate any costs exposure.
  • Where an application has been made by a professional Deputy on referral from a local authority, the court suggested that the local authority could consider assuming the costs burden through a contractual arrangement with the Deputy, instead of imposing the burden on vulnerable adults.
  • This costs decision shows that courts are prepared to depart from the general rule on costs where there is good reason to do so.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.

Does a paying party have to pay VAT on costs if an insurer is no longer trading?

ujjainimistryLeave a comment

The case of Shmuel Moller & Ors v One Touch Solution Limited & Anor [2026] was a routine summary assessment of costs arising from an interlocutory hearing where the Court was required to undertake a focused examination of VAT recoverability where the receiving party was in liquidation.

Background information

The proceedings arose out of a commercial claim brought by the Claimants against One Touch Solution Limited and its insurer, Hiscox Insurance Company Limited. During the litigation, the Claimants were granted permission to amend their statement of case.

The Court ordered that the Claimants should pay the Defendants’ reasonable costs of responding to the amendment, including the costs of preparing an amended defence, such costs to be assessed if not agreed.

By the time the costs issue arose, One Touch Solution Limited had entered creditors’ voluntary liquidation. This gave rise to a dispute as to whether VAT on the Defendants’ legal costs was recoverable as part of the costs order. The Claimants argued that VAT should not be included because it was recoverable by the Defendant (or its estate). The Defendants contended that liquidation meant VAT was irrecoverable and therefore payable by the Claimants.

The Court was therefore required to determine, in the context of a costs assessment, whether VAT on the relevant legal services was recoverable where the receiving party was a company in liquidation, and whether any additional costs should be awarded in relation to the VAT dispute itself.

The Parties’ arguments

The Claimants argued that VAT was only recoverable if the receiving party cannot recover it as input tax from HMRC and that the First Defendant had been VAT-registered at the relevant time legal services were supplied. They also argued that the liquidation did not change the VAT position; insolvency and VAT deregistration on liquidation does not automatically render VAT irrecoverable.

Furthermore, they argued that in respect of the First Defendant’s costs that were funded by the insurer, the insurer was not the entity that incurred the legal services and had no independent right to recover VAT as costs.

The Defendants argued that VAT was irrecoverable and therefore recoverable from the Claimants as part of the costs order. They stated that the liquidation rendered VAT irrecoverable and that VAT could not be recovered in an ordinary way.

Conclusion

The Court held that the First Defendant’s liquidators can recover VAT by filing appropriate VAT returns, meaning neither Defendant has suffered a recoverable loss for VAT in their costs. The Court’s decision was based on the wording of the Regulation 111(5) of the Value Added Tax Regulations 1995. The wording clearly supported the Claimant’s position, and it was held that the Defendants’ position flew in the face of the regulation and was unexplained.

The Claimants sought £1,000 (excluding VAT) for the costs of preparing submissions on the VAT issue. The court noted that the issue had been fully argued in correspondence, the Claimants succeeded on the point, and the Defendants could have avoided further costs by addressing it clearly at the earlier hearing.

Although the Court did not hear submissions from the Defendants on these costs, it found that the Claimants were clearly successful, that the usual CPR Part 44 costs principles applied, and that the amount claimed was reasonable and proportionate.

Accordingly, the Court ordered the Defendants to pay the Claimants’ costs of £1,000, subject to the Defendants’ right to apply in writing to set aside or vary the order, with any such application to be determined on the papers and with modest further costs expected.

Key Takeaways

Although the decision in Moller is not groundbreaking, it is a timely reminder that insolvency does not simplify VAT issues—it often complicates them. VAT recoverability turns on tax entitlement, not litigation status and insurers cannot assume VAT will be recoverable from the opposing party.

VAT on costs remains a technical issue requiring proper analysis. Treating it as an afterthought can prove an expensive mistake.

The Court rejected the common assumption that where a company is in liquidation, VAT on its legal costs must be irrecoverable and therefore payable by the opponent as part of a costs order.

Therefore, the key principle remains unchanged: VAT is only recoverable as part of costs if the receiving party cannot recover it as input tax. Liquidation or VAT deregistration does not, without more, make VAT irrecoverable.

Ujjaini Mistry is a Paralegal in the Civil and Commercial Costs Team at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com.

The Government’s measures to clarify the uncertainties surrounding LFAs following the 2023 PACCAR ruling

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The Minister of State for Justice, Sarah Sackman KC MP, announced that the government will take action to limit uncertainties surrounding third-party litigation funding agreements (LFAs) following the 2023 Supreme Court ruling in PACCAR. The government will also implement proportionate regulation of LFAs, in line with the Civil Justice Council’s (CJC) recommendations.

Further background information regarding the ruling in PACCAR can be found in Anna Lockyer’s blog post here.

The Government’s next steps

The Supreme Court Judgment in PACCAR created uncertainty around the validity and enforceability of LFAs. The government has now announced that legislation will be introduced to clarify that LFAs are not damages based agreements. They have said this will be implemented with “prospective effect” (the CJC recommendation was for prospective and retrospective effect). In doing so the government hopes this will reassure funders that LFAs can continue to be used to fund cases, the government recognising that LFAs can enable individuals to bring complex claims against better-resourced organisations and that the uncertainty post-PACCAR might be preventing claimants from pursuing claims.

In addition, proportionate regulation of LFAs will be introduced, to improve transparency and fairness for claimants. Legislation will be introduced when “parliamentary time allows”. Once these two changes have been implemented, the Civil Justice Council’s wider litigation funding recommendations will be considered, and further changes will be announced.

Conclusion

When it came into office the new government made clear it would wait for the CJC report before taking decisions on any legislation concerning litigation funding. While we must still wait to see the government’s proposed timetable and the text of draft legislation, the government has said its priority is to remove the uncertainty introduced by PACCAR and ensure the litigation funding sector works fairly and efficiently for all.

Angela Nako is a Paralegal in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com

Understanding the consequences of serving a defective bill of costs

ujjainimistryLeave a comment

In Hyder -v-Aidat-Sarran [2024] EWHC 3686 (SCCO), Deputy Costs Judge Roy KC dealt with two applications: from the Claimant for relief from sanctions for late service of the bill of costs; and from the Defendants who applied under CPR 44.11 to strike out the Claimant’s claim for costs due to serious and repeated failures to comply with rules, practice directions and Court orders and/or unreasonable or improper conduct during the detailed assessment proceedings.

Background Information

The applications were made against a background of procedural failures by the Claimant. A defective bill of costs, which had been prepared in the wrong format, had been served late. The Defendants served Points of Dispute in response to the defective bill, which highlighted numerous other failings, including a failure to certify and claims for costs to which the Claimant was not entitled. In the absence of Replies to Points of Dispute, the Defendants applied for an Unless Order.

As there was no serious dispute that the Claimant’s bill was defective, and on the strength of assurances given by the Claimant that an amended bill of costs had been prepared which would be served at the same time as the request for detailed assessment was filed, an Unless Order was made by consent. The Unless Order required the Claimant to file a request for detailed assessment hearing by 13 August 2024. In default of which the Claimant’s costs would be disallowed, and the Claimant would be required to pay the Defendants’ costs of the detailed assessment proceedings.

In the event, the Claimant filed the bill of costs together with a request for detailed assessment 1 day late by email, notwithstanding that the use of CE-File is compulsory in the Senior Court Costs Office. Although by this time the bill was in the correct format, none of the previously identified defects had been rectified and the filed bill introduced further defects in addition to those previously identified.

The Claimant was therefore required to apply for relief from sanctions. The Defendants opposed the application on grounds that the bill was so severely defective the Claimant could not properly be said to have belatedly complied with the Unless Order and they also applied for an order to strike out the claim for costs under CPR Rule 44.11, in any event.

The Judge dealt with each application in turn.

  1. The Claimant’s application for a relief from sanctions

The Judge referred to the Denton Principles, which is a three stage test used to guide the Court when deciding applications for a relief from sanctions under CPR 3.9.

Stage 1 was considered in relation to whether the service of a defective bill a day late was non-compliance with the order and whether that was a serious or significant breach.

The Judge stated that he was ‘ultimately against’ the Defendants submissions that the bill was so defective it should not be described as complying with the order because the bill was served within the meaning of the order in that the Unless Order did not specify a requirement to serve a fully compliant bill. Relief from sanctions was therefore granted.

  1. The Defendants’ application under CPR 44.11 to strike out the Claimant’s claim for costs

CPR 44.11(1) sets out the Court’s powers to address misconduct, which may apply where:

(a) a party or their legal representative fails to comply with a rule; or

(b) a party’s or legal representative’s conduct is unreasonable or improper.

If either limb of CPR Rule 44.11 are met, then the Court may apply one of the sanctions in CPR 44.11(2), which are:

  • disallow all or part of the costs which are being assessed; or
  • or order the party at fault or that party’s legal representative to pay costs which they have caused another party to incur.

The Judge found that both limbs of CPR 44.11(a) and (b) were made out. He found that in addition to the defects identified in the original bill, the Claimant had served an electronic bill which failed to comply with most of the requirements of electronic bills in Practice Direction 47.

The Judge agreed there were multiple significant failures within the bill, with some more serious than others. He also found it ”beyond belief” that the defects were not rectified in the electronic bill, despite being identified in the Points of Dispute. The Claimant also failed to serve evidence to explain or address the failings and failed to apologise for (or even acknowledge any of the failings) before the hearing. This was described as “serious and troubling lack of insight and contrition on behalf of the Claimant’s solicitors.”

It was also held that it was not appropriate for the Claimant’s solicitor to blame their costs draftsman for the errors on the basis that the costs draftsman is the solicitor’s agent, and the solicitor is vicariously liable for the draftsman’s failings (Gempride v Bamrah [2018] EWCA Civ 1367). The solicitor also had direct supervisory responsibilities which they did not fulfil in relation to reviewing and checking the bills of costs.

The Judge therefore found that “there have been multiple compound breaches. They have been serious. They have been persistent. They are unexplained, and they are inexcusable for the most part.”

It was then left to the Judge to decide upon the severity of the sanction to impose. Although a complete strike out of the claim for costs was possible, the Judge decided against that on grounds that the Court of Appeal had found that sanction to be draconian, even in cases of serious misconduct. Instead, the Judge recognised that a severe sanction was warranted and Ordered that the Claimant’s assessed costs would be subject to a 75% reduction.

Ujjaini Mistry is a Paralegal in the Civil and Commercial Costs Team at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com

Actor ordered to pay Guardian News indemnity costs and a £3 million payment on account of costs

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Mrs Justice Steyn in Clarke v Guardian News & Media Ltd [2025] EWHC 2575 (KB) examined the issue of costs following the dismissal of actor, Noel Clarke’s, defamation and data protection claims against the Defendant newspaper. To determine the appropriate costs, the judgment addressed the Claimant’s conduct, the costs approved in the costs budget and the various “costs reserved” orders made during the proceedings. Whether the Claimant should make a payment on account of the costs pending detailed assessment and the amount of the payment is also considered in detail.

Background

The Defendant in this case had succeeded on the defences to defamation and the issue of serious harm in respect of 8 articles published about the Claimant actor. The Court determined that the Defendant had been wholly successful and therefore entitled to an order that the Claimant pays costs subject to detailed assessment.

Indemnity Basis Costs

With regards to the basis of assessment, the Judge referred to the legal principles in relation to exercising the court’s discretion to award costs on the indemnity basis summarised within the White Book at 44.3.8 to 44.3.10. The Judge cited the importance of the Court having regard to all the circumstances of the case and the conduct of the Claimant being a key element of this.

The Judge found that the Claimant’s pleaded case and the evidence at trial contained many statements that the Judge found to be untrue and dishonest. Mrs Justice Steyn referred to Esure Services Limited v Quarcoo [2009] EWCA Civ 595, which concluded that if a court finds a claim to have been brought or maintained dishonestly then “it will be normal for a court to seek to mark its disapproval” by making an order for indemnity costs.

Further, the Judge made reference to the Claimant making “wholly unfounded allegations of dishonesty against three professional journalists” and aired those publicly.

It was also highlighted that an order for indemnity costs does not require the Defendant to show that the Claimant’s unreasonable conduct increased its costs. Consequently, the Judge ordered the Claimant to pay the Defendant’s costs of the claim to be subject to detailed assessment on the indemnity basis, if not agreed.

Payment on Account of Costs

When addressing the issue regarding a payment on account of costs, the Judge referred to CPR 44.2(8) which states: “Where the court orders a party to pay costs subject to detailed assessment, it will order that party to pay a reasonable sum on account of costs unless there is good reason not to do so.”

The Judge had regard for the way the claim had been pursued by the Claimant and the fact that costs would be assessed on an indemnity basis. The Judge also took into account the Defendant’s Precedent H of July 2024 where the total of the Defendant’s budgeted costs and incurred costs were £3,184,519.98, not including the estimated costs of disclosure, which were left to be agreed or subject to detailed assessment. This figure also did not include costs in respect of the Trial Preparation and Trial phases.

The Judge concluded that it was reasonable for a payment in the sum of £3 million to be sought by the Defendant.

Additional Costs Points

“Costs reserved” orders were made during the proceedings, regarding the Defendant’s application for an interim non-disclosure order and an Amendment and Joinder Application. The Judge concluded that the Defendant was entitled to these costs.

The Claimant asked the Judge to stay the costs order pending a potential application for permission to appeal. This was rejected as the Claimant already had more than the usual time to consider any grounds to seek leave to appeal and the Judge was not prepared to provide an extension of time to seek permission to appeal.

Conclusion

At paragraph 39 of the judgment, Mrs Justice Steyn articulates the reasoning behind her decision as she states: “Bearing in mind that the sum claimed by the Defendant on detailed assessment will be in excess of £6 million and having regard to the nature of the claim and the way in which it has been pursued by the Claimant and his lawyers; bearing in mind also the Defendant’s rates as they appear on the Precedent H forms and what appears, on the face of it at least, to be a reasonable use of more junior solicitors where appropriate; and also bearing in mind that I have ordered that costs will be assessed on an indemnity basis; it seems to me that the sum of £3 million sought by the Defendant is appropriate and no more than ought reasonably to be ordered in this case. It is a “reasonable sum” to require the Claimant to pay on account. It is substantially lower than the Defendant’s likely level of recovery on detailed assessment and so, in my judgment, it does allow for a suitably wide margin of error. Accordingly, I shall order the Claimant to make a payment on account in the sum of £3 million within 28 days.”

Angela Nako is a Paralegal in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com