Ben Smiley

“Intelligent, good drafting and frank advice. Costs is a speciality.” – Legal 500, 2023

“Diligent and thorough in the work undertaken and was approachable in his manner.” – Legal 500, 2022

“Extremely effective on his feet and robust in shepherding the opponent’s submissions.” – Legal 500, 2021

“A good advocate, and a rising star.” – Legal 500, 2020

Ben’s practice includes consideration of a wide range of issues concerning costs.  He is ranked as a “Leading junior” in the Legal 500 2019 in respect of costs.

He has acted or advised in respect of assessments, applications and appeals concerning a range of topics including the following:

• Litigation funding in the high Court and the Competition Appeal Tribunal
• The impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”)
• Costs management orders
• The construction and enforceability of CFAs
• The recovery of costs under s.51 of the Senior Courts Act 1981 from non-parties and legal representatives
• The determination of costs against a publicly funded individual and the Legal Services Commission
• The award and assessment of costs in respect of interim applications and trials
• Solicitor-client disputes concerning costs

Featured Costs cases

• Gormsen v Meta Platforms, Inc. and Others: Ben acts for the claimant in respect of litigation funding and cost issues arising in this multi-billion pound claim in the Competition Appeal Tribunal.
• Davey v Money: Ben acted for the receiving parties in a successful claim for a non-party costs order from the professional funder of the defeated claimant. The case disapplied the so-called “Arkin cap”, so that the funder was liable for all the receiving party’s costs, not merely an amount equal to the funding which it had provided. The Court of Appeal upheld the position in favour of Ben’s client and arguably revolutionised the quantification of non-party costs orders against commercial funders.
• RBS Action Group Ltd v Signature Litigation LLP; Ben was led by Nicholas Bacon KC in a complex dispute between a company and its former solicitors in respect of various issues arising from substantial litigation. The case concerned fundamental points relating to existence enforceability and terms of conditional fee arrangements.
• Complex wasted and non party costs order claim; Led by Ben Elkington KC and Nicholas Bacon KC, Ben acted for the defendant solicitors to a claim for a wasted costs order and/or a non-party costs order and/or damages arising from the allegedly misrepresenting the extent of ATE insurance cover in place for test claimants in large scale group litigation.
• Wasughe v Sullivan; A detailed assessment involving interesting issues regarding the recoverability of costs prior to a claim, and in particular whether the claimant receiving party had acted reasonably when it had been communicating with the wrong party and had not complied with the practice direction or pre-action protocol.
• Eager v TC Cleaning; Ben successfully represented the appellant in respect of an application to dismiss a Pt 8 costs claims on grounds of prematurity. The first instance decision, refusing to dismiss the claim, was overturned.
• Solicitor-client assessment; Ben represents solicitors and clients in respect of such assessments. On this occasion, he acted for the firm, and successfully argued that the invoices raised were “statute bills”, such that a substantial part of the claim was out of time.
• Late acceptance of Pt 36 offer by defendant; Ben has acted in several cases concerning the proper treatment of late acceptance of a Pt 36 offer by a defendant, following the confusion at County Court level arising from Sutherland v Khan. Ben has acted on both sides of the argument, and successfully persuaded the court (on different occasions) that Sutherland v Khan was rightly and wrongly decided.