Robert Marven QC

Important High Court decision which holds that the ‘Arkin cap’ ie. the cap on a commercial funder’s liability for adverse costs to the level of funding provided, is not a rule that applies automatically but merely an approach that might commend itself in other cases. The decision is being appealed to the Court of Appeal.

High Court appeal setting out the correct approach to deciding whether it was ‘unjust’ to order the usual consequences in CPR r 36.17(4) when a claimant betters her own Part 36 offer. It was held that the court has jurisdiction to order some but not all of these consequences.  However a court cannot decline to award the ‘additional amount’ under r CPR r.36.17(4)(d) because of either the margin by which the offer was beaten or the extent to which the claim had been reduced. Further it is impermissible to regard the prescribed level of the additional amount as rendering unjust to award this amount; and the amount is  ‘all or nothing’  and judges do not have the power to award it only in part.

High Court appeal decision on the extent of the court’s inherent jurisdiction to order solicitors to give ‘delivery up’ to a former client of documents on the client file.  Robert acted for the solicitors who successfully established the important principle that there was no jurisdiction to order delivery up of documents, or copies of documents, over which the solicitor rather than the client had proprietorial rights.

High Court appeal decision in which Robert acted for the successful solicitors in establishing the principle that, when requested to deliver a bill in accordance with the Solicitors Act 1974, the solicitors were entitled to determine the form and content of the bill that they delivered; the client could not require delivery of a particular ‘bill’ which already existed on the solicitors’ file.

Court of Appeal decision giving important guidance on the proper approach to costs orders in group litigation.  Robert acted for the successful defendant in establishing the principle that in deciding which party was the winner it was not appropriate simply to ask ‘who receives the cheque’ in the context of complex group litigation.  Rather it was necessary to consider which party was successful in the context of the litigation as a whole.

An important Court of Appeal decision on the reasonableness of publicly funded claimants transferring to CFA plus ATE funding, immediately before LASPO came into force. It was held that where the advice to the claimant had been flawed, the claimant could not establish that the transfer was reasonable in the absence of evidence establishing that, if full advice had been given, the decision would have been the same.

Court of Appeal decision which establishes that Limited Liability Partnerships of solicitors are not litigants in person, for the purposes of the litigant in person costs rules in CPR r 46.5.

High Court appeal decision on the level of cost a client should be required to pay in circumstances where the costs were very substantially higher than the estimate which the solicitors had given.  It was held that that it was wrong in principle for the solicitors to rely on the increase in the other side’s costs in attempting to justify exceeding their estimate.

Supreme Court appeal which establishes that for the purposes of the LASPO transitional provisions an appeal is part of the same ‘matter’ or ‘proceedings’ as the claim at first instance. Hence where, after the coming into force of the LASPO regime, a pre-LASPO CFA and ATE policy are extended to cover the appeal, the CFA and policy still fall under the pre-LASPO regime so that the appeal success fee and premium are recoverable inter partes.

Court of Appeal decision which establishes that where solicitors received stage 1 fixed costs in a claim under the RTA Protocol for low-value personal injury claims, but the claim did not proceed to stage 2, the defendant’s insurers are not entitled to repayment of the stage 1 costs.

Court of Appeal decision on the application of the Cancellation of Contracts made in a Consumer’s Home or Place of Work etc Regulations 2008.  The Regulations do not apply to contracts signed by consumers at a meeting in a community centre which was not the traders’ usual place of business, and which the clients attended as a result of advertisements and text messages; this was not an ‘excursion’ which had been ‘organised by’ the trader.

High Court appeal decision which establishes that in a dispute between a solicitor and his former agent, the solicitor could not rely on the ‘without prejudice’ privilege of his former clients and their opponents in the litigation to resist disclosure of some. However the solicitor could rely on his former clients’ legal professional privilege to resists disclosure of other documents.

Appeal decision on the important issue of when and whether one firm of solicitors can validly assign to another firm of solicitors both the benefit and the burden of a CFA, so effectively assign the CFA as a whole.  It was held that a CFA can be assigned as a whole, and that the burden can be assigned along with the benefit because the two are inextricably linked.  This principle is of general application and applies irrespective of the circumstances surrounding the assignment; the principle is not confined to the situation where the assignment is motivated by the client’s wish to follow the fee earner conducting his case from the first to the second firm.

High Court appeal concerning various issues in relation to the CFA between the claimant  and his solicitors.  The CFA applied retrospectively from a back-date about a year before the CFA was actually entered into.  The judge held that the Costs Practice Direction required that the notice of funding filed and served by the claimant’s solicitors stated the date that the CFA had actually been entered into.  As the notice actually provided only referred to the back-date, then unless relief from sanction was granted, the claimant could not recover any success fee.

Appeal decision considering the application of Part 36 to detailed assessment proceedings where the receiving party had beaten his own offer.   The court held that it was not ‘unjust’ to award the receiving party the ‘additional amount’ provided for in CPR r 36.14(3)(d).  The purpose of this provision was to penalise a paying party for not accepting a timely and realistic offer from the receiving party.  The costs judge had been wrong not to award the additional amount because there had been a ‘significant reduction’ to the receiving party’s bill.

Appeal decision deciding that the fixed success fee regime for injury claims by ‘employees’ did not apply to claims brought by members of the armed forces, or by others who were no strictly employees such as sub-contractors.  This will exclude very many cases from the fixed success fee regime, which were previously regarded as falling within it.

One of the first appeal decisions on the new costs budgeting regime.  The court considered how past costs should be taken into account when revising and approving a budget for future costs.  The court also considered how the new definition of proportionality applies to costs budgeting.

Decision on the operation of the fixed costs regime upon the issue of a default costs certificate.  It was held that where a receiving party commences Part 8 costs-only proceedings in order to commence detailed assessment proceedings, the party can recover the assessed costs of the costs-only proceedings in addition to the fixed costs stated on the default costs certificate in respect of the commencement of detailed assessment proceedings.

Two related High Court appeals in a substantial intellectual property claim.  The first appeal considered the important issue of the proper approach to the issue of granting relief from sanction when the correct information about a CFA’s success fee had not been given in notice of funding (so that unless relief were granted the success fee is irrecoverable), under the new CPR rule on granting relief.  The second appeal concerned the correct approach to construing a CFA in order to determine whether there had been a ‘win’ as defined by the CFA.

A firm whose commercial and international practice was in part conducted from an office outside London was nonetheless entitled to claim London rates for the work done.

Costs which a respondent to an application incurred prior to the application being made, although they ultimately assisted the respondent in defeating the application, were not costs of or occasioned by the application; rather they were costs of the action.

A receiving party who redacted a certificate of insurance so that it did not record the stages of the premium which in the event were not payable, was not in breach of para 32.5(2) of the Costs Practice Direction.

It was appropriate to grant relief from sanction in respect of the lateness of the service of the certificate of insurance in circumstances where  any prejudice to the paying party could be reduced or eliminated by case management measures.

Appeal on whether a court can conduct standard basis assessment in accordance with pre-issue fixed costs regime if claim is issued to avoid that regime.

Appeal in respect of purported acceptance of Part 36 offer after striking out of statement of case.

Court of Appeal case on recovery of interest in credit hire claims.

Case considering meaning of “financial hardship” test for payment of non-funded party’s costs by the LSC.

Application for wasted costs, alleging non-disclosure.

Solicitors free to resile from promise to client to waive fees which was unsupported by consideration.

Court of Appeal case considering appropriate reduction to costs of successful defendant who had lied.

Whether CFA regulations obliged solicitors acting under Law Society’s Accident Line scheme to declare an interest in recommending the scheme’s ATE policy.

Court of Appeal decision on whether solicitors should pay wasted costs of last-minute adjournment resulting from new point.

Court of Appeal case on the distinction between profit costs and disbursements, and on the recoverability of success fees in detailed assessment proceedings.

Administrative Court judgment on appeal from the Solicitors Disciplinary Tribunal on prohibition in legal aid costs regime against solicitors “topping up”.

Proper measure of damages where victim unreasonably refused offer of amends from tortfeasor.

Court’s power to debar a party in breach of court orders from participating further in detailed assessment proceedings.