Paul Mertens has recently represented the successful appellant in an appeal against costs orders that were expected to total more than £54,000.
Paul successfully argued that the Judge at first instance had been wrong to order that costs should be assessed on an indemnity basis, in circumstances in which the appellant had not accepted two relevant ‘Calderbank offers’ (i.e. offers that were ‘without prejudice save as to costs’) and which, importantly, were not made under CPR Part 36.
Drawing on the guidance from the Court of Appeal in Kiam v MGN Ltd (Costs)  1 WLR 2810 and the more recent application of the principle in Astex Therapeutics Ltd v Astrazeneca AB  EWCA Civ 2444, it was argued that the Judge had misdirected himself on the correct approach to ‘without prejudice’ offers under CPR Part 44.3, having applied by analogy the costs consequences of a failure to beat an offer under Part 36. Arguments were also made concerning the Court of Appeal’s recent decision in Lejonvarn v Burgess  4 WLR 43.
Unusually, Paul also successfully argued that the Judge had been wrong to award pre-judgment interest at a rate of 6%. Referring to the well-established principles in Tate and Lyle Food and Distribution Ltd v Greater London Council  1 WLR 149, it was demonstrated that the Judge had failed to consider what it would have cost the Claimant to borrow the sums owed on the commercial market and had wrongly applied a rate of interest by reference to the post-judgment debt rate.
For further information on Paul’s Costs practice or to instruct him, please contact our clerks through the switchboard on 020 7353 0711 or via email: firstname.lastname@example.org.