Jurisdiction to award costs

The issue of a claim form, and not the service of it, begins proceedings and gives the court jurisdiction to order costs of and incidental to those proceedings. Where a claim is issued in order to protect time, the protocol correspondence between the parties that follows can lead to costs consequences if the claim is subsequently abandoned (Clydesdale Bank plc v Kinleigh Folkard & Hayward). 

Relief from sanctions

An order imposing a stay for a failure to provide security for costs was a sanction from which the claimant was required to seek relief. The term “sanction” in CPR 3.9 includes any consequence that is adverse to the party to whom it applies. However, not all sanctions are equal and they should not be treated as equivalent to one another - there is a significant difference between an order that specifies the consequence that proceedings are to be stayed if security for costs is not provided by a specified date and an order that, unless security is provided by a specified date, the claim will be struck out (Summit Navigation Ltd v Generali Romania Asigurare Reasigurare SA Ardaf SA). 

Capacity and approved settlements

The Supreme Court considered the correct test for whether a party has the capacity to conduct proceedings, and the effect of an apparent settlement embodied in a consent order approved by the court under CPR 21.10. The test for capacity in these circumstances is the capacity to conduct the claim or cause of action which the claimant in fact had, rather than to conduct the claim as formulated by her lawyer. Children and protected parties require and deserve protection, not only from themselves, but also from their legal advisers (Dunhill v Burgin). 

Calderbank offers

The Court of Appeal has extended the approved use by defendants of Calderbank offers accepting only a partial costs liability to circumstances where a claim has been exaggerated and the recovery at trial is modest in comparison. It would have been disproportionate and unjust to require a Part 36 offer to be made in the circumstances of this case and a Calderbank offer provided full costs protection from the date it expired (Walker Construction (UK) Ltd v Quayside Homes Ltd). 

Admissibility of expert evidence

An Air Accident Investigation Branch (AAIB) report was admissible as evidence in a negligence action brought against the pilot of a plane that had crashed. Because the report contained expert findings, it fell outside the rule in Hollington v Hewthorn that findings of a person other than the trial judge are not admissible at trial. The report also fell outside the scope of CPR 35, since it was not written by a person "who has been instructed to give or prepare expert evidence for the purpose of proceedings". Accordingly it could be relied upon as expert evidence without obtaining the court’s permission (Hoyle v Rogers).