Orders and Interest PDF Print E-mail

Orders



We are finding that some solicitors come unstuck on costs because they have failed to address, at a hearing or in a draft order, the necessary requirements for securing costs. In addition, before agreeing a final order, the prudent practitioner trawls any previous hearings to check orders for compliance so that a final order acts as a safety net to all costs orders.



A helpful glossary of CPR 44.3 practice direction below is merely a guideline.



Practice Direction Supplementing CPR Rule 44.3:










































"Costs of and Caused By..."

Most often seen where pleadings are amended. The Receiving Party will recover the costs of preparation and attendance on hearing and the work done within the order. For example, amending pleadings.
"Costs Reserved"

The court defers the decision. If no decision subsequently made the costs become “Costs in the Case”.
"Costs in the Case"

The Receiving Party in whose favour an order is made at the end of a case is entitled to the costs of the part of the proceedings to which the order relates.
"Costs Thrown Away"

Where there is a reversal on Judgment or order, the costs incurred by the Receiving Party include the work and attendance of the original hearing, giving rise to the order: work and preparation for the application hearing: steps to enforce.
"Costs in Any Event" Entitlement on a specific, unless overturned, notwithstanding any other Costs Orders made.
"Defendant's / Claimant's Costs in the Application"

The Party in whose favour the order is made awarded costs at the end of the proceedings, that Party is entitled to costs of the part of the proceedings to which the order relates. Any other Party 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.
"No Order as to Costs" Each Party bears their own costs.
"Costs Here and Below"

Costs of the hearing and costs of proceedings in any lower court: but check position on the Appeal and costs limit below divisional court.
"Silence!"

CPR44.13(1): Precludes any Party being entitled to costs. Griffiths -v- Metropolitan Police Commissioner (2003 ALL ER D 32)


Indemnity and Standard Base Costs



The substantive difference between these two awards is in reality modest. The difference is basically that in an award for indemnity costs that any doubt as to whether they were:



i) reasonably incurred; and


ii) reasonable in amount



will be resolved in favour of the receiving party. A standard costs order in contrast, determines any doubt in accordance with reasonableness and proportionality in favour of the paying party.



The scope for an award of indemnity costs in litigation is set out in CPR 44.3(4) and 44.4(3).



The Court of Appeal in Excelsior Commercial and Industrial Holdings Limited -v- Salisbury Hammer Aspen & Johnson (2002) ALL ER (D)39 laid down the test as to whether indemnity costs should apply.



This has been taken further by a recent judgement by Coulson J in D-Morgan plc -v- Mace & Jones (A Firm) 2011 ALL ER (D)198.



In the light of that decision it appears that the bar is set very high for obtaining an Indemnity Costs Order.




Statutory Charge



Remember that the Statutory Charge requires compliance with Legal Services Commission where client has received advice and assistance under the Legal Aid Act, 1988 and consider Schedule 4 of Legal Advice and Assistance Regulations 1989. It is prudent to complete and ADMIN 1 to ascertain whether the Statutory Charge applies to the specific circumstances of the case. Was anything preserved and/or recovered? If certain items were not in dispute there is an argument that they fall outside the scope of the Statutory Charge. Remember the exemption figure (£3,500). Remember that the totality of costs in a composite certificate are caught by the Statutory Charge, not those specific to the ancillary relief issues.



Wasted Costs and Orders



CPR Rule 48.7



This Rule applies where the court is considering whether to make an order under Section 51(6) of the Supreme Court Act 1981.



See also Section 53 Practice Direction Supplementing CPR Rule 48.7.



Fixed Costs



Visit our information regarding any costs recovery and small claims.



Interest



The principle embodied in the decision of Chatham and Dover Railway Company -v- South Eastern Railway Company (1893 AC 429)



“interest is awarded, not for the damage done but being kept out of money that should have been paid...”



The onus on the Defendant to show that interest should not be awarded in matters of personal injury (S.35 A[2] of the Supreme Courts Act 1981) and under S.57 of the Bills of Exchange Act 1882.



In other cases the Claimant must prove entitlement.



• Rate and interest period discretionary
• The court has statutory powers to award interest on both debt and damages to be awarded at trial or assessment.
• An exception a default Judgment on a claim for a specified amount of money (CPR 12.6)
• Interest must be claimed in the Particulars of Claim and rate claimed.
• Personal injury divides interest claims: General Damages Special Damages
(i) General: 2% per annum from date of service until trial
(ii) Special: 6% presently: no interest on future loss or loss of earnings capacity.
• Non personal injury cases: 8% should be pleaded in the Particulars.



Civil Fees



Note the civil fees rate changes from 1.10.07. In addition, consider a further amendment to the Civil Proceedings Fees (Amendment) (No 2) (Amendment) Order 2007 (SL2007/2008). Assessment of Bills of Costs fees to be calculated on the amount of bill including VAT and disbursements.