Court discretion as to costs, conduct of the parties and compelling reason

[register]

Concerning permission to appeal CPR 52.6 says

"(1) Except where rule 52.7 applies, permission to appeal may be given only where—

(a) the court considers that the appeal would have a real prospect of success; or

(b) there is some other compelling reason for the appeal to be heard."

a)The CPR says that the court when exercising its discretion as to costs should take into account the conduct of the parties during and before the proceedings and the effort of the parties to resolve the dispute

CPR 44.2(4)(a) says
“Court’s discretion as to costs


(4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including –
(a) the conduct of all the parties;

And CPR 44.2(5)(a) says

(5) The conduct of the parties includes –
(a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction – Pre-Action Conduct or any relevant pre-action protocol;”

And a Practice Direction could be also CPR 40.11 which says “Time for complying with a judgment or order


40.11 A party must comply with a judgment or order for the payment of an amount of money (including costs) within 14 days of the date of the judgment or order, unless –”

And CPR 44.4 (3)(a)(ii) about efforts to resolve the dispute says

“Factors to be taken into account in deciding the amount of costs

44.4
(3) The court will also have regard to –
(a) the conduct of all the parties, including in particular –
(i) conduct before, as well as during, the proceedings; and
(ii) the efforts made, if any, before and during the proceedings in order to try to resolve the dispute”

Hence, if a party has not complied with a previous court order and/or has made difficulties during the enforcement of an order this could be considered as bad conduct. Hence the question that I have if this bad conduct could be considered as a ‘compelling reason’ to grant permission to appeal according to CPR 52.6?

b) The court has discretion as to costs but does this mean that it can ignore the CPRs about conduct and effort to resolve the dispute to which I make reference above? The reason is that CPR 44.2(4)(a) says

"the court will have regard to all the circumstances,”

and does not say

“the court may have regard”

The same for CPR 44.4 (3)(a)(ii) which says also

“Factors to be taken into account”

And

“The court will also have regard to”

and does not say

“the court may have regard”

c) No complying with a previous order is also a question of fairness and my question is could fairness be something which in the public interest? The reason is that which incentive there could be to comply with an order if a party does not comply with an order forcing the other party to make further applications incurring further legal costs if the party misbehaving does not suffer the consequences of its behaviour when costs are decided?

[register]

We hear very often to say that costs are at the discretion of the court and as a consequence it awards the costs that it wants and as a consequence it is difficult to appeal against a cost order.
However I wondering if this is correct because It seems to me that the court has to exercise its discretion at to costs taking into account CPR 44.2(4)(a), CPR 44.2(5)(a) about the conduct of the parties and CPR 44.4 (3)(a)(ii) concerning the efforts made by the parties to resolve the dispute because as I say in previous post nowhere in these CPRs it is made reference to “may”. Unless there is something I have not understood

[R0b]

Hello

What is your question, because I don't understand either of those posts.

[register]

Permission to appeal against a court order is often refused because it is considered that the court has a discretion as to costs. I would like to know if this discretion of the court as to costs is without conditions or the court should exercise it taking into account CPR 44.2(4)(a), CPR 44.2(5)(a) about the conduct of the parties and CPR 44.4 (3)(a)(ii) concerning the efforts made by the parties to resolve the dispute?

[R0b]

That is true and appealing any type of costs order can be difficult unless the judge has got it completely wrong or failed to take into account mitigating or adverse factors.

When considering costs, the first question to consider is whether or not a costs order should be made and if the answer is yes, then the next question is who should pay costs.

When considering a costs order, the general rule is that the successful party should receive his or her costs and there has been case law on this point that the courts should not deviate from this position unless natural justice dictates that it should do so. You are right, however, that when exercising that discretion to make an order for costs the court should consider the conduct and other matters under CPR 44.2(4)(a).

So the starting point is that the successful party should receive their costs subject to 44.2(4) and (5). This may mean that the successful party could have their costs reduced either because the successful party failed to consider a Part 36 offer, their conduct caused unnecessary costs and court resources, they were unsuccessful on a number of causes of action.

Regarding your point on non-compliance with a previous order, there is authority from the Court of Appeal that the courts should not (as a general rule) take account of failures to comply with previous orders (this was a costs order) in other applications, because that is effectively penalising the party in relation to a separate matter or application.

Whether a costs order is made or not, the court should always give its reasons why it is taking that approach. Not to do so could be grounds for appeal.

[register]

Can you provide me with the details of this authority from the Court of Appeal because according to me whether or not the court has to take into account the compliance with previous court order could depend if there is a link between this previous court order and the need for the new proceedings for example non-compliance with injunctions, made difficulties to prevent the enforcement of a court order..etc

[R0b]

Hoque v Ali (link here). See paragraph 21 in particular:-

21. Although, as I have said, this court should be very slow to interfere with the exercise of a judge's discretion in relation to costs, this was not a proper exercise of his discretion, arguably for two reasons. First, and most clearly, a judge has a very wide discretion as to when it comes to awarding costs, and wide case management powers and powers of sanction. However, it seems to me wrong in principle (save perhaps in the most exceptional case, and I find it difficult to think what they would be) for a judge to penalise one party in costs in relation to a particular application because that party has been late in paying costs in relation to a quite separate application. I am anxious, on this occasion anyway, to stand by the principle of "Never say never", but I do find it difficult to see how as a matter of principle that is right. There is simply no real relationship between the two issues.

If the previous order relates to the same issue, then I think a court could take that into account, but if it is an issue entirely separate (for example the matter is a breach of contract but then the current issue is for personal injury) then I it would appear the court should not regard the previous failures.

[register]

This authority concerns a case where the other party was late in paying a previous cost order but not that he has not paid it all

[R0b]

But the legal principle still applies. You will very rarely get two cases with the same facts.

Like I said if the failure to comply with a previous order relates to the same application/matter then it ought to be possible for a court to take that non-compliance into account, particularly if it causes a trial to be vacated and a new trial scheduled.

It all depends on the facts and only a judge can decide that, we cant give you definite answers.

[JCE]

That is true and appealing any type of costs order can be difficult unless the judge has got it completely wrong or failed to take into account mitigating or adverse factors.

...

When considering a costs order, the general rule is that the successful party should receive his or her costs and there has been case law on this point that the courts should not deviate from this position unless natural justice dictates that it should do so. You are right, however, that when exercising that discretion to make an order for costs the court should consider the conduct and other matters under CPR 44.2(4)(a).

So the starting point is that the successful party should receive their costs subject to 44.2(4) and (5). This may mean that the successful party could have their costs reduced either because the successful party failed to consider a Part 36 offer, their conduct caused unnecessary costs and court resources, they were unsuccessful on a number of causes of action.

...

Whether a costs order is made or not, the court should always give its reasons why it is taking that approach. Not to do so could be grounds for appeal.

@R0b:

Does the general rule that the 'successful' party should receive his or her costs apply to preliminary hearings as well?

If on application of a party (via N244) an adjournment has been granted - according to your point above the party whose application for adjournment has been granted would be considered 'successful' party and how can the successful party be ordered to pay actually the costs of the unsuccessful party as asssessed by the Judge at the hearing?

Going by your statement:

This may mean that the successful party could have their costs reduced either because the successful party failed to consider a Part 36 offer, their conduct caused unnecessary costs and court resources

the successful party could have their costs reduced, rather than costs actually awarded against them?

What is the best way to challenge such adverse cost order against the successful party?

Further if no order has been received (other than the Judge handing out a N460 on the day of the hearing), it appears from the posts in this thread (& CPR), that there is only 14 days to pay - from which date do the 14 days count if no order has been received?

How can any requirement to pay be stayed if an appeal is sought?

Can you provide the case law referred to in your original post please.

[R0b]

That's why I said as a general rule because it is just that, and at the courts discretion.

An adjournment is something different because the intention is to postpone the hearing and that may cause a delay to the timetable. if someone asked for an adjournment either too close to the hearing or on the day which resulted in delay or additional costs to the other side, I dont think you can argue that you should be entitled to have your costs back and let the other side incur further expense when it is you causing the delay.

No one case is the same and it depends on the facts and what has happened and this is where the court is able to depart from the general rule. For example, if the hearing was in 4 months time and you sought an adjournment by asking the other side to consent but they refused without giving any reason, it is possible their conduct may allow you to recover costs because you had no choice but to make an application.

Payment of costs is 14 days from the date of the judgment given unless a different order is made. If you want to appeal the costs, make an application to appeal for permission to appeal. You have 21 days from date of judgment to do so.

It is rare for a court to stay payment of costs pending an appeal and in most cases there has to be exceptional circumstances. Again, why should the other side have to wait for payment of costs they are entitled to because you want to appeal? A balance has to be struck and if your appeal is successful then the other side will need to repay you back.

There is far too much case law on this and to be honest I dont have time to trawl through it all so I suggest you do your own research as there is plenty of information about. You can do a Google search for "costs follow the event case law". I'll start you off with a link to some reading.

http://www.4kbw.net/news/29092017184442-note-on-costs/

[JCE]

Thanks very much for your explanations and pointer - that's a good starting point!

An adjournment is something different because the intention is to postpone the hearing and that may cause a delay to the timetable. if someone asked for an adjournment either too close to the hearing or on the day which resulted in delay or additional costs to the other side, I dont think you can argue that you should be entitled to have your costs back and let the other side incur further expense when it is you causing the delay.

No one case is the same and it depends on the facts and what has happened and this is where the court is able to depart from the general rule. For example, if the hearing was in 4 months time and you sought an adjournment by asking the other side to consent but they refused without giving any reason, it is possible their conduct may allow you to recover costs because you had no choice but to make an application.

Payment of costs is 14 days from the date of the judgment given unless a different order is made. If you want to appeal the costs, make an application to appeal for permission to appeal. You have 21 days from date of judgment to do so.

It is rare for a court to stay payment of costs pending an appeal and in most cases there has to be exceptional circumstances. Again, why should the other side have to wait for payment of costs they are entitled to because you want to appeal? A balance has to be struck and if your appeal is successful then the other side will need to repay you back.

The order including the cmc/ prelim. hearing had only been made 14 days before, hence there was no opportunity to apply earlier for an adjournment.

The other side failed to respond to a consent order request in time and the court failed to process my application for adjournment till the day before the hearing when the other side's solicitor chased it up with them.

A DJ then ordered on the day before for the cmc / ph to go ahead and adjournment to be decided at the hearing.

I hadn't even considered claiming costs from my end and didn't expect being slapped as 'successful party' re. adjournment with a whopping wasted cost order for the defendant's barrister. Also as this wasn't a substantive hearing, I didn't expect a cost order being made at this stage rather than at the end - I had asked here before re. costs risks and not recd. any def. answers.

Despite low claim value and low complexity and requesting at DQ stage and in the same application as the adjournment allocation to SC, the CC has left it on FT, which is quite unusual to say the least...

Challenge with appeal and payment of costs is currently: A week later still haven't received a copy of the order !!

Re: Cost appeal - are there any templates on LB (similar to POC) how to structure Grounds of Appeal and skeleton argument - ideally any precedents here / elsewhere providing grounds around CPR 44, 52 etc ??

Would "save as to costs" offers from the Claimant before issuing the proceedings and the Defendant before the cmc / ph be considered in the context of a Cost appeal or only after the final hearing?

What are (additional) cost risks if the appeal were dismissed?

[R0b]

If the judge made a wasted costs order against you then he or she must have had a good enough reason to give that sort of order. Only you know the facts of your case and how you've conducted/prepared yourself for the matter - we dont have those facts and if you think a judge has got it wrong then make an appeal.

This forum is not a law firm, it is largely consumer rights with limited knowledge in other areas. So if you want a precedent template for an appeal or skeleton, I would suggest you do some research if you dont want or cant afford to pay for a lawyer.

I've put enough information on earlier posts to give you an idea of how an appeal court might react to your application and if you still want to push ahead that's your choice. Consequence of losing is more costs being awarded against you.

Anyway, I wish you luck in your appeal.

[R0b]

Also, if you've not received the order yet, get onto the court and keep chasing every day and tell them you need it for an appeal against the costs order made. Dont sit around and wait for the court, that's not going to wash when you try to use it as an excuse.

[JCE]

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