The courts are right to restrict the amount of damages levelled against defendants, say Marcus Thomson and Neil Forsyth
A common area of dispute in civil cases is how far a claimant, who has to incur legal costs against a third party as a result of a wrong committed by the defendant and fails to recover those costs in full from the third party, can then recover them as damages from the defendant. Claimants argue that they should be compensated for those costs in full, or at least on a Solicitors Act 1974 or indemnity basis of assessment. Defendants argue that claimants should be restricted to costs recoverable on a standard basis detailed assessment. The difference can be substantial. The argument is complicated by changes in recent years to the basis of inter partes assessment of costs. Until 1986 a successful party awarded costs was normally restricted to “party and party” costs, which were defined as costs necessarily incurred. However, at this time if costs were recoverable as damages, the claimant
