Costs—Conditional fee arrangement—Costs capping order

Queen’s Bench Division, Technology and Construction Court, Coulson J, 2 Oct 2009

Where claimants are conducting a group litigation and are in possession of after-the-event insurance (ATE), a costs capping order linked to the level of cover of the ATE insurance is not appropriate under CPR 44.18; case management directions and costs assessments should be used to control costs.

Nigel Cooksley QC and John Bates (instructed by Hugh James) for the claimants. Ian Croxford QC and Thomas de la Mare (instructed by Nabarro LLP) for the defendant.

Pursuant to a Group Litigation Order (GLO), the action comprised claims for negligence and nuisance by 163 claimant households said to arise out of odour emissions from the defendant’s landfill site. The defendant sought, pursuant to CPR 44.18, an order capping the recoverable costs of the claimants if, contrary to the defendant’s case, the claimants were ultimately successful. The cap sought was by reference to the limit of the claimants’ ATE