News in brief – 12.04.2018

Bacon on the bench

Leading costs silk Nick Bacon of 4 New Square has been appointed as a Recorder (Crime) for the Midland Circuit. The appointment is part-time and took effect last week. He was one of 133 Recorders out of almost 2,500 applicants appointed recently.


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CAT highlights importance of issues-based costs orders

The Competition Appeal Tribunal has said that the policy behind issues-based costs orders – “to discourage a ‘kitchen sink’ approach to litigation” – applies with “equal or even greater force to appeals challenging regulatory decisions” as it does to commercial litigation.

In British Telecommunications v Office of Communications [2018] CAT 1, the tribunal – chaired by Mr Justice Snowden – said: “Appeals such as the instant case tend to involve the appellants mounting wide-ranging challenges to a regulatory decision, and the potential for adverse costs orders to have a chilling effect upon regulators would be significantly greater if appellants could proceed on the basis that if they were successful overall they could recover all of their costs, even on issues upon which they had failed.

“Accordingly, while we do not think that the chilling effect argument should displace the starting point that costs follow the event, we do think that it can be a relevant factor in persuading the tribunal, in an appropriate case, to depart from the starting point and have regard to the success or failure of the parties on individual issues.”

The CAT said that, “for reasons of practicality to facilitate the detailed assessment of costs”, such orders should ideally require one party to pay a proportion of the costs of the other. “This will avoid the need for the assessing judge to have to assess the costs of more than one party and to have to allocate each item of costs to one or more issues.”

It continued: “In principle, it is not wrong to allow a party who wins on his first line of attack to recover not only the costs of his first line of attack, but also the costs of his secondary lines of attack, even if the court has not been required to rule upon those secondary points. On the other hand, the court should be alive to the risk of injustice if a party can recover substantial costs on points which might not have succeeded if the court had determined them.

“Whether it is appropriate that the costs of the secondary lines of attack which were not determined should follow success on the first line of attack will depend upon all the circumstances of the case.”


Picture credit: Jacob

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Costs News
Published date
12 Apr 2018

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