Tag: law costs draftsman leeds

Security for Costs Retained After Judgment and Disclosure Ordered Against Litigation Funders

Ellena HunterLeave a comment

Security for Costs Retained After Judgment and Disclosure Ordered Against Litigation Funders

The decision in Yodel Delivery Network Ltd v Corlett & Ors [2026] EWHC 1741 (Ch) concerned a series of post-judgment costs applications following the dismissal of a substantial counterclaim and the award of indemnity costs in favour of the Claimant. The judgment addresses a number of important costs issues, including whether security for costs paid into court can be released to satisfy an interim costs order, the circumstances in which additional security may be ordered for detailed assessment proceedings, the availability of non-party costs orders against those directing litigation, and disclosure of litigation funders. The court ultimately refused to order the release of £1.525 million held as security for costs, granted further security for the costs of detailed assessment, made a non-party costs order against the First Defendant and ordered disclosure of the identity and funding arrangements of those who had financed the litigation.

Background

The Claimant successfully defended a counterclaim brought by the Third Defendant and additional claim by the Fourth Party (“counterclaim”) and was awarded costs on the indemnity basis, subject to detailed assessment. An interim payment on account of costs totalling approximately £2.75 million was also ordered.

Prior to trial, £1.525 million had been paid into court as security for the Claimant’s costs. Following judgment, the Third Defendant and Fourth Party applied under CPR 37.3 for that money to be paid out to the Claimant in partial satisfaction of the outstanding interim costs liability. The Claimant opposed the application and, in turn, sought:

  • Additional security for the anticipated costs of detailed assessment proceedings;
  • A non-party costs order against the First Defendant pursuant to section 51 of the Senior Courts Act 1981;
  • Disclosure of the identity of those who had funded the litigation; and
  • An extension of time for commencing detailed assessment proceedings.

Can Security for Costs be Used to Satisfy an Interim Costs Order?

The Third Defendant and Fourth Party argued that the purpose of security for costs had effectively crystallised once the Claimant obtained a costs order in its favour. They submitted that there was no reason why the money held by the court should not be released to satisfy part of the outstanding costs liability immediately.

The Claimant argued that the purpose of security for costs is to protect a successful party from the risk of non-payment of all costs liabilities arising from the proceedings. Releasing the security would leave the Claimant exposed to a substantial risk that further costs awarded following detailed assessment would be irrecoverable.

The Court accepted the Claimant’s position.

The Judge emphasised that security for costs paid into court is security held by the court to protect against enforcement risk. While funds paid into court are frequently released after judgment by agreement, that does not alter the essential nature of the security.

The Judge held that the Claimant was entitled to retain security until all liabilities in respect of which the security had been ordered had been satisfied. Granting the application would have discharged the interim costs debt whilst simultaneously depriving the Claimant of security for potentially more than £1.3 million of additional costs that could become payable following detailed assessment.

In deciding how to exercise its discretion the court looked at the circumstances, including the Third Defendant’s financial position. That evidence demonstrated why security for costs had originally been ordered and reinforced the continuing need for it. The application for payment out was therefore refused.

Additional Security for Detailed Assessment Proceedings

The Claimant also sought additional security for the anticipated costs of the detailed assessment itself and argued that it was likely to incur approximately £250,000 in assessment costs.

The court accepted that it had jurisdiction to order security for the costs of detailed assessment proceedings but whilst accepting that some additional security was justified, the court rejected the Claimant’s submission that those costs should be assessed on an indemnity basis merely because the underlying claim had resulted in an indemnity costs order. The Judge held that costs of detailed assessment proceedings are separate proceedings and any indemnity assessment would depend upon the conduct of those proceedings themselves.

The Court ordered additional security of £48,000. Failure to provide the security would result in the Third Defendant and Fourth Party being debarred from participating in the detailed assessment proceedings.

Non-Party Costs Order Against the First Defendant

The Claimant also sought an order under section 51 of the Senior Courts Act 1981 that the First Defendant be personally liable for the costs of the counterclaim.

Although the First Defendant opposed the application in part, he did not dispute in principle that such an order could be made.

One argument advanced was that it was too late for the Claimant to seek a non-party costs order because earlier costs orders had already been made. The Court rejected that submission. The Judge confirmed that there is no prescribed time limit for section 51 applications and noted that such applications are frequently made after costs orders have been obtained, particularly where questions subsequently arise over enforceability.

The Judge therefore made the First Defendant jointly and severally liable for the costs of the injunction application and the counterclaim proceedings.

However, the Court held that it lacked jurisdiction to make the First Defendant liable for costs previously awarded by the Court of Appeal because any such application would need to be determined by the Court of Appeal itself.

Disclosure of Litigation Funders

Perhaps the most notable aspect of the decision concerns the Claimant’s application for disclosure relating to those who had funded the counterclaim.

Evidence before the court established that the litigation had been financed by numerous investors. The Claimant sought extensive information concerning the identity of the funders, the amount of funding provided, the terms upon which funding had been made available and the extent of each funder’s involvement in the litigation.

The court accepted that such disclosure was appropriate and ancillary to potential future section 51 applications.

The Judge held that the Claimant was entitled to understand who had funded the litigation and assess whether non-party costs applications should be pursued. The Judge rejected arguments that disclosure should wait until after service of the bill of costs, particularly given the uncertainty surrounding the Third Defendant’s financial position.

Disclosure was therefore ordered within 14 days. However, recognising that the Third Defendant was attempting to raise funds to satisfy the outstanding costs liability, the court directed that the Claimant should not contact the identified funders until 1-month after the hearing date.

Conclusion

This decision provides useful guidance on the treatment of security for costs following judgment. It confirms that a successful party will not necessarily be required to release security merely because an interim costs order has been made. Where there remains a real risk that future costs liabilities may go unpaid, the court may permit the security to remain in place until detailed assessment has concluded, and all liabilities have been discharged.

The judgment also highlights the court’s willingness to order security for the costs of detailed assessment proceedings, make non-party costs orders against those responsible for litigation and require disclosure from those who have funded unsuccessful claims.

Ellena Hunter-Green is an Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercial@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.

Getting it Right – CPR 2.8 and calculating dates for service

Joanne ChaseLeave a comment

Calculation of Time

The recent case of Corfield v Howard [2024] EWHC 2727 (Comm) is a reminder of the importance of calculating time for service and filing of Court documents.

In the above matter, the Defendant applied for declaratory relief as to the meaning of enforcement of a settlement agreement scheduled to a Tomlin order. In accordance with a consent order, skeleton arguments were due to be served and filed one clear day before the hearing. The Court staff noted that no skeleton arguments had been filed and served by the due date. Their time was therefore taken up identifying the breach and writing chasing letters to the parties’ representatives. Both parties subsequently filed their skeleton arguments. HHJ Judge Davis-White KC sated that he did not need to enquire further as to where the fault lay, however, he said that Counsel and instructing solicitors should liaise in good time to ensure that the required skeleton argument can be prepared by Counsel by the required time.

The Judge went on further to state that:

“the delivery of skeleton arguments in accordance with guidance of court order is essential for the efficient running of the courts”. Although the Judge was able to proceed with the hearing on this occasion, the Judge did warn that “the court is likely to impose sanctions in cases as egregious as these”.

Although there were no sanctions in this case, it serves as a timely reminder that compliance with court imposed deadlines is mandatory and, in an appropriate case, the Court may impose sanctions for a failure to comply. Getting it wrong can be costly, and, in the extreme, fatal to the case.

The Rules

CPR Part 6 is at the heart of the rules relating to service of documents, and Practice Direction 6A relates to service within the United Kingdom.

CPR 2.8 sets out how we go about calculating time, and parts 2.8 (2) and (3) specifically explains the clear day rule which often catches practitioners out:

“(2) A period of time expressed as a number of days shall be computed as clear days.

(3) In this rule ‘clear days’ means that in computing the number of days –

(a) the day on which the period begins; and

(b) if the end of the period is defined by reference to an event, the day on which that event occurs are not included.”

CPR 2.8 (4) continues to explain that:

“Where the specified period –

(a) is 5 days or less; and

(b) includes –

(i) a Saturday or Sunday; or

(ii) a Bank Holiday, Christmas Day or Good Friday,

that day does not count”

Examples

Where a CMC is listed for 28 March and the Court orders bundles to be filed no later than 7 days before the CMC, the last date for filing is 20 March.

Alternatively, where a witness statement must be served 5 days before a hearing listed on Tuesday 18 March, the deadline for service is Monday 10 March.

Interestingly, CPR 44 practice direction 9.5 (4) provides different rules for the filing and service of a statement of costs before a fast-track trial and other hearings;

“The statement of costs must be filed at court and copies of it must be served on any party against whom an order for payment of those costs is intended to be sought as soon as possible and in any event –

(a) for a fast track trial, not less than 2 days before the trial; and

(b) for all other hearings, not less than 24 hours before the time fixed for the hearing.

Where a fast track trial is listed for 1.30pm on the first Tuesday after Easter, taking into account the clear day rule and CPR 2.8 (4), the statement of costs must be filed and served no later than the Tuesday before. Wednesday and Thursday provide the 2 clear days, with Good Friday, Easter Saturday, Sunday and Monday not counting. Therefore, in this instance, 7 days before the hearing – suddenly the 2 days turn into 7 days.

However, if it were an interim application hearing listed for 1.30pm on the first Tuesday after Easter, the statement of costs must be filed and served no later than 1.30pm on Maundy Thursday.  What is crucial here is that this rule provides for hours and not clear days. Therefore, filing and serving at 1pm on Maundy Thursday would be perfectly acceptable despite it being within no clear days of the hearing. The clear day rule does not apply when the rules specify the deadline as a number of hours rather than a number of days.

Conclusion

Being aware of this subtle difference could prove to be a very useful tool for any practitioners who are under time constraints for the filing and service of Court documents. A note of advice –  if in doubt then check the rules. The rules regarding filing and service can easily catch you out, particularly bearing in mind that there are also rules surrounding the method of filing and service, i.e. service by email, fax etc., in addition to those relating to timing.

Joanne Chase is a Legal Director in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com

Can the paying party go to prison for not paying costs owed?

ujjainimistryLeave a comment

The appeal of Smith v Kirkegaard [2024] EWCA Civ 698 involved a contempt application and consideration of whether non-compliance with an order for costs amounted to a contempt of court punishable by committal to prison.

Case Background

In 2018, Respondent – Mr Kirkegaard, discontinued his original claim for libel against Appellant – Mr Smith, because four allegedly defamatory blogs, published by Mr Smith, were deemed to be ‘expressions of opinion’ at a preliminary hearing in 2019. This meant that a claim for libel was likely to fail. Mr Kirkegaard was ordered to pay half of Mr Smith’s costs, which were summarily assessed in the sum of £13,500 and payable within 14 days of the order. But this was not paid.

Following discontinuance of the claim in May 2020, Mr Smith was thereby entitled to his costs of the action. A final costs certificate was issued by the SCCO in September 2021 in the sum of £26,668.43 to be paid by Mr Kirkegaard; this was endorsed with a penal notice. This was also not paid.

Mr Kirkegaard failed to make any payments under the costs orders despite several attempts by Mr Smith to enforce them, including initiating enforcement proceedings in Denmark and Germany, investigating public records, and filing an application to be questioned about assets. Mr Smith alleged that Mr Kirkegaard evaded service by hiding his location generally.

Application to commit for contempt.

In July 2023 Mr Smith proceeded to file a contempt application, alleging that Mr Kirkegaard had made a false statement regarding his named address and had failed to pay two costs orders. This was dismissed by the judge for a range of issues. Permission to appeal this decision was however granted by Warby LJ in March 2024.

Was the failure to pay costs enforceable in contempt proceedings?

It was determined that a failure to pay a costs order could not be pursued by contempt proceedings.

Mr Smith relied on Australian case law (PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission [2020] FCA 685) to argue that the court could treat a deliberate failure to pay a judgment debt as contempt if they had the means to pay. This argument was based on the fact that in March 2020, Mr Kirkegaard had proffered to have an annual income of £72,000 and could make £500 monthly instalments.

The Appeal Decision

Lord Justice Dingemans dismissed Mr Smith’s line of argument on the basis there is a different procedural and statutory regime relating to non-payment of judgment debts in England and Wales.

Although CPR 81.4 provides for enforcement by an order for committal for disobedience of a judgement or order, the Debtors Acts 1869, effectively abolished committal to prison for non-payment of judgment debts, apart from some exceptions in sections 4 and 5.

LJ Dingemans suggested that the section 4 exceptions and Section 5 as a whole, did not apply in this case. The default remains a contempt in these circumstances, but not punishable by committal.

Conclusion

LJ Dingemans, LJ Bean and LJ Asplin all agreed that the non-payment of the costs order was a contempt of court, but it could not be enforced by imprisonment for contempt.

The courts have developed other remedies, such as the freezing order, to help creditors enforce judgment debts. The courts may also exercise a discretion not to permit a defaulting party to participate in further proceedings – but that did not arise in this case.

Clarion’s Costs and Litigation Funding team can be contacted at civilandcommercialcosts@clarionsolicitors.com

J v Luton Borough Council & Ors (2024) EWCA Civ 3

Joanne ChaseLeave a comment

The recent case involved J (the Protected Party) and his lack of capacity in deciding whether he could travel abroad with his family in order to enter into an arranged marriage and engage in sexual relations.

Background

J and his family were planning to travel to Afghanistan to visit their family who resided there. The reason for their travel was to visit family but to also enter into arranged marriages for both J and his sister. In 2022, J’s sister requested support in bringing J’s soon to be wife to the UK. However, a mental capacity assessment confirmed that J did not have capacity to enter into a marriage or have sexual relations.

The case

J’s family made an oral application in order to confirm that J was allowed to travel to Afghanistan with the family. The application was denied on the grounds that there had been a ‘Forced Marriage Protection Order’ placed on J. The Judge agreed to meet with J and collated oral evidence from J’s father, his social worker and J’s sister. The appeal confirmed that the decision would not be overturned due to the clear and significant risks for J and any other British nationals travelling to Afghanistan, this was in respect of the decision made by ‘The Foreign, Commonwealth & Development Office’ against travelling to and from Afghanistan which was targeted towards the general population.

The family of J had appealed the decision in reference to the decision failing to take J’s wishes and values into consideration and that the decision would go against J’s Article 14 rights. However, it was argued that the safety of J and his lack of capacity did not deem him able to engage in a marriage or sexual relations and therefore the decision was in his best interests.

 Conclusion

The Court upheld the decision against J travelling to Afghanistan for the arranged marriage. They had reviewed the risks involved in travelling to Afghanistan and the importance of travelling for J and his family in order to reconnect with J’s family. The Judge also concluded that J’s capacity could possibly be maximised with further education and that further decisions regarding travel should be dealt with in a pre-planned way in the future and would be further reviewed at the appropriate time.

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

A Party’s impecuniosity is not a reason to depart from the normal position on costs

Katie SpencerLeave a comment

In the case of K v W (Respondent’s Costs on Application for Permission to Appeal) [2023] EWFC 300 (B) (25 October 2023), HHJ David Williams outlined the costs implications for unsuccessful appeal attempts within the Family Court. The ruling ordered the Mother to pay the Father’s legal costs totalling £6,021.

The Appeal

Within the judgment, HHJ David Williams referred to the Appellant and Respondent as the Mother and Father. The Mother made an oral application to appeal the decision of the District Judge at the handing down of judgment hearing, which was refused. The Mother filed an Appellant’s notice for leave to appeal.

The Father was required to file a skeleton argument in response to the appeal and attend the hearing. At the permission to appeal hearing, the Appellant’s notice was refused on all grounds.

Costs of the Appeal

The Father filed a Schedule of Costs in advance of the hearing seeking a costs order against the Mother in the sum of £6,021. The Father submitted that as his attendance at the hearing was requested by the Court and due to the application being unsuccessful, a costs order should be ordered in his favour. The Father’s Schedule of Costs included £2,000 for Counsel’s brief fee and £1,000 for drafting the skeleton argument.

The Mother opposed the costs order and submitted that she had already paid the sum of £20,000 to Dr Proudman for drafting her skeleton argument and a £8,000 brief fee for attending the hearing. The Mother further submitted that she had been struggling financially and had only £100 in her bank. Nonetheless, her financial contributions to her own legal costs raised questions about her ability to pay the costs submitted by the Father.

Paragraph 4.24 of Practice Direction 30A states:

“Where the Court does request –

  • submissions from; or
  • attendance by the respondent,

the court will normally allow the costs of the respondent if permission is refused.”

In this case, the Court requested that the father file a skeleton argument and attend the hearing. For the Court to depart from the usual position as set out in the Practice Direction above, there must be a compelling reason. The Court held that “The mother’s alleged impecuniosity is not a reason to depart from the normal position on costs, although it may be relevant to how or when any costs order is to be satisfied.”

Furthermore, HHJ David Williams stated “it is clear from the mother’s own case that she either had or has been able to access funds of circa £30,000 in order to pay the fees of her counsel, Dr Proudman. If the payment of those fees has brought about the mother’s impecuniosity, as alleged, that cannot be a reason not to make a costs order in favour of the father.”

The Judge held that as the Mother was previously refused permission to appeal and knew the risks of having to pay the Father’s costs, there was no reason for the Father to be left out of pocket. When assessing the costs, the Judge concluded that the costs claimed by the Mother were significantly higher than the costs claimed by the Father. The Judge made reference to both fees for the skeleton arguments, noting that the Mother’s was 10 times more than the Father’s. An order for costs was ordered in favour of the Father and the full sum of£6,021 was held to be reasonable and proportionate.

Katie Spencer is a Paralegal Apprentice in Clarion’s Costs and Litigation Funding Team. You can contact her on 07741 988925 or at katie.spencer@clarionsolicitors.com.

PSG Trust Corporation Limited v CK [2024] EWCOP 14

hawamayetLeave a comment

This case concerned how a Property and Affairs Deputy should approach the issue of whether to inform P of the value of their Civil Litigation settlement in the case in which knowledge of the same may make them vulnerable.

The applicant, PSG Trust Corporation Limited, acts as the Deputy for both CK and NJ and highlighted the predicament which deputies regularly face as there is little guidance regarding informing P of the value of their settlement.  After reviewing what relevant case law there is, Hayden J set out some of the factors to be weighed in making the decision:

‘The ‘matter’ or decision is whether P wishes to request the value of her funds, and the factors relevant to her capacity to make that decision are likely to include her understanding of:

i. The nature of the information in question;
ii. The risks of obtaining it;
iii. The risks of not obtaining it;
iv. The benefits of obtaining it;
v. The benefits of not obtaining it.’

Hayden J then applied the principles to the cases before him. CK was involved in a traffic accident and as a result of her injuries has vulnerabilities. Hayden J concludes CK lacks capacity to take the decision herself but has clearly expressed her wishes that she should know the amount of the settlement, so that she can make a Will amongst other things, and therefore declares that it is in CK’s best interests to be told. NJ has been diagnosed with Cerebral Palsy and other conditions, and there was a history of financial abuse, making NJ vulnerable to exploitation. Accordingly, Hayden J finds NJ lacks capacity and that it would not be in her best interest to be told of the amount of the award.   

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

A substantial reduction of costs on the indemnity basis in a summary assessment

ujjainimistryLeave a comment

Mrs Justice Knowles summarily assessed the costs of a dismissed committal application, made by the wife in Alvina Collardeau v Michael Fuchs & Anor [2024] EWHC 642 (Fam). The costs of the First and Second Respondents were assessed on the indemnity basis, but they were substantially reduced for the reasons set out below.

Indemnity Basis:

Mrs Justice Knowles saw ‘no justification for departing ’’ from the principle that indemnity costs are usually imposed in contempt proceedings, and she, therefore, assessed the costs on this basis. The Judge noted that the applicant’s case was ‘weak and evidentially flawed’’ as well as being ‘improperly motivated and disproportionate’.

CPR 44.4(1)(b) outlines the factors to be considered in deciding the amount of costs to be awarded when assessing on the indemnity basis. Costs will be allowed if they are not unreasonably incurred, or they are not unreasonable in amount; any doubt will be resolved in favour of the receiving party. The Court do not need to have regard to proportionality when assessing costs on the indemnity basis. This means that the receiving party is likely to obtain a higher percentage of their costs claim on assessment than if costs were assessed on the standard basis.

Despite Mrs Justice Knowles ordering that the costs be assessed on the indemnity basis, she did determine that the costs incurred by both respondents were ‘manifestly excessive and unreasonable’. The total spent between both respondents was £510,876.90. The Second Respondent submitted that he was entitled to have regard to the wife’s profligate approach to litigation costs when instructing his own legal team. The Judge deemed this as a ‘wholly unreasonable approach, which encourages exorbitance, if not profiteering’.’ This Respondent’s total costs exceeded £330,000.

The First Respondent’s costs were reduced by 33% as it was not justifiable to have 2 of each grade of fee earner preparing the case, charging a significant rate. Counsel’s fees were also reduced by 50%.

The Second Respondent’s fees were reduced by 44%. But this was still considered unreasonably high and excessive. There were 3 Grade A fee earners on this matter, which was deemed unnecessary. The costs associated with any obtained expert evidence was deducted in full as the court did not grant authorisation for expert evidence to be adduced.

Mrs Justice Knowles considered all features of the case and in order to reach a just decision, costs were assessed on an indemnity basis, but the costs were heavily reduced as they were considered to be wholly unreasonable.

Ujjaini Mistry is a Paralegal in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at CivilandCommercialCosts@clarionsolicitors.com

Litigant in Person required to file and serve a costs budget

Bethany CollingsLeave a comment

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

Sandwell and West Birmingham Hospitals NHS Trust v GH [2023] EWCOP 50 

Stephanie KayeLeave a comment

This case involves an application made by an NHS Trust, seeking a declaration that an individual lacked capacity to make decisions about treatment for breast cancer, specifically the undertaking of breast cancer surgery (a mastectomy) and associated care and treatment. 

Background: 

In March 2023 GH, a 52-year-old woman with a prior diagnosis schizoaffective disorder was diagnosed with breast cancer,  and has refused all treatment because of her described ‘delusional’ beliefs. As a response, the Trust that manages her cancer treatment applied to the Court of Protection for declarations and orders that P lacked capacity to conduct the proceedings and to make decisions about whether to agree to undergo the necessary breast cancer surgery and associated care and treatment.

Dr Aziz concluded that there were issues with regards to her mental capacity as determined by the capacity assessment. This was decided on the basis that P had been in regular contact with mental health services since 2006, and had previously been detained under Section 3 of the Mental Health Act 1983 for suffering with psychosis, which involved GH hearing voices on a regular basis. In 2012, she suffered a relapse which was thought to be due to non-compliance with her medication. This resulted in her once again being detained under the Mental Health Act from 2022 to early 2023.

Conclusion: 

Mr Justice Poole stated that he was ‘satisfied that all practicable steps to help GH have been taken without success. There have been a number of discussions with her and professionals have tried to strip down the information to the basic information she requires, using straightforward language. The problem for GH is not that she cannot understand the key concepts involved, it is that she has delusional beliefs that prevent her from understanding and therefore weighing and using relevant information, namely that she has breast cancer’.

The court subsequently concluded that it was in GH’s best interests to undergo the necessary surgery in respect of her breast cancer diagnosis. GH subsequently underwent the mastectomy surgery which she did not resist, the tumour was operable, and she has recovered well from the procedure with no adverse effects noted with regards to her mental health.