MIL Collections Limited v My Shop 4 Ltd & Ors [2025] EWCC 38

[2025] EWCC 38Case No M1QZ8669
IN THE COUNTY COURT AT TRURO
Date 4 July 2025
Courts of Justice, Edward St, Truro TR1 2PB
Before
DJ Field
Between
MIL Collections LimitedClaimantMy Shop 4 LtdDefendantsand 12 others
John Craggs (instructed on a direct access basis) for ClaimantDefendants 1 – 11 acting as litigants in person for in personQasver Khan (instructed by Athena Solicitors LLP) for Defendants 12 and 13Hearing Hearing date: 21 May 2025(followed by written submissions and a non attended hearing on 27 June 2025)
Approved JudgmentThis judgment was handed down remotely at 10.00am on 4 July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives

DJ Field:

[1]This is a judgment on the issue on costs following a hearing on 21 May 2025 at which I determined that the Claimant’s claims against the above 13 Defendants had been automatically struck out for non-compliance with an unless order dated 28 April 2025.[2]Before turning to address the issues to be determined in this judgment, I set out the background to this litigation which forms the context in which this judgment is being given. Much of the background section to this judgment is taken from my note of the ex tempore judgment given at the hearing on 21 May 2025. Background[3]The Claimant is a company whose business includes the purchase and recovery of debts. In or around late 2024, the Claimant purported to take an assignment of certain debts owing by commercial entities to E.on Next Energy Ltd (‘Eon’). The size of those debts range from a few hundred pounds to in excess of £60,000.[4]After taking that assignment, the Claimant began issuing claims in the County Court to recover those debts. Because those debts are claimed from commercial entities and the Claimant’s place of business in Truro, they have been transferred, piecemeal, from the County Court Bulk Centre to the County Court at Truro.[5]In each case the short form Particulars of Claim are materially identical: “Breach of contract. Failure to resolve outstanding liabilities owed by the Defendant for services supplied by E.on Next Energy Ltd and was assigned to the Claimant MIL Collections Ltd on 6 December 2024. A Notice of Assignment and Letter of Assignment have been sent by the relevant parties. The Defendant received goods/services Supply Address [AS APPLICABLE] Between the dates: [AS APPLICABLE]. The Claimant has contacted the Defendant multiple times to resolve and sent a Letter Before Action in accordance with the Pre-action protocol on [AS APPLICABLE]. Late payment of commercial debt fee £100.00 added. And the Claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8%...” (sic).[6]Once it became apparent that there were a large amount of these claims being issued, and that they may raise substantive and procedural points which would be common to some or all of the claims, the decision was taken that in order to ensure consistency and that the claims were managed in accordance with the overriding objective, new claims would be triaged by myself giving the initial case management order.[7]It was of note when reviewing these cases that, in many instances, the Defendant denied being a relevant customer of Eon or having any contract with Eon. Some Defendants expressly raised that the scant detail in the Particulars of Claim prevented them from meaningfully responding to the claim.[8]Starting on around 28 February 2025, I began making orders in these claims in the following terms: “1. The Claimant shall file and serve further and better particulars of claim by 4pm on [14 DAYS] to comply with Civil Procedure Rule 16.4(1) and paragraphs 7.3 - 7.5 of Practice Direction 16 so that:a. They contain a concise statement of the facts relied which are said to give rise to the alleged liabilities from the Defendant to the E.ON Next Energy Limited and to particularise those liabilities with reference to invoices and invoicing periods;b. They state whether the claimant relies upon a written contract between the Defendant and E.ON Next Energy Limited and attach a copy of that contract or the documents constituting that agreement;c. They state whether the claimant relies upon an oral agreement between the Defendant and E.ON Next Energy Limited and set out the contractual words used and state by whom, to whom, when and where they were spoken;d. state whether claimant relies upon an agreement by conduct (including any deemed contract said to arise under stature) and specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done.[2]Unless the Claimant complies with paragraph 2 of this order, the claim shall be struck out without further order.”a. They contain a concise statement of the facts relied which are said to give rise to the alleged liabilities from the Defendant to the E.ON Next Energy Limited and to particularise those liabilities with reference to invoices and invoicing periods;b. They state whether the claimant relies upon a written contract between the Defendant and E.ON Next Energy Limited and attach a copy of that contract or the documents constituting that agreement;c. They state whether the claimant relies upon an oral agreement between the Defendant and E.ON Next Energy Limited and set out the contractual words used and state by whom, to whom, when and where they were spoken;d. state whether claimant relies upon an agreement by conduct (including any deemed contract said to arise under stature) and specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done.[9]I have since made that order, or variations upon it, in some 50 or so claims brought by the Claimant.[10]By late April 2025, it came to my attention that a large number of the Defendants were co-ordinating their resources to some extent and that they were filing an identical defence. That defence contends inter alia that:a. The Particulars of Claim were deficient;b. The Defendant was a customer of Eon pursuant to a deemed contract under statute;c. The terms of the deemed contract limited Eon to charging a certain rate of electricity; and thatd. The Claimant is seeking to recover sums in excess of those which Eon was entitled to charge under contract.[11]The 13 Defendants in this case all put forward that defence. The claims against each of them are in excess of the Fast Track threshold and so I took the decision to consolidate these claims and made an order to that effect on 28 April 2025. The total value of the 13 consolidated claims is around £335,000.[12]The order consolidating these Fast Track claims contained the provision requiring the Claimant to file Amended Particulars of Claim by 13 May 2025, supported by an unless order as I have already quoted from. It listed the consolidated claim for a two-day trial before a Circuit Judge on a date to be advised.[13]A further block of 8 Small Claims Track cases where the Defendants all adopted the same Defence were also consolidated separately.[14]It has since become apparent that in total there are around 65 cases in which the defendants adopt the same Defence.[15]The directions given to trial were tight in order to allow the points of principle to be determined by a Circuit Judge at the consolidated trial, in advance of the trial of the consolidated small claims and the trials of a number of other similar claims that had already been listed prior to the identification of the common themes running through these cases.[16]The order dated 28 April 2025 allocated the consolidated claim to the Fast Track, Band 1 and recorded that “the court notes that, since the claims are consolidated and will be listed for in excess of 1 day, there may be exceptional grounds upon which more than the fixed costs provided for under Table 12 of PD 45 may be awarded.”[17]On 13 May 2025, the Claimant did file Amended Particulars of Claim. I reviewed those Amended Particulars of Claim on 15 May 2025 and formed the preliminary view that they were deficient and that the unless order had not been complied with. In particular, I did not consider that they set out a concise statement of the facts which the Claimant would need to prove in order to succeed in its claim, including:a. The facts which are said to render the Defendants a party to a deemed contract pursuant to paragraph 3(2) of Schedule 6 of the Electricity Act 1989;b. The amount of electricity said to be consumed during the relevant period under the deemed contract;c. How that electricity usage has been calculated;d. The sums which Eon of the debt was entitled to charge for that electricity consumption with reference to the applicable contractual terms; ande. When those sums fell due and were demanded pursuant to the applicable contractual terms.[18]I listed the case for an urgent hearing on 21 May 2025 to consider whether the claim had been or should be struck out. In the intervening period, the court sent out a notice dated 19 May 2025 that:
“Further to the order dated 28 April 2025 The trial of the above claim will take place at 10.30am On 14 and 15 July 2025”
.

The trial of the above claim will take place at 10.30am

[19]Until 19 May 2025, all parties to the litigation had been acting as litigants in person. However, on 19 May 2025, Athena Solicitors LLP filed a notice of acting to confirm they had been instructed by the 12th and 13th Defendants.[20]At the hearing on 21 May 2025, the Claimant was represented by direct access counsel, Mr Craggs. The 12th and 13th Defendants were represented by Mr Khan. Five of the remaining Defendants attended in person. A Mr Askew, who is an energy consultant for the Defendants and has been assisting in co-ordinating the Defence, also attended.[21]At the hearing on 21 May 2025, the Claimant accepted that there had been a breach of the unless order and that, as a consequence, the claim had been automatically struck out on 13 May 2025. The Claimant made an application for relief from sanction on the evening of 20 May 2025. The majority of the hearing on 21 May 2025 was therefore concerned with the application for relief.[22]I gave an ex-tempore judgment dismissing the application for relief with reference to the familiar three stage test in Denton. So far as it may be relevant to decision I now need to make in respect of costs, I found that the breach of the unless order was serious and that there was no good reason for the breach. In considering all the circumstances of the case, amongst other things, I held that the following was particularly relevant (taken from my note of the ex tempore judgment):
“Where a statement of case is found to be defective, the court should consider whether that defect might be cured by amendment and, if it might be, the court should refrain from striking it out without first giving the party concerned an opportunity to amend (Soo Kim v Youg [2011] EWHC 1781 (QB)). However, the Claimant has already been given an opportunity to amend and these are the Amended Particulars of Claim which it has produced. The Claimant now seeks to amend again to meet the further deficiencies found. The judgment in the case of Magdeev v Tsvetkov [2020] EWHC 887 cautions against giving permission to amend in circumstances where there is no draft of the proposed amendments before the court. That is plainly right. Without a draft of the proposed amendments the Defendant is deprived of the opportunity to meaningfully consider and respond to the application (including in respect of the extent to which those amendments would have real prospects of success); and the court is deprived of reasoned argument on this issue from both sides. … Perhaps most important however is why this position has arisen. The Claimant has chosen to embark on proceedings without first undertaking even cursory preparation for that litigation. On its own evidence, several months after issuing proceedings it is itself unable to say the terms of the contract it is suing upon, the amount of electricity said to have been consumed under that contract, the appropriate charging rate or the terms which are said to have been breached.”
[23]At the conclusion of the hearing, the Defendants made the following applications for costs:a. The 12th and 13th Defendants sought their costs of the hearing as being costs of the failed application for relief from sanctions;b. The 12th and 13th Defendants each sought fixed costs pursuant to CPR 45.44 and Table 12 of PD45 following the strike out of the claim;c. The 1st to 11th Defendant each sought two thirds of the fixed costs in Table 12, pursuant to CPR 45(2)(a).[24]The costs of the application for relief were dealt with during the hearing on 21 May 2025.[25]Due to a shortage of time at the conclusion of the hearing, with the agreement of the parties, I directed that there be written submissions on the remaining costs applications so that I could then determine these on paper. I directed that the submissions should address the following issues which had been raised by the parties at the conclusion of the hearing:a. The extent to which the fixed costs provisions apply at all in relation to a claim which is struck out;b. The applicable amount of fixed costs (it not being clear whether the appropriate stage in Table 12 of Practice Direction 45 is determined by reference to the order for a trial date or by reference to the trial being actually listed);c. Whether, where there is more than one defendant, each defendant is entitled to recover fixed costs in their own respect.d. Any entitlement to fixed costs in respect of unrepresented parties.[26]I adopt these issues as the structure for this judgment and address them in turn. A. Do the fixed costs in Table 12 PD45 apply where a claim is struck out pursuant to an Unless Order[27]It is common ground that since this is a debt claim that was issued after 1 October 2023 and was allocated to the Fast Track, the fixed costs regime contained in CPR 45, Part VI applies in principle.[28]CPR 45.44 provides: “… the only costs allowed in any claim which…is allocated to the Fast Track are: a) The fixed costs in Table 12; and b) The disbursements as set out in Section IX of this Part[29]Table 12 sets out the costs to be awarded in Fast Track cases ,with the reference to the band to which the claim was assigned and the stage at which the proceedings conclude.[30]This claim was assigned to Band 1 of the Fast Track. So far as is relevant for the purposes of this judgment, the stages referred to in Table 12 are:a. A. If Parties reach a settlement prior to the claimant issuing proceedings under Part 7 … (3) Where damages are more than £10,000 £599b. B. If proceedings are issued under Part 7, but the case settles or is discontinued before trial … (2) On or after the date that the court allocates the claim under Part 26, but before the date that the court lists the claim for trial £2,581 (3) On or after the date that the court lists the claim for trial but before trial £3,923c. C. If the claim is disposed of at trial £3,923[31]CPR 45.48 deals with how the Fast Track fixed costs regime applies in relation to “preliminary issues”:
“Where a costs order is made in favour of a party in respect of a preliminary issue, that party is entitled to the fixed costs in Table 12 for the stage applicable at the date the preliminary issue is concluded, together with such disbursements as are allowed in accordance with Section IX of this Part”
[32]CPR 45.8 deals with the costs of pre-action and interim applications:
“Where, in any claim to which Section VI [Fixed costs in the Fast Track], Section VII or Section VIII of this Part applies, the court makes an order for the costs of a pre-action or interim application, the costs which a party may be allowed are those set out in Table 1, together with any appropriate court fee”
[33]So far as is relevant, Table 1 provides that the fixed costs payable in an interim application in a Fast Track, Band 1 claim, other than an application for summary judgment, are £333. In a summary judgment application the fixed costs are £750.[34]As is expressly provided from in CPR 45.1(2)(c), the court’s discretion under CPR 44.2(6)(a) to order that a party pay’s a proportion of the another party’s costs applies equally in respect of claims with the fast track costs regime.[35]The Claimant’s position is that Table 12 does not apply in circumstances in which this claim has concluded. In particular, the Claimants states that there has been no settlement, discontinuance or disposal at trial, and as such there is no applicable stage within Table 12. It contends that, to the extent fixed costs apply at all, Table 1 substantially covers the circumstances in which this claim has concluded, namely by automatic strike out.[36]The Defendants’ position as articulated by counsel for the 12th and 13th Defendants, is that the reference in Table 12(B) to “settles or discontinues” is a non exhaustive list of circumstances in which a claim may conclude. It states that it would be an “absurdity” if a party whose case is struck out would escape liability for costs which would have flowed from, for instance, a discontinuance.[37]Further, counsel for the 12th and 13th Defendants submits that the Claimant’s position is incompatible with the drafting of the rules. In particular they argue that if the list of circumstances in Table 12(B) were an exhaustive list, then CPR 45.48 concerning costs where there is a trial of preliminary issue, would be deprived of meaning. They say that following a trial of a preliminary issue there would would have been no settlement, discontinuance, and so there would be no applicable stage in Table 12.[38]I shall start by addressing the contention that the applicable table is Table 1. I do not accept that submission. CPR 45.8 concerns orders that the court might make for costs “of a pre-action or interim application” (emphasis added) as distinct from any other costs award which might be made in respect of the claim more generally. Where in a Fast Track claim a party successfully applies for summary judgment, they would be entitled to the costs of that application as set out in Table 1 together with their costs of the claim as calculated with reference to Table 12. The costs in Table 1 are additional costs which a party is entitled to, to reflect the additional work generated by interim applications.[39]Having concluded that Table 1 is of no application to the costs which should be awarded following the automatic striking out of the claim, I need to address whether and how Table 12 applies.[40]I do not accept the Claimant’s submission that Table 12(B) contains an exhaustive list of the circumstances in which it applies. The extension of fixed recoverable costs to the Fast Track was a significant and ambitious change to the way in which costs are dealt with in Fast Track cases. There is a broad and varied range of claims which may proceed in the Fast Track, including simple debt claims, boundary disputes, personal injury claims, professional negligence claims and building disputes. Whilst those drafting the rules have clearly gone to extensive efforts to ensure that the fixed costs rules and Practice Direction address most circumstances and permutations, it cannot have been expected or intended that they would expressly deal with every possible circumstance which might arise in such a wide range of cases. The rules must be construed widely and purposefully.[41]As is observed in Cook on Costs 2025 3rd Ed at [12.11], “The intention underlying fixed costs is to provide an agreed scheme of recovery that is certain and easily calculated by providing fixed levels of remuneration”. As is clear from the reports of the Right Honourable Lord Justice Jackson on the Review of Civil Litigation Costs, in addition to providing simplicity and certainty, the further purpose behind the fixed recoverable costs regime was that such costs should be kept proportionate.[42]Adopting a wide and purposive construction of Table 12, I consider that the words “settles or discontinues” in 12B should be read to mean any means by which the case might conclude after the issue of proceedings but before trial, including strike out (whether automatic, of the court’s own motion, or following an application by a party).[43]Given the that the very purpose of the fixed recoverable costs regime was to provide predictability and certainty, it would be contrary to that purpose if in some cases it would be necessary for there to be a summary assessment of costs, simply by reason of the manner in which those proceedings have concluded.[44]Were the fixed costs provisions not to apply in circumstances where a claim is struck out, it would lead to arbitrary results including that:a. Where a Claimant fails to pay a hearing fee leading to an automatic strike out under CPR 3.7(A1)(7) and a deemed costs order under CPR 44.9, there would be no applicable fixed costs provision;b. A Claimant might be in a better position were it to fail to file a directions questionnaire or to pay a hearing fee (leading to an automatic strike out) than if it were to discontinue a claim; andc. The court might be deterred from making unless orders with a striking out sanction to secure compliance, since it could be potentially prejudicial to the innocent party if the sanction were engaged.[45]In the circumstances, I am satisfied that where a claim is struck out before trial a Defendant is entitled to their fixed costs under Table 12(B) with reference to the stage of proceedings at which the strike out took effect. B. What is the applicable stage under Table 12?[46]As summarised in Cook on Costs 2025 3rd Ed at [27.13] “Once a case has been issued… There are 4 … stages. The first 3 are contained in section B [of Table 12] and are:(1) up to allocation;(2) from allocation up to listing for trial;(3) after listing but before the trial. The fourth stage is contained in section C and is reserved for cases which reach trial.”[47]The relevant chronology in the instant case is as follows: 28 April 2025:Order allocating the claim to the Fast Track and ordering that “the trial of this claim shall take place on the first available date (to be advised by separate order) after 24 June 2025 with a provisional time estimate of 2 days” 13 May 2025: Claim automatically struck out pursuant to the unless order 19 May 2025:Notice listing the case for trial on 14 and 15 July 2025[48]The 12th and 13th Defendants draw a distinction between the “listing” of a trial and the “fixing” of a trial. They refer by analogy to paragraph 6.58 of the Chancery Guide:
“Trials are normally listed with a commencement date floating within a 3-5 day period, referred to as a trial window, but the court may (exceptionally) consider listing the trial for a fixed start where certain criteria are met. These will include such matters as the length of the trial, the number of parties and witnesses, and the need for parties or witnesses to travel from abroad to attend trial”
[49]The difficulty with that submission is that in the vast majority of Fast Track cases, the first case management order will provide for both allocation and provision for the trial to be listed either within a window or on the first available date after a particular date. Indeed the standard orders produced by the damages claim portal and the online money claims portal are drafted in this way.[50]Were this’ submission to be correct, it would be mean that in the vast majority of cases the stage between allocation and listing would be non existent. That cannot have been the intention of those drafting PD45. The increase in fixed costs between stage B(2) and B(3) must be intended to reflect that it is roughly between the allocation order and the notice of trial that the parties be undertaking work on disclosure and witness evidence and so on.[51]I consider therefore that, in the circumstances of this case, the trial was listed on 19 May 2025 and the case concluded by automatic strike out before that date, on 13 May 2025. As such, the applicable stage in Table 12 is B(2). C. Multiple Defendants[52]CPR 45 Part VI is, unfortunately, somewhat ambiguous as to whether, where there are multiple Defendants, there is an entitlement to multiple sets of fixed costs.[53]The position where there are multiple Claimants is dealt with expressly in CPR 45.5 which provides that each Claimant is entitled to their scale costs for each party unless:a. The claim is one to which the parties are jointly entitled and there has been an order for joinder under CPR 19.3; orb. Where the same firm acts for more than one Claimant and the court makes an order on allocation that the additional Claimants are only entitled to 25% of the fixed costs.[54]CPR 45.54, which relates to noise induced hearing loss claims only, makes express references to cases in which there are multiple Defendants. However that rule only addresses the circumstances in which the Claimant may be entitled to an uplift of its costs on account of the multiplicity of Defendants, and the apportionment of the liability for fixed costs between Defendants:
“(1) In Table 15, the reference to the number of defendants is to the number of active defendants against whom the claimant obtains a settlement or an award of damages. (2) Where the defendants have all admitted liability and coordinate settlement between them, only one set of Stage 2 costs is allowed. (3) Where at least one defendant admits liability and settles pre-litigation and at least one defendant denies liability— (a)the fixed costs payable by those defendants who have admitted liability are 100% of the stage 2A or 2B costs for those defendants as appropriate; and (b)Stage 3 and any subsequent stages shall apply to the remaining defendants, provided that the claimant must give credit for the costs already payable under (a), so that the maximum entitlement under any stage is for the applicable stage costs.”
(emphasis added). (a)the fixed costs payable by those defendants who have admitted liability are 100% of the stage 2A or 2B costs for those defendants as appropriate; and (b)Stage 3 and any subsequent stages shall apply to the remaining defendants, provided that the claimant must give credit for the costs already payable under (a), so that the maximum entitlement under any stage is for the applicable stage costs.” (emphasis added).[55]The rule in CPR 45.54 concerning the entitlement of multiple Claimants to multiple lots of fixed costs was a modification to the case law which emerged from Section IIIA in the previous version Part 45 (now appearing at Part 45x in the 2025 edition of the White Book.) In the case of Melloy & Anor v UK Insurance Ltd [2022] EW Misc 4 (CC), HHJ Glenn held that where there were two or more Claimants in a claim proceeding under Part IIIA of the former Part 45, each Claimant was separately entitled to fixed costs under that part. He reached that conclusion “from a construction of the relevant Rules against the context of the purposes of the Protocol and the fixed costs regime”.[56]Since those drafting the new Part 45 chose not to expressly address the fixed costs entitlement of the multiple Defendants (as they have done with Claimants), the correct approach is that which was undertaken by HHJ Glenn in Melloy: to read the relevant rules in the context of the purpose of the extended fixed recoverable costs regime.[57]CPR 45.1(3) provides that the court cannot make an award which is less than or more than the fixed costs in PD45, save where it makes an order in the form contemplated by CPR 44.2(6)(a) (i.e an order that a party pay a proportion of another party’s costs). Beyond that exception and any other exceptions expressly set out in Part 45 the court may only award the fixed costs.[58]There is nothing within the wording of CPR 45.44, 45.45 nor Table 12 which can fairly be read to indicate one way or the other as to whether in multi-Defendant cases each Defendant should be entitled to fixed costs.[59]The answer therefore must be drawn from the following principles:a. If the rule makers intended to deviate substantially from principles which would ordinarily apply in respect of costs, this would be dealt with expressly in the rules;b. CPR 45.44, 45.45 and Table 12 should be read in the context of the remainder of Part 45 and PD 12; andc. So far as is possible, CPR 45.44, 45.45 and Table 12 should be read in a way which is consistent with the purpose of the Fast Track fixed costs regime, being to provide a means to quantify costs entitlementthat is certain and easily calculated and which limits recoverable costs to those which are proportionate.[60]Taking those principles in turn:a. Outside of the fixed recoverable costs regime, where a claim is unsuccessful and there are multiple Defendants, the general rule would be that each Defendant should be awarded their costs of the proceedings. There is nothing in the CPR 45 or PD45 which would expressly disapply that general approach.b. Whilst CPR 45.54 does expressly provide for the circumstances in which multiple Claimants may be restricted to one set of fixed costs, there is no equivalent provision for Defendants. Had those drafting the rules intended that multiple Defendants should share a single entitlement to fixed costs (or similar) then an equivalent provision would have been included within the rules.c. Whilst allowing each Defendant to recover the fixed costs in Table 12 increases costs and therefore risks costs becoming disproportionate, leaving a discretion or ambiguity as to whether multiple defendants (who may be separately represented and have opposing interests) will each have an entitlement to fixed costs would be contrary to the purpose of providing certainty and simplicity.[61]In my judgement, having regard to the above, in a case to which Part VI of Part 45 applies in which there are multiple Defendants, each Defendant is entitled to their fixed costs as set out in Table 12 of PD45, subject to the court’s discretion to make an order under CPR 44.2(6)(a) that a party pay only a proportion of another party’s costs.[62]Whilst not expressly stated within Part 45, it must be that in deciding whether to make an order for a party to pay only a proportion of another party’s costs, the court should take into account those matters in CPR 44.2(4), namely:
“all the circumstances, including – (a) the conduct of all the parties; (b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and (c) any admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer to which costs consequences under Part 36 apply.”
[63]I do not consider that the fact that an award of two sets of fixed costs might produce a windfall for the Defendants is a relevant circumstance which should carry significant weight. As HHJ Glenn held in Melloy, “Whilst that may be so, it is of the essence of any fixed costs regime that there will be swings and roundabouts. The outcome cannot inform the construction except in the most exceptional case”.[64]Much more relevant in my judgment are the following circumstances and matters of conduct:a. The claims began as separate claims by the Claimants and were only consolidated as a result of an order of the court’s own motion for reasons of efficient case management as described earlier in this judgment;b. When issuing each of those claims, the Claimant will have been aware that in the event the claims were unsuccessful, it would be liable for the Defendants’ fixed costs in each of those claims; andc. The court could have ordered that the case should be case managed and tried together, rather than that they be consolidated. In these circumstances fixed costs would undoubtedly have been payable to each successful Defendant. It would be arbitrary if there were substantially different consequences depending on whether the claims had been consolidated or simply case managed and tried together; andd. The claims have been struck out for breach of an unless order. At its core, the reason that the unless order was made, that it was breached, and that the application for relief was refused was that the Claimant chose to embark upon this litigation at a time when it held insufficient information and documents to undertake any form of assessment of the merits of the claims or to properly plead those claims. Such conduct militates against the making of an order under CPR 44.2(6)(a) to alleviate the consequences of the fixed costs regime.[65]Taking those circumstances and conduct into account, I am satisfied that the appropriate order is that each Defendant is entitled to an award of costs in its favour to reflect the general rule that an unsuccessful party shall pay the successful party’s costs. D. Unrepresented Defendants[66]Having concluded that each successful Defendant is in principle entitled to its costs of the claim, it is necessary to consider CPR 45.4 which deals with the position of litigants in person. It provides as follows:
“(1). This rule applies to any claim where— (a). costs are payable under Section VI, Section VII or Section VIII of this Part; and (b) the party in whose favour the costs order is made is at any stage a litigant in person. (2). Where this rule applies— (i)where a party is a litigant in person throughout the entire claim, the costs allowed under this rule shall not exceed, except in the case of a disbursement, two-thirds of the fixed recoverable costs which would have been allowed under Section VI, Section VII or Section VIII if the litigant in person had been represented by a legal representative; (ii)for any stage in Table 12, Table 14 or Table 15 during which the party is for any period a litigant in person, the costs allowed for that stage shall not exceed two thirds of the costs so specified; and (iii)for any stage in Table 12, Table 14 or Table 15 during which a party is represented by a legal representative for the entire stage, the fixed recoverable costs shall apply as set out in sub-paragraph (b), provided that the total amount of costs to be allowed shall not exceed the costs which would have been allowed if the litigant in person had been represented by a legal representative for the entire claim;”
[67]The claim was struck out automatically on 13 May 2025. As a result the costs are being assessed with the reference to the state of proceedings as at that date. On that date all of the Defendants were acting as litigants in person.[68]As a consequence, each Defendant is entitled to up to two thirds of the costs specified in Table 12(B)(2), namely £1,720.67. That is a limit and not a fixed entitlement is clear from the use of the words “shall not exceed” in CPR 45.4(2) and as was addressed in the judgment of DHCJ Ter Haar KC in A & V Building Solution Limited v J&B Hopkin Limited [2024] EWHC 2914 at paragraph 128.[69]The result is that, notwithstanding that one of the purposes of the fixed costs regime was to simplify and provide certainty to the quantification of costs, because all of the Defendants were litigants in person at the relevant date, it is necessary to carry out an assessment of the costs which each of the 13 Defendants are entitled to pursuant to CPR 46.5.[70]CPR 46.5 provides that:
“(3)The litigant in person shall be allowed – (a) costs for the same categories of – (i) work; and (ii) disbursements, which would have been allowed if the work had been done or the disbursements had been made by a legal representative on the litigant in person’s behalf; (b) the payments reasonably made by the litigant in person for legal services relating to the conduct of the proceedings; and (c) the costs of obtaining expert assistance in assessing the costs claim. (4) The amount of costs to be allowed to the litigant in person for any item of work claimed will be – (a) where the litigant can prove financial loss, the amount that the litigant can prove to have been lost for time reasonably spent on doing the work; or (b) where the litigant cannot prove financial loss, an amount for the time reasonably spent on doing the work at the rate set out in Practice Direction 46 [£19.00 per hour].” (i) work; and (ii) disbursements, which would have been allowed if the work had been done or the disbursements had been made by a legal representative on the litigant in person’s behalf; (b) the payments reasonably made by the litigant in person for legal services relating to the conduct of the proceedings; and (a) where the litigant can prove financial loss, the amount that the litigant can prove to have been lost for time reasonably spent on doing the work; or (b) where the litigant cannot prove financial loss, an amount for the time reasonably spent on doing the work at the rate set out in Practice Direction 46 [£19.00 per hour].”
[71]In relation to the 12th and 13th Defendants, this can be dealt with very simply. Although they were acting as litigants in person as at the date of strike out, the witness statement of Mr Boyd of Athena Solicitors LLP confirms that prior to that time his firm had been acting for the 12th and 13th Defendants by assisting in the drafting of the Defendant and working on an Amended Defence to the Amended Particulars of Claim. By the statement of costs signed by Mr Boyd and dated 20 May 2025, he confirms that the 12th and 13th Defendants are each liable to pay his firm fixed costs pursuant to Table 12 in the sum of £3,923.00.[72]These are reasonable costs for legal services related to the conduct of the litigation and are therefore allowable under CPR 46.5(3)(b), subject to the cap of £1,720.67 referred to above.[73]The position in relation to Defendants 1-11 is far less straight forward. There is no evidence that any of these Defendants have paid or are liable to pay any sums to Athena Solicitors LLP or any other firm of solicitors. Nor is there:a. Any evidence of financial loss incurred by these Defendants in responding to the litigation; andb. Any statement of costs or similar schedule setting out the time which they have spent engaging with this litigation[74]Although there is no witness statement to this effect, it is understood and is apparent from the court file that the Defendants have been assisted by a Mr Simon Askew in co-ordinating their response to the claim and dealing with the litigation. Mr Askew describes himself and his role in these proceedings and the other linked claims in the following terms: “6…I am a lay representative and have been assisting each of the 11 Defendants (and previously the 12th and 13th Defendants prior to their appointment of solicitors and Counsel). I am not acting on a pro bono basis. I am a professional consultant specialising in the energy industry, including applicable laws, regulations and charging structures. My company is Business Energy Direct (UK) Limited and I have over 25 years industry experience. I specialise in advising business customers with energy brokerage and cost benefit analysis.[5]It follows that, as a professional, as the Court would expect, I charge for professional services.[6]By way of background, I am engaged not only by the Defendants but by numerous other small and medium businesses who are in dispute with E.ON regarding alleged overcharging applied to their electricity accounts, including assisting in formulating a super complaint that has been sent to the Regulator (OFGEM)”.[75]There are a number of issues which I arise from these paragraphs:a. Although Mr Askew describes himself as a “lay representative”, since these claims are proceeding in the Fast Track, rather than the Small Claims Track, there is no right for a party to be represented by a lay representative (per The Lay Representatives (Rights of Audience) Order 1999). The court has not made an order granting Mr Askew rights of audience pursuant to the Legal Services Act 2007.b. Although Mr Askew states that he is not acting pro bono and that he charges for professional services, he does not give details of charges, how they are calculated or the work which is chargeable.c. In any event, payments other than for legal services relating to the conduct of proceedings or expert assistance on the costs of the claim are not permitted under CPR 46.5. Since Mr Askew is not an Exempt or Authorised Person under the Legal Services Act 2007, he cannot lawfully provide or charge for regulated legal activities, which would include legal services relating to the conduct of the litigation.[76]In the circumstances, any sums which might be paid or payable to Mr Askew by the Defendants cannot be considered for the purposes of assessing their entitlement to costs under CPR 46.5.[77]The lack of a statement or schedule of the time spent by the 1st to 11th Defendants in relation to the claim is not an absolute bar to the assessment of costs (per DHCJ Ter Haar KC in A & V Building Solution Limited v J&B Hopkin Limited [2024] EWHC 2914 at 133). However, the court does need something to draw upon to assess the amount of time which those Defendants are likely to have spent on the case. In A & V Building Solution Limited, the Judge felt able to assess the time spent by the unrepresented party with reference to the time spent by the solicitors represent the other party, as a starting point. Since the Claimant has also been acting a litigant in person there is no such cross reference available here.[78]The court must acknowledge however that these Defendants must have spent some time in dealing with the claim and liaising with the other Defendants and Mr Askew to co-ordinate the common Defence. Mr Askew states that:
“Each of these Defendants have expended significant time in dealing with each of these claims and have incurred the cost of engaging a professional consultant to advise in connection with underlying energy matters, which can, as the Court will appreciate, be quite technical in terms of underlying regulations and how electricity invoices are often calculated.”
[79]The 1st to 11th Defendants invite me to award an amount equivalent to the cap of two thirds of the fixed costs. In order to do so I would need to be satisfied that the Defendants had incurred financial losses in this sum, paid for legal services in this sum or that they are likely to have spent at least 91 hours engaging with the litigation (£1,720.67 / £19.00 = 91 hours).[80]On the evidence available to me and given the stage proceedings reached, I am not satisfied of these matters. Doing the best I can, taking account of:a. the need to consider, understand and respond to proceedings brought against them and procedural matters which have unfolded; andb. and the need to liaise with the other Defendants and Mr Askew as a central co-ordinator I am satisfied that it is more likely than not that each Defendant has had to spend at least 7 hours on this litigation.[81]Accordingly, I award each of the 1st to 11th Defendants their costs in the sum of £133.00 (7 hours at £19.00 per hour).[82]The Defendants have made reference to CPR 45.13 which permits the court to award a 50% uplift of the fixed recoverable costs on account of the Claimant’s conduct in the manner in which they have pursued these claims, as I have already referred to in my judgment.[83]This was not a contention raised at the hearing on 21 May 2025 and as a result it was not an issue on which I directed written submissions. As a consequence the Claimant has not had the opportunity to respond to that contention.[84]However, in any event, I would not exercise my discretion to award such an uplift for the following reasons:a. The Claimant has already been penalised for that conduct through the order striking out the claim; andb. There is no evidence available to me to show how the Claimant’s conduct has specifically increased the costs of the 12th and 13th Defendants or the time which has been spent by the other Defendants.[85]In summary the costs orders which I make in relation to the striking out of the consolidated claims are as follows:a. The Claimant shall pay each of the 12th and 13th Defendants their costs in the sum of £1,720.67 within 14 days;b. The Claimant shall pay each of the 1st to 11th Defendants their costs in the sum of £133.00 within 14 days.[86]The total costs award against the Claimant in respect of the striking out of the consolidated claims is therefore £4,904.34.