The recent decisions reported by the Supreme Court Costs Office in cost appeals numbers 23 to 28 of 2003 highlighted several points

23 of 2003 - Valentine v Alan & Others

This appeal concerned the claimant's contention that the court should disallow the successful respondent's costs on the basis that he had unreasonably refused to mediate before the trial.

The respondent produced evidence of attempts to settle the dispute by various offers and a proposed 'round the table' meeting.

The court distinguished this case from the case of Dunnett v Railtrack Plc [2002] 1 WLR 2434; no 7 of 2002, and held that the respondents were not unreasonable in refusing to mediate, and therefore ought not to have their primary entitlement to costs reduced.

Furthermore, the court noted that in granting further permission to appeal, Lady Justice Arden had concluded that the failure to mediate was of no causal effect and that there was no jurisdiction in the full court to go behind that decision.

24 of 2003 - Dempsey v Johnstone

This is an appeal against the judge's decision that in continuing to advise the opponent that he had a good contractual claim, his solicitors had been guilty of conduct that entitled the judge to make a wasted costs order against them in respect of some of the successful respondent's costs.

The Court of Appeal set aside this decision, re-emphasising the dangers highlighted in Medcalf v Mardell [2003] 1 AC 120.

25 of 2003 - Gemma Trust v Liptrot & Forrester

The decision results from an appeal against a decision of the costs judge that, in view of solicitors' sophisticated time costing, the value element had no place in the charges for non-contentious work.

The Court of Appeal reversed this decision, reaffirming the decision in the case of Maltby v Freeman [1978] 2 All ER 913, while noting that the scale needed updating.

The decision confirmed the practice of charging for this kind of work either on an hourly basis, the basis of value, or a combination of the two, and the importance of looking at the final figure to evaluate whether it represented fair and reasonable remuneration.

26 of 2003 - McLean & Another v Woolf and Others

This appeal addressed whether costs orders were properly made against the directors of a company or the company, when receivers, appointed by the company's bankers, issued proceedings against them.

On appeal, the judge's decision to make costs orders against the directors personally was upheld.

27 of 2003 - Hill v Bailey

The issues raised by the appeal are summarised in paragraph 1 of the judgment.

Mr Justice Lightman said: 'This appeal raises questions as to the application and effect of section 11 of the Access to Justice Act 1999 and the Community Legal Services (Costs) Regulations 2000 made thereunder.

These statutory provisions apply where a party is awarded costs against an assisted person or a Legal Services Commission-funded client.

They protect the assisted person or funded client from having to pay an amount exceeding "the sum which is a reasonable one for him to pay, having regard to all the circumstances".

The principal question before me is whether they also prevent a party awarded costs from setting off those costs against costs and other sums awarded in favour of an assisted person or funded client.'

The decision was that the principle enunciated in Lockley v National Blood Transfusion Service [1992] 1 WLR 492 applied and entitled the defendant to use his costs order as a shield to defend the claim brought on the basis of the claimant's cost order.

28 of 2003 - Leigh v Michelin Tyres

The court addressed the question as to whether the claimant should be bound by the costs estimate included in the allocation questionnaire and subsequent listing questionnaire.

Guidelines were laid down in the judgment as to whether and to what extent the estimate should be taken into account at assessment of the much higher costs actually claimed.

It gave three examples of when the estimates should be taken into account.

Firstly, the estimates should provide a useful yardstick against which the reasonableness of costs finally claimed might be measured.

Where there is a substantial difference and no satisfactory explanation, the difference may be evidence that the costs are unreasonable.

Secondly, it found that if the other party could show that he had relied on the estimates in a certain way in their conduct of the case, this estimate should be taken into account.

Thirdly, if the estimate should be taken into account, the court might have considered whether a different case management decision would have been taken if the estimates had been realistic.

However, the court held that it was not appropriate simply to penalise the receiving party because the estimate was inaccurate and unrealistic.

The Supreme Court Costs Office prepares summaries of recent costs appeals, copies of which are available from the Law Society library, tel: 0870 6062511