“Parties in this matter have spent this morning approaching£35,000 between themselves on two straightforward, bread-and-butter applications to set aside the default costs certificate and an application for a payment on account of costs, and they have done so in the context of, in due course, the assessment of a bill of costs of a comparatively modest£89,000 . It seems to me that both parties’ costs are disproportionate in the instance, the claimants more than the defendant, although I do not take the defendant’s claim for costs as being a marker or a benchmark as to what is reasonable or proportionate vis-à-vis the claimants’ costs. I think both in terms of the hourly rates, the work on documents and some of the communication, the time taken has been both unreasonable and, in turn, disproportionate.”
“Before the court can interfere it must be shown that the judge has either erred in principle in his approach, or has left out of account, or taken into account, some feature that he should, or should not, have considered, or that his decision is wholly wrong because the court is forced to the conclusion that he has not balanced the various factors in the scale.”
“Appeal…in relation to costs…is overcast from start to finish by the heavy burden faced by any appellant in establishing that the judge’s decision falls outside the discretion in relation to costs…For reasons of general policy, namely that it is undesirable for further costs to be incurred in arguing about costs, this court discourages such appeals by interpreting such discretion very widely.”
“13. I am satisfied that the Claimants [the Respondents before me] in these circumstances should have their costs of the application. I will assess those summarily in a second. 14. Let me say briefly, I acknowledge that the application was made by the Defendant [the Appellant before me]. It was opposed and the Claimants were unsuccessful in that opposition. Nonetheless it is an application for relief from sanction and, more particularly, one proffered underCPR 47.12 (2) and not 12(1). If it was 12(1) I might take a different view as to costs because the issue would turn on the Claimants’ entitlement to the default costs certificate or not. In my view, the Claimants’ procedural conduct was correct. The application was necessitated by the Defendant’s default. I cannot criticise the Claimants for seeking to oppose it and requiring the court to determine the outcome and in those circumstances, to my mind, the Claimants are entitled to their costs which I am going to summarily assess, assuming that I have a statement in front of me…”
“We think we should make it plain that it is wholly inappropriate for litigants or their lawyers to take advantage of mistakes made by opposing parties in the hope that relief from sanctions will be denied and that they will obtain a windfall strike out or other litigation advantage. In a case where (a) the failure can be seen to be neither serious nor significant, (b) where a good reason is demonstrated, or (c) where it is otherwise obvious that relief from sanctions is appropriate, parties should agree that relief from sanctions be granted without the need for further costs to be expended in satellite litigation. The parties should in any event be ready to agree limited but reasonable extensions of time up to 28 days as envisaged by the new rule 3.8(4).”
“However, I should also say that, in my view, Mr Peter considerably over-stated what the court said in Denton about the need for restraint on the part of the innocent party. Lord Dyson MR and Vos LJ were careful to say at [41] that mistakes should not be taken advantage of in circumstances where the failure was neither serious nor significant, where a good reason was demonstrated, or where it is otherwise ‘obvious that relief from sanctions is appropriate’. That is a relatively high bar. It was emphatically not designed to give carte blanche to a defaulting party to blame the other side for the delays caused by its own breach.”
“Please accept my apologies for the delay in replying. I have suffered a close family bereavement. In the circumstances, I would be grateful if you would consent to a 14 day extension of time for filing points of dispute. I would also hope that within that time we could also engage in negotiations to seek to resolve the issue of costs without having to progress to assessment. To that end, I attach an email from the fee earner with conduct at Gunnercooke which confirms that they would make a counter offer to our previous settlement proposal once the bill of costs have been prepared and it was understood on this basis you would not immediately proceed with notice of assessment.”
“Dear Ms Johal, I am sorry to hear of your recent loss. I am speaking to my client today at 2.30pm to take instructions and I will come back to you before the end of today.”
“Good afternoon, Ms Johal. As per my earlier email, I have spoken with my client who is taking instructions on your request below. As soon as I have instructions I will come back to you by email.”
“Dear Tom, thank you for your emails. Could you please confirm that no steps will be taken to obtain a default costs certificate pending reverting to me.”
“Dear Tom, further to my email I should be grateful if you could provide me with the confirmation requested.”
“Dear Louise, today is my first day back in the office after a long weekend. However, by way of an update: (1) our client instructed us to file a request for a default costs certificate, DCC, on Thursday in the event that PoDs were served; (2) a request for a DCC was filed at 4.01pm on Friday [that is a typo, and the day should read “Thursday”] before your email was received. I advised my client as per my previous emails and I understand that Gunnercooke were still awaiting instructions from Germany as of 11.30am this morning; (4) I have just spoken to the SCCO and they have confirmed that a DCC was sealed earlier this morning. I have been advised that they have uploaded the same to the CE-file and will send out a copy by first class post. As the DCC now supersedes your request and the request for the same was filed before your request was received, my client’s instructions are now to stand by the same.”
“The brief background is as follows. The notice of commencement is dated21 August 2020 . It is common ground that it was served on the Defendant shortly thereafter and that the deadline for serving points of dispute was16 September 2020 . The file has been dealt with by Ms Johal of the Defendant’s solicitors and, very sadly, at or about this time, Ms Johal suffered a distressing family bereavement which, understandably, distracted her and meant that, in the first instance, she overlooked the date for compliance. In any event, on16 September 2020 , realising that the deadline was imminent, she filed a written request by email to the Claimants’ solicitor for an extension of time. That request was refused by the Claimant. The refusal was conveyed from the Claimants’ solicitor, Mr Blackburn, to the Defendant on the morning of22 September 2020 . From about that point onwards, of course, Ms Johal appreciated that the Defendant was in breach and that as the DCC had been issued that day, the only option available to the defendant was to issue an application to set it aside. The application was issued on8 October 2020 .”
“6. My brief findings are as follows. First, I am satisfied in this case that the Defendant made their application to set aside the default costs certificate promptly. I have gone through the timetable. The application was issued, broadly speaking, 14 days or two weeks or so after the Defendants were put on notice of their breach. Prompt, to my mind, does not mean issued at the first available opportunity. What it means, of course, is that the Applicant engages in reasonable expedition in the context of the particular issue, namely the failure to serve points of dispute within a 21-day deadline period. The relevant period thereafter is from the point when the paying party reasonably knows that it is in breach of that requirement. Fourteen days is not, as Mr Blackburn would point out, as swiftly as an anxious party might act, but it is, in my experience, a fairly common turnaround period for these applications. We are certainly not talking about many weeks or indeed months which is a delay that is not wholly unheard of, as illustrated by the case of Masten v London Britannia, Master Leonard’s case of this week which has been cited to me in argument. In any event, I am satisfied that, on the facts of this case, the Defendant’s application was made promptly and it is common ground that the application exhibits draft points of dispute which, although undated, were clearly produced at or about22 September 2020 , or shortly thereafter. 7. Turning at this point to Denton, this is, to my mind, a serious and significant breach. It has to be. It is a straightforward question of deadline, a relatively tight deadline of 21 days and, more particularly, a deadline imposed by the CPR. It is axiomatic that the Defendant is in breach of that and in breach of that by a not insignificant period of time when compared to the relatively short period required for initial compliance. Mr Lyons urged me to conclude that there is a sliding scale and this is at the bottom end of that scale but I do not think that can be right in circumstances where it is a bright line issue. There is a deadline, the Defendant is in breach of it and in the context of these assessment proceedings that breach is, by definition, serious and significant. 8. I am not at all unsympathetic to the recent and necessarily unhappy experiences of Ms Johal. I am quite satisfied as a matter of fact, that she sustained a very distressing family bereavement and I can see again, almost inevitably, the way in which that would have affected her ability to perform during the relevant period of time. That, though, is not a good reason for the breach. It is simply an understandable explanation for the surrounding circumstances for that omission. It is conceded by Ms Johal in her witness statement that she overlooked the requirement in the context of her situation until the very last date of potential compliance, 16September, when she asked for an extension. 9. I am satisfied that the Defendants are forced effectively to rely on the third stage of Denton, all the circumstances of the case which, to my mind, in an application like this, effectively dovetails with the requirement of 47.12(2), good reason for detailed assessment proceedings to continue. All the circumstances of the case, to my mind, refers to the case in question which is the detailed assessment proceedings, as distinct from the substantive litigation between the parties. I received quite lengthy submissions, although put pithily I have to say, by Mr Blackburn as to the alleged inefficiencies and the Defendant’s conduct of the substantive litigation, which criticisms may or may not be right. But the relevance of those points is peripheral at best, as what I am concerned with is the conduct of the detailed assessment and whether or not there are good reasons for that assessment to continue. 10. In my judgment, there are good reasons on the facts of this case for the detailed assessment to continue and for that reason I will be allowing the defendant’s application to set aside the default costs certificate.”
“The exigencies of daily court room life are such that reasons for judgment will always will be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case but also of a reserved judgment based upon notes, such as was given by the District Judge. These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known… An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself.”
“A judge is not expected to give a detailed decision as to why he is making an order. However, if he is going to make an order for costs which is not the normal order expected under the particular provisions of the CPR, then the parties are entitled to know the basis of that order and the judge is required to explain that so far as is necessary to do.”
“The court will set aside a default costs certificate if the receiving party was not entitled to it.”
“In any other case, the court may set aside or vary a default costs certificate if it appears to the court that there is some good reason why the detailed assessment proceedings should continue.”