#16067 - Costs - BPTC Civil Ligitation

COSTS

44.1, Interpretation and application

(1) In parts 44-47, unless context otherwise requires:
- “authorised court officer” means any officer of:
  - (i) the County Court;
  - (ii) a district registry;
  - (iii) the Family Court;
  - (iiia) the High Court; or
  - (v) the Costs Office
  - whom the Lord Chancellor has authorised to assess costs.
- “conditional fee agreement” = an agreement enforceable under s58 Courts & Legal Services Act 1990
- “costs” = includes:
  - fees, charges, disbursement, expenses, remuneration;
  - reimbursement allowed to a litigant under person under r46.5;
  - and any fee/reward charged by a lay representative for acting on behalf of a party in proceedings allocated to the small claims track.
- “costs judge” = a taxing master of the Senior Courts.
- “Costs Office” = the Senior Courts Costs Office
- “costs officer =
  - (i) a costs judge;
  - (ii) a District Judge; or
  - (iii) an authorised court officer
- “detailed assessment” = the procedure by which the amount of costs is decided by a costs officer in accordance with Pt 47.
- “The Director (legal aid)” = the person designated as the Director of Legal Aid Casework pursuant to s4 LASPO 2012, or a person entitled to exercise the functions of the director
- “Fixed costs” = costs the amount of which are fixed by these rules, whether or not the court has a discretion to allow some other or no amount; and includes:
  - (i) the amounts which are to be allowed in respect of legal representatives’ charges in the circumstances set out in Section I Pt 45;
  - (ii) fixed recoverable costs calculated in accordance with r45.11;
  - (iii) the additional costs allowed by r45.18;
  - (iv) fixed costs determined under r45.21;
  - (v) costs fixed by r45.37 and 45.38.
- “Free of charge” = has same meaning as in s194(10) 2007 Act
- “fund” = includes any estate or property held for the benefit of any person or class of person and any fund to which a trustee or personal representation is entitled in that capacity
- “HMRC” = HM Revenue & Customs
- “legal aid” = civil legal services made available under arrangements made for the purposes of Part 1 LASPO 2012
- “paying party” = a party liable to pay costs
- “the prescribed charity” =
- “pro bono representation” = legal representation provided free of charge
- “receiving party” = a party entitled to be paid costs
- “summary assessment”= the procedure whereby costs are assessed by the judge who has heard the case or application
- “VAT” = Value Added Tax
- “the 2007 Act” = the Legal Services Act 2007.
- “Legal Representation” = has the meaning given in r2.3.
(2) The costs to which Parts 44-47 apply include:
- (a) the following costs where those costs may be assessed by the court:
  - (i) costs of proceedings before an arbitrator or umpire;
  - (ii) costs of proceedings before a tribunal or other statutory body; and
  - (iii) costs payable by a client to their legal representation; and
- (b) Costs which are payable by one party to another party under the terms of a contract, where the court makes an order for an assessment of those costs.
(3) Where advocacy or litigation services are provided to a client under a conditional fee agreement costs ARE recoverable under Parts 44-47, notwithstanding that the client is liable to pay the legal rep’s fees and expenses only to the extent that sums are recovered in respect of those proceedings, whether by way of costs or otherwise.

44.2, Court’s discretion as to costs

(1) the court has discretion as to:
- (a) whether costs are payable by one party to another;
- (b) the amount of those costs; and
- (c) when they are to be paid
(2) if the court decides to make a costs order:
- (a) the general rule = the unsuccessful party will be ordered to pay costs of the successful party; BUT
- (b) the court may make a different order.
(3) The general rule (costs follow results) does NOT apply to the following proceedings:
- (a) in the Court of Appeal on an application or appeal made in connection with proceedings in the Family Division;
- (b) proceedings in the Court of Appeal from a judgment, direction, decision or order given or made in probate proceedings or family proceedings.
(4) if deciding what (if any) costs order to make, court WILL have regard to all circumstances, including:
- (a) the conduct of all parties (see below);
- (b) whether a party has succeeded on part of its case (even if not wholly successful)
- (c) any admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer to which costs consequences under Part 36 [offers to settle] apply.
(5) the conduct of the parties includes:
- (a) conduct before, as well as during, the proceedings; particularly whether parties followed the PD-Pre-Action Conduct or any relevant pre-action protocol;
- (b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
- (c) the manner in which a party has pursued or defended its case or a particular allegation or issue;
- (d) whether a C who has succeed in the claim, in whole or in part, exaggerated its claim
(6) the orders which court may make under this rule include an order that a party must pay [commentary: all these depart from the general rule, so reduce the costs that the successful party would otherwise recover were the general rule applied]:
- (a) a proportion of another party’s costs;
- (b) a stated amount in respect of another party’s costs;
- (c) costs from or until a certain date only;
- (d) costs incurred before proceedings have begun;
- (e) costs relating to particular steps taken in the proceedings;
- (f) costs relating only to a distinct part of the proceedings [issue-based orders, see commentary];
  - (7) Before making such an order under (f): court will first consider whether it is practicable to make an offer under (a) [proportion] or (c) [from/until a certain date] instead.
- (g) interest on costs from or until a certain date, including a date before judgment.
(8) where 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.

PD 44, para 4, Court’s discretion as to costs (rule 44.2). INTERIM COSTS ORDERS

4.1: the court may make an order about costs at any stage in a case.
4.2, certain costs the court will commonly make in proceedings before trial: the following table sets out the general effect of these orders (table is not exhaustive re what orders court may make).
In these interim costs orders:
- Court will consider same factors/commentary re all costs below.
- The order of how good an order is for the party is:
  - (1) Costs in any event
  - (2) Claimant/Defendant costs in the case
  - (3) Costs in the case
  - (4) No order for costs

Term	Effect
Costs Costs in any event	The party in whose favour the order is made is entitled to that party’s costs in respect of the part of the proceedings to which the order relates, whatever other costs orders are made in the proceedings. Where appropriate: where one party has been bad/at fault, so it is justified that the successful party is entitled to their costs whatever happens.
Costs in the case Costs in the application	The party in whose favour the court makes an order for costs at the end of the proceedings is entitled to that party’s costs of the part of the proceedings to which the order relates. [[where appropriate: is the most neutral order, most likely order where neither party is at fault, for procedural-type applications where there is no successful party as such; where a hearing is ineffective for some non-culpable cause, eg a civil jury failing to agree or papers being left in the post]]
Costs reserved	The decision about costs is deferred to a later occasion, but if no later order is made the costs will be costs in the case.
Claimant’s/Defendant’s costs in case/application	If the party in whose favour the costs order is made is awarded costs at the end of the proceedings, that party is entitled to that party’s costs of the part of the proceedings to which the order relates. If any other party is awarded costs at the end of the proceedings, the party in whose favour the final costs order is made is not liable to pay the costs of any other party in respect of the part of the proceedings to which the order relates. [[So the difference from this and ‘costs in the case’, is that you get these costs if you win; but you don’t have to pay them if you lose. i.e. if the party who receives this order is awarded costs at the end of the case, they recover these costs; but if they are not awarded costs at end of trial, both parties pay their own costs re this application]]
No order as to costs Each party to pay own costs.	Each party is to bear that party’s own costs of the part of the proceedings to which the order relates whatever costs order the court makes at the end of the proceedings. [[Most likely where: parties have wasted court’s time; no justification for either party to recover its costs, neither party more at fault than the other]]
Costs thrown away	Where, for example, a judgment or order is set aside, the party in whose favour the costs order is made is entitled to the costs which have been incurred as a consequence. This includes the costs of —preparing for and attending any hearing at which the judgment or order which has been set aside was made; preparing for and attending any hearing to set aside the judgment or order in question; preparing for and attending any hearing at which the court orders the proceedings or the part in question to be adjourned; any steps taken to enforce a...

#16067 - Costs - BPC Civil Litigation

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