Conduct Issues affecting CostsDavid Rose
Where a party has been ordered to pay costs at the conclusion of a trial or hearing, the trial advocates should take care to raise with the judge all issues which their client wishes to advance in relation to the conduct of the opposing party which might affect the level of costs which their client ultimately has to pay. If they do not do so, then in most cases it will be impossible to rely upon such conduct subsequently upon a detailed assessment of the costs as a reason to disallow costs pursuant to CPR 44.11.
In Paul Andrews & Anor -v- Retro Computers Ltd & Ors  EWHC B2 (Costs) it was held that an application pursuant to CPR 44.11 to reduce or disallow the receiving party’s costs as a consequence of that party’s conduct should not be used as a means of contesting the trial judge’s costs order.
Deputy Master Friston held that such an application under CPR 44.11 is not a vehicle to allow the paying party to have a “second bite of the cherry” where the relevant issues were either before the trial judge or could reasonably have been brought to the trial judge’s attention.
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