Failure to serve costs budget in time

Where a party fails to file its Precedent H on time, the budget will be treated as comprising only court fees under CPR 3.14 unless the breach is trivial or there is good reason for it. Good reasons are likely to be those that arise from circumstances outside of the defaulting party’s control, such as a debilitating illness, accident or unexpected developments in the case that render the time for compliance unreasonable (Mitchell v News Group Newspapers Ltd).

Mediation and costs sanctions

The Court of Appeal held that a refusal to respond to an invitation to mediate is in itself unreasonable conduct which may merit a costs sanction (PFG II SA v OMFS Co Ltd).

Part 36 automatic costs consequences

The automatic costs consequences where a party beats their Part 36 offer under CPR 36.14 could properly be disapplied where the party’s responses to offers and correspondence had been peremptory, dismissive and uncooperative (Thinc Group Ltd v Kingdom).

Recovery of ATE premium

Senior Costs Judge Hurst held that the level of a pre-1 April 2013 after the event (ATE) insurance premium of £15,900 was disproportionate. The ATE policy covered adverse costs and the claimant's own disbursements which in fact only amounted to £7,243.30. The judge ordered the defendant to pay 25 per cent (£3,750) of the premium (Kelly v Black Horse Ltd).

Change of expert

Where the claimant’s expert architect decided to retire from the case (he was 69) following a mediation and it sought permission to rely on another expert, the judge rejected the defendant’s allegation of expert shopping and application for disclosure of attendance notes concerning the retiring expert. He did, however, order disclosure of all that expert’s reports, including those containing the substance of the expert's opinion (BMG (Mansfield) Ltd v Galliford Try Construction Ltd).

Right to choose lawyer

An insured's right to choose a lawyer cannot be restricted to situations in which the insurer decides recourse should be had to an external lawyer. In interpreting Article 4(1) of Council Directive 87/344/EEC of 22 June 1987 in the context of legal expenses insurance in a preliminary ruling, the Court of Justice of Europe did not comment on whether the right to choose arises pre-action or only when proceedings are begun (Sneller v DAS Nederlandse Rechtsbijstand Verzekeringsmaatschappij NV).