News in brief – 05.07.2017

TPC holds off on costs cap for property cases

The Tribunal Procedure Committee (TPC) has decided not to take forward the idea of placing a cap on costs recoverable in leasehold and residential property cases under the “unreasonable behaviour” costs provisions in the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 and the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010.

Publishing the outcome to a consultation started last November, the TPC said that a case had not been made out for the change.

“In particular, the TPC considers that the recent guidance as to the circumstances in which the First-tier Tribunal (Property Chamber) may make an order of costs for ‘unreasonable behaviour’ provided in the Willow Court judgment [Willow Court Management Company (1985) Limited v Alexander [2016] UKUT 290 (LC)] may have the effect of significantly alleviating some of the problems identified by respondents, especially if steps are taken to publicise that guidance in a clear form to parties involved in leasehold and residential property cases.

“However, conscious of the concerns expressed, the TPC proposes to keep the matter under review and to consider in due course whether to call for further evidence in support of any such rule changes.”


Poor conduct leads to indemnity costs

Costs in a clinical negligence claim were awarded to a patient on the indemnity basis after the expiry of her part 36 offer where a mental health trust had refused the offer and then accepted it a year later, unnecessarily prolonged litigation when the patient was mentally fragile, and its general conduct of the litigation had been out of the norm.

A Lawtel report of Holmes v West London Mental Health Trust said Judge Gore QC was not persuaded of the legitimacy of the strength of the defence or the perceived lack of merit of the claimant’s case, and said the defendant should have made an offer to pay 95% of the value of damages – which was the offer eventually accepted – only on the basis that costs would be paid on the standard basis.

The Lawtel report said: “The defendant’s conduct was in issue: litigation had been very slow and it was difficult to characterise the defendant’s conduct as reasonable when it accepted the claimant’s offer one year after it had been made. It had defended the case badly, and although the claimant had not succeeded in full, she virtually had.”

Among the various failures that justified indemnity costs, the judge said, were the defendant’s expert’s failure to deal with the key issues on liability, “the defendant’s negative assessment of the prospects of defending liability demonstrated by its offers”, and the defendant’s failures to respond to offers of alternative dispute resolution.

Jeremy Hyam QC (instructed by Leigh Day) for the claimants, with Matthew Barnes (instructed by Bevan Brittan) for the defendant.


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Costs News
Published date
05 Jul 2018

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