Niprose Investments Limited & Ors v Vincents Solicitors Limited (Costs) [2025] EWHC 2084 (Ch)

[2025] EWHC 2084 (Ch)Case No BL-2022-MAN-000036IN THE HIGH COURT OF JUSTICEBUSINESS AND PROPERTY COURTSVenue IN MANCHESTERBUSINESS LIST (ChD)Venue Manchester Civil Justice Centre1 Bridge Street WestVenue Manchester M60 9DJDate Wednesday, 6 August 2025
Before
HIS HONOUR JUDGE HODGE KCSitting as a Judge of the High Court
Between
NIPROSE INVESTMENTS LIMITEDClaimantAND 30 OTHERClaimant60th to 78th, 80th to 90th, and 92ndClaimantVINCENTS SOLICITORS LIMITEDDefendant- and -, VINCENTS SOLICITORS LIMITED for NIPROSE INVESTMENTS LIMITED AND 30 OTHER CLAIMANTS10 th Defendant for 60 th to 78 th, 80 th to 90 th, and 92 nd Claimants
Mr Simon Wilton KC (instructed by RPC, London) for 10 th DefendantMr Laurie Scher (instructed by Walker Morris LLP, Leeds) for Claimants
Approved Judgment on Costs(determined on written representations)This judgment was handed down remotely at 10.00am on Wednesday 6 August 2025 by circulation to the parties’ legal representatives by e-mail, by uploading it to CE-File, and by release to the National Archives..............................HIS HONOUR JUDGE HODGE KCProfessional negligence– Solicitors – Costs of defendant’s application to strike out and for summary judgment on the claim against them and of claimants’ later responsive informal application to amend – Application to strike out and for summary judgment dismissed – Application to amend largely successful – Appropriate order as to costs where the defendant’s application would have succeeded absent the amendments – Effect of the defendant’s unsuccessful opposition to the bulk of the amendments – Identification of the successful party to the applicationThe following cases are referred to in the judgment:Bellhouse v Zurich Insurance Plc[2025] EWHC 1551 (Comm)Beoco Ltd v Alfa Laval Co Ltd[1995] QB 137His Honour Judge Hodge KC:

Introduction and background

[1]This judgment considers the parties’ liability for the costs arising in relation to an interim application and two full days’ hearings made in the course of a professional negligence claim by purchasers who are suing their former conveyancing solicitors in relation to a failed residential development scheme. Who should bear the costs of the solicitors’ application to strike out the claim, or for summary judgment against the claimants, where that application fails only because the court permits the claimants to make an informal application to amend their statement of case? And who should bear the costs of the claimants’ informal, and opposed, amendment application where most, but not all, of the amendments are permitted? The answers to these questions involves identifying the successful party to the application.[2]This written judgment is a sequel to, and should be read in conjunction with, the reserved judgments I handed down in this case on 17 April 2024 (bearing the neutral citation number [2024] EWHC 801 (Ch)) and 17 January 2025 (bearing the neutral citation number [2025] EWHC 14 (Ch)). The first of those judgments was delivered on the application of the 10th defendant (‘Vincents’) to strike out a claim in professional negligence brought against it by (then) 35 separate claimants (numbered 60 to 94) arising out of their purchase of 50 residential units in a buyer-funded, off-plan development scheme in Liverpool 6, or for summary judgment against the claimants under CPR 24. As I explained in my first judgment, each of the purchasers lost substantial, up-front payments on the failure of the development; and they are now suing Vincents, who acted as their conveyancing solicitors, for breach of duty.[3]The issues raised by Vincents’ application included the nature and extent of the duties they owed to purchasers to advise them of the risks of investing in this particular development; whether Vincents were in breach of such duties; the nature of the risks against which the law imposes a duty of care on Vincents (the scope of duty issue); whether the loss for which the claimants are seeking to recover damages is the consequence of Vincents’ acts or omissions (the factual causation issue); whether there is a sufficient nexus between a particular element of the harm for which the claimants seek to recover damages and the subject-matter of Vincents’ duty of care (the duty-nexus issue); and whether the claims against Vincents were sufficiently pleaded.[4]At the earlier hearing, on 20 March 2024, Vincents were represented by Mr Simon Wilton KC, instructed by RPC. The (then) 35 purchasers who had instructed Vincents on their respective purchases were represented by Mr Laurie Scher (of counsel), instructed by Walker Morris LLP. The same counsel and solicitors have continued to act in the case. Save where the context otherwise requires, in this judgment I shall refer to Mr Scher’s lay clients as ‘the claimants’. I record that after my first judgment, the 79th, 91st, 93rd and 94th claimants (who purchased a total of 13 units between them) settled their claims against Vincents. I shall refer to the 31 surviving claimants as ‘the remaining claimants’.[5]The background to Vincents’ application is set out in my first judgment; and it is unnecessary for me to repeat it here. For the reasons set out in that judgment, I concluded that I should not finally determine Vincents’ application on the materials that were before the court on the first hearing. Rather, I should afford the claimants an opportunity to amend their original statement of case. In summary, my order provided for:(1) The remaining claimants to file and serve draft amended particulars of claim.(2) Vincents to indicate to what extent it agreed to the draft amendments (with reasons for any disagreement).(3) The remaining claimants to file and serve refined, draft amended particulars of claim, taking account of Vincents’ comments, in advance of an adjourned hearing.(4) The listing of the adjourned hearing, at which the court would consider the final disposal of the application, and whether to give permission for the amendments to the particulars of claim without the need for any further application, giving such consequential directions as might be needed in that regard.(5) The costs to be reserved, to be dealt with when the application was disposed of at the adjourned hearing.(6) The pending hearing of the costs and case management conference to be vacated, and re-listed after the adjourned hearing.[6]A timetable was set out for each of these various steps, which was subsequently extended by agreement between the parties. Due in large part to difficulties in arranging a hearing date to suit the mutual convenience of both counsel and the court, the application only returned to this court on Thursday 5 December 2024. That delay was of some significance because it meant that more than six years had by then elapsed since all the remaining claimants had exchanged contracts for the purchase of their respective units in the development, giving rise to potential limitation issues. With the benefit of my pre-reading, the hearing was again comfortably completed within its time estimate of one day. As on the previous occasion, I found it necessary to reserve my judgment at the conclusion of the hearing. I subsequently handed that judgment down on Friday, 17 January 2025.[7]Mr Scher had invited the court to approve all of his proposed amendments, and to dismiss Vincents’ application to strike out the claim against the remaining claimants, or for summary judgment on that claim. He submitted that the amended claims have (at the very least) a real prospect of success, based upon a sufficiently particularised statement of case. Allowing the amendments was necessary in order to do justice between the parties.[8]Mr Wilton had submitted that the proposed amendments included ‘new claims’, which were time-barred, and which did not arise out of the same, or substantially the same, facts as were already in issue in this claim. He had submitted that the court did not have the necessary jurisdiction to allow any of the amendments; and that the remaining claimants’ remedy, should they wish to pursue any such claims, notwithstanding the limitation obstacle, was to issue new proceedings.If, contrary to Mr Wilton’s primary position, the court did have the necessary jurisdiction to allow all, or any, of the amendments, he had submitted that there were numerous reasons why this court should refuse permission to amend, as a matter of the court’s discretion, and summarily dismiss the claim against Vincents.[9]For the reasons set out in my second judgment, I found that there was no jurisdictional bar that would prevent the court allowing any of the remaining claimants’ proposed amendments. I rejected Mr Wilton’s submissions that Vincents could rely upon the remaining claimants’ delay in bringing forward any new case, and any consequent case management implications, as valid, and sufficient, reasons for refusing to allow the amendments sought. For the reasons given in my second judgment, and as a matter of the exercise of the court’s discretion, I refused the remaining claimants permission to amend their particulars of claim to introduce the new claim that Vincents had given erroneous advice to some of the remaining claimants by email or by telephone. I therefore disallowed the amendments sought to be introduced by paragraph 29A of the draft amended particulars of claim and Appendix 2, and also the additions to the opening of paragraph 45 and to paragraph 45.6. I also refused the remaining claimants permission to amend their particulars of claim to introduce the scope of duty and duty-nexus argument that was pleaded in paragraph 46A.1 of the amended particulars of claim. However, I allowed all of the remaining claimants’ other proposed amendments. I directed that they should prepare, file, and serve amended particulars of claim in accordance with my second judgment, with Vincents to file and serve an amended defence consequential upon those amended particulars of claim. The parties proceeded to agree a timetable for these amendments, and then to bring the matter back before the court for a case management hearing. This hearing extended also to the extant claims against the 2nd defendant. In the event, the matter came back before me for a full day’s costs and case management hearing (CCMH) in Manchester, attended by counsel for the remaining claimants (Mr Scher), the 2nd defendant (Mr Paul Parker), and the 10th defendant (Mr Wilton KC) on Wednesday 30 July 2025.[10]At paragraph 115 of my second judgment, I had invited the parties to seek to agree a substantive order to give effect to my second judgment. This was to include provision for the costs of Vincents’ application (including the reserved costs of the first hearing). I recorded that my then, and entirely provisional, view was that some, but not all, of these costs should fall to be borne by the remaining claimants because they had only avoided the striking out of their claims against Vincents, and had resisted summary judgment on such claims in Vincents’ favour, because of the amendments to their particulars of claim for which I had given permission. I directed that if the parties could not agree upon a suitable form of order, they should provide a draft composite order, together with brief written submissions on the outstanding consequential matters. Unless I directed otherwise, I would proceed to determine the outstanding matters on the papers.[11]Counsel’s respective costs submissions were submitted to the court by CE-Filing on Friday, 31 January 2025. Unfortunately, due to shortages of, and pressures of work on, the court staff, these submissions were not processed and filed (as case Events 226 and 228) until some five weeks later, on Sunday 9 March 2025. Even more unfortunately, these submissions were not referred to me, by way of CE-File Alert or email (as they should have been), either then, or at any time thereafter. It was only shortly before 1.00 pm on Sunday, 26 July 2025 that I first discovered the existence of these written submissions. This came about when, as part of my preparations for the full day’s CCMH that was listed before me on Wednesday, 30 July, I noticed in unprocessed filings, and downloaded from CE-File, a letter addressed to me from the 10th defendant’s solicitors (RPC) dated 24 July 2025, “reminding” me that “costs issues remain outstanding”. This letter was not itself processed by the court staff until Tuesday 29 July (as Case Event 273). Even then, it was not formally referred to me, either by way of CE-File or email, as it should have been. This letter included the following paragraph: During the adjourned hearing, the judge directed that the issue of the costs arising out of the application and the claimants' amendments should be dealt with on paper. The parties CE-filed submissions in respect of the costs of the application on 31 January 2025, following the hand down of the judgment. The judge has not yet made a determination in respect of the cost issues. In light of the upcoming CCMC, we thought it might be appropriate to remind the judge that the cost issues are outstanding, in case he would like to hear arguments and/or give judgment on costs at the CCMC. To that end, the claimants have included the parties' submissions on the costs of the application in the CCMC bundle in case the judge would like to consider and/or give judgment on these issues. Counsel’s written submissions on costs were included within the hearing bundle for the CCMH; but, as counsel had anticipated in their written skeletons, there was no time to address the issue of the costs of the earlier interim application, and the two previous hearings, at the CCMH. On behalf of the court, I tender my apologies for its omission to draw the outstanding issue of costs to my attention. This judgment address the outstanding costs issues.

The 10th defendant’s submissions

[12]Mr Wilton submits that Vincents’ application to strike out or summarily determine the claim would have succeeded had the remaining claimants not produced a wholesale amendment. Furthermore, whilst the court allowed an informal application to amend, significant amendments were not permitted. Mr Wilton submits that the appropriate order is for the remaining claimants to pay:(1) 71% of Vincents’ costs of its application, and the informal amendment application, up to 22 July 2024 (which is 14 days after Vincents’ receipt of the draft amended particulars of claim). This percentage figure reflects the settlement of certain of the claims after my first judgment had been handed down. Mr Wilton accepts that Vincents cannot reasonably expect to recover from the remaining claimants that proportion of its costs up to 22 July 2024 which is fairly attributable to the settled claims. As the aggregate value of the settled claims was approximately 29% of the overall aggregate value, the recovery for which Mr Wilton contends is 71% of the costs for this period.(2) 50% of Vincents’ costs of the two applications thereafter.(3) Vincents’ costs of and occasioned by the amendments to the particulars of claim.[13]In his written submissions, Mr Wilton relates the history of the applications, summarises the remaining claimants’ proposed amendments, and refers to the principal holdings in my second judgment. He then addresses (uncontroversially) the applicable principles governing the award of costs. The court’s general discretion as to costs is detailed in CPR 44.2. The general rule is that the unsuccessful party should pay the costs of the successful party, but the court will consider all the circumstances of the case, including the conduct of the parties, and whether a party has succeeded on part, if not the whole, of its case. Matters of conduct can include whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue, and the manner in which a party has pursued or defended his case. The orders the court may make include an order that a party should pay a proportion of another party’s costs, a stated amount in respect of costs, costs from or until a certain date, and the costs of particular steps taken, or of a distinct part of the proceedings.[14]At the time of preparing his written submissions on costs, Mr Wilton had not been able to find any precedent as to the costs of a strike out or summary judgment application which had not succeeded only by reason of amendments made by the respondent. He submits that where it is clear that the application would have succeeded absent those amendments, the starting point should be that costs should be paid by the respondent as it follows that the case was fundamentally defective, and would have been dismissed but for the amendment.[15]As to the costs of the application to amend, viewed in isolation, Mr Wilton concedes that, as the White Book states (at paragraph 17.3.10):
“Parties ought to consent to amendments they cannot reasonably oppose and, if they do not, they may be penalised in costs.”
But he says that that plainly is not the case where the opposition is reasonable. To the extent that an application fails, there is no reason why the applicant should not pay the costs, or at least why that failure should not be reflected in the court’s order as to costs. In any event, the relevant context here is Vincents’ own application, which acted as the catalyst for the amendments.[16]Mr Wilton submits that it is also noteworthy that an amendment may change a case so radically that the respondent to the amendment should be entitled to recover the costs of responding to the previous case. As Stuart-Smith LJ observed, in Beoco Ltd v Alfa Laval Co Ltd [1995] QB 137, as cited in the White Book (at paragraph 17.3.10): As a general rule, where a plaintiff makes a late amendment, as here, which substantially alters the case the defendant has to meet and without which the action will fail, the defendant is entitled to the costs of the action down to the date of the amendment. Mr Wilton reminds the court of the convention, recorded in the notes in the White Book (at paragraph 17.3.10), that the amending party should pay the costs of and occasioned by the amendment.[17]Mr Wilton then addresses the appropriate form of order. He does not say that the remaining claimants should pay the costs of Vincents’ defence of the unamended claim. Notwithstanding the far-reaching changes to the claim, there remains a ‘family resemblance’. But it is a material consideration that Vincents has thus far had to defend a very different, and wholly generic, case. Substantial costs will have been thrown away. Mr Wilton submits that Vincents should have the costs of and occasioned by the amendments and that the remaining claimants should pay their full share (i.e. 71%) of Vincents’ costs up to 22 July 2024, by which time Vincents had had an opportunity to review the draft amended particulars of claim. The remaining claimants should also be ordered to pay 50% of Vincents’ costs thereafter. That is for the previous, and also the following, further, reasons:(1) The claim was fundamentally defective for all the reasons detailed in the first judgment: if it was to survive, then it required comprehensive amendment.(2) Vincents’ application would have succeeded but for the amendments: so the first judgment implied, and the second judgment confirmed (at paragraph 112).(3) The draft amended particulars of claim amounted to a comprehensive reformulation of the claimants’ case, with numerous additions, and detailed and lengthy appendices.(4) Whilst, at the first hearing, the claimants made it clear, in oral argument, that they would amend if they needed to, they did not accept that their case was fundamentally defective. They had filed a skeleton argument and witness evidence contending for the dismissal of Vincents’ application, with indemnity costs, reflecting the unyielding stance they had taken in pre-application correspondence.(5) The claimants had not formulated any draft amended pleading before the first hearing either, so there was no alternative but for Vincents to argue out the issues.(6) It had been reasonable for Vincents to contest the amendment application in circumstances where a comprehensively reformulated case was proposed, with various objectionable features, and potentially far-reaching costs and case management implications, at a time when the limitation period had expired, such that there was real concern as to whether the court had the necessary jurisdiction to permit the amendments, or should give permission for them even if it did.(7) That opposition was pursued for cogent reasons, and was properly advanced, as reflected in the detailed discussion of the issues arising in the second judgment.(8) Whilst the remaining claimants did obtain permission to amend for many of their amendments, they failed in important respects: the attempt to introduce a range of new claims, by individual claimants, was rejected because (as stated at paragraph 105 of the second judgment), they “would effect a fundamental, and transformative, change in the character of the claim”; and a new scope of duty/duty-nexus plea was adjudged to be wholly unarguable.(9) It remains the case that the claimants should have pleaded their case properly from the outset: they had advanced generic claims, without proper attention to the need to plead an intelligible case by individual clients against Vincents specifically.[18]Mr Wilton has appended to his submissions Vincents’ statements of costs for the hearings on 20 March (in the total sum of £39,850.32) and 5 December 2024 (in the total sum of £33,798.15). No VAT element is included within these figures. Mr Wilton invites the court to assess the costs summarily, on the basis that at least £2,000 of the costs in the second schedule concerns work undertaken before 22 July 2024, making a total of £41,850.32 incurred by that date. The remaining claimants should pay 71% of this sum, i.e. £29,713.73. Conversely, £31,798.15 (the costs in the second schedule less £2,000) was incurred thereafter: the remaining claimants should pay 50% of this latter sum, i.e. £15,899.07. That makes a total of £45,612.80. Alternatively, if the court is minded to require a detailed assessment, Mr Wilton invites the court to direct a payment on account of 60% of £41,850.32 (£25,110) plus 30% of £31,798.15 (£9,539), which is a total of £34,649.[19]By way of a supplement to his written submissions, at the end of his skeleton argument for the CCMH, Mr Wilton respectfully prays in aid the court’s decision in Bellhouse v Zurich Insurance Plc [2025] EWHC 1551 (Comm). That case also featured a strike-out application which did not succeed, but only on the basis that the respondent had to undertake a comprehensive amendment of its case in order to address serious deficiencies in its original pleadings. The court concluded that the applicant was the successful party and should receive its costs. Mr Wilton acknowledges that in that case there were admittedly aspects of the respondent’s conduct which were wholly unreasonable, and which, he accepts, have not been replicated here. Therefore, he does not suggest that indemnity costs are appropriate here, as they were in the Bellhouse case. However, the overall incidence of costs in that case is said to support Vincents’ overall submission that where a party’s case is fundamentally deficient, it should expect to pay the costs of an application for summary determination in circumstances where the claim is only allowed to proceed by reason of a comprehensive amendment which is necessary in order for the respondent to produce a viable claim. Having said that, the detailed order sought in this case remains that outlined in Mr Wilton’s earlier costs submissions, for the particular reasons he gives there.

The submissions for the remaining claimants

[20]For the remaining claimants, Mr Scher invites the court to order Vincents to pay the remaining claimants’ costs of the application (including both hearings), and for his clients to bear the costs of the amendments (and Vincents’ responsive amendments). His starting point is that costs should follow the event. Vincents sought summary judgment and strike out. That application was unsuccessful. Vincents failed to get the relief it sought. The claim continues.[21]Secondly, Mr Scher says that it is no answer for Vincents to say that it succeeded in part, because the claimants were obliged to amend their claim. The amendments are not remotely helpful to Vincents. Indeed, the process of refinement has led to Vincents now facing a stronger claim. This is in no way a ‘partial win’ for Vincents: it was a “strategic blunder”. Vincents had opportunistically hoped that it would succeed in defending the claim without the court considering it at a trial, and without Vincents having to give disclosure of key documents. Instead, Vincents is now in a worse position than it was before it made its application.[22]Thirdly, Mr Scher submits that the second hearing should not have been necessary. After the first judgment was given, following the first hearing, Mr Scher had drafted amendments to the particulars of claim to take into account the comments made by the court, and those made by Vincents in correspondence. Vincents should have agreed to the amendments ultimately permitted by the court. Further:(1) On 9 May 2024, the court ordered Vincents, within nine weeks, to indicate to what extent it agreed to the claimants’ draft amendments (with reasons given for any disagreement). That date was extended by consent to 22 July 2024.(2) On 16 July 2024, Vincents commented on the amendments, asking numerous questions, and seeking the claimants’ response, expressly “to assess the extent to which it ought to agree the proposed amendments”.(3) On 23 July 2024, Vincents said:
“For the avoidance of doubt and pending receipt of aresponse to our letter dated 16 July 2024, we do not consent to the draft amended particulars of claim.”
(emphasis added) (4) On 30 July 2024, the remaining claimants’ solicitors responded in detail to Vincents’ letter. That letter concluded:
“we would ask you to now confirm to what extent the amendments are agreed”
. Vincents sent only a holding response. (5) On 5 November 2024, the remaining claimants’ solicitors chased for a response to the letter of 30 July 2024. Vincents had still failed to indicate the extent to which the amendments were agreed. Later that day, Vincents’ solicitors responded by saying that they "expect to respond fully to the issues" that week (i.e. by 8 November 2024). They did not so respond. (6) Instead, on 25 November 2024, in Mr Reid’s witness statement, it became clear that Vincents opposed all of the amendments. Ultimately it lost on practically all of those arguments (with the exceptions mentioned below). Mr Scher says that had Vincents’ properly engaged with the remaining claimants’ solicitors’ letter of 30 July 2024, and sensibly accepted the majority of the amendments, a compromise position could, and should, have been reached by which the second hearing would have been avoided.[23]Fourthly, Mr Scher emphasises that the only substantive amendments rejected by the court were the ‘individual advice’ claims and one ‘nexus’ argument. He says that:(1) The ‘individual advice’ claims were pleaded in response to Vincents’ complaint (articulated in Mr Wilton’s skeleton for the first hearing) that “there is no allegation of any specific advice to an individual client being wrong”.He points out that Vincents had itself raised the issue of “individual advice” in paragraph 32 of its defence.(2) Days before the second hearing, in Mr Reid’s third witness statement, dated 25 November 2024, Vincents had first objected to the ‘individual advice’ claims on limitation grounds.(3) Had the limitation point had been raised properly in correspondence, and if there had been proper negotiation concerning the amendments, the ‘individual advice’ claim is unlikely to have been included in any eventually agreed amended particulars of claim. The court’s rejection of the ‘individual advice’ amendments does not detract from Mr Scher’s submission that the second hearing should not have been necessary, as the amendments should have been agreed.(4) Similarly, the discrete ‘nexus’ argument ultimately rejected by the court would not have been a deal-breaker, had Vincents sought to engage with the amendments in a constructive way.[24]Fifthly, and relatedly, the costs order should take into account Vincents’ “heavy-handed” conduct of this application. Mr Scher relies upon the following:(1) Vincents failed to comply with the order of 9 May 2024, requiring it to indicate to what extent it agreed to the claimants’ draft amendments (giving reasons for any disagreement).(2) Further, the limitation argument was only raised on 25 November 2024, and then only in relation to the ‘individual advice’ claims. The fuller limitation argument was only raised in Mr Wilton’s skeleton argument on 3 December 2024, two days before the second hearing. Between Vincents’ solicitors’ letter of 16 July 2024 (in which the point should properly have been raised) and 3 December 2024 (when it was in fact raised), a number of limitation periods expired, in particular regarding the 76th claimant (who exchanged contracts on 10 August 2018), and the 73rd-74th, 78th, 87th-88th, and 90th claimants (all of whom made payments between 16 July 2018 and 3 December 2018). Of course, Vincents’ limitation argument was largely unsuccessful; but by saving it until counsel’s skeleton argument, Vincents prejudiced the remaining claimants’ ability to respond to it. The court can reasonably infer that this delay was intentional, and was done in order to gain a perceived tactical advantage at the second hearing. That strategy failed.(3) Vincents’ arguments about case management are opportunistic and self-contradictory. Vincents engaged with, and supported, the ‘lead claimant’ model, in which lead claimants were selected by reference to their particular characteristics. Vincents then argued that this model was unworkable. Vincents’ objective seemed to be a trial of all of the remaining claims, which would be far more expensive for the modestly-resourced remaining claimants. Their solicitors have commented that this is a well-known tactic of insurers.(4) Vincents’ rash, and surprising, failure to compromise the informal amendment application led to the modestly-resourced remaining claimants having to incur the costs of a second contested hearing. Again, the court can infer that this was intentional – or, at the very least, that Vincents was not approaching this litigation with a view to saving expense, as required by the overriding objective. The court should discourage insurers from pursuing expensive satellite litigation by making a costs order in Vincents’ favour, particularly when its own application was unsuccessful, and when Vincents failed to comply with a court order to gain a perceived tactical advantage in the litigation[25]For all of these reasons, Mr Scher invites the court to order Vincents to pay the remaining claimants’ costs of its application, including the costs of both hearings, to be assessed if not agreed. Mr Scher acknowledges that the claims of the 79th, 91st, and 93-94th claimants have been compromised, and that they do not seek their costs prior to the settlement agreement. Mr Scher also accepts that the remaining claimants should bear the costs of the amendments, and of Vincents’ response to them.[26]Mr Scher says that the total costs incurred in respect of the application (excluding the costs of amendment, and excluding also the costs relating to the settled claimants’ claims) are £99,133,38 (inclusive of VAT). The claimants’ first N260, filed on 4 December 2024, calculated the costs up to 15 July 2024 (the date when certain of the claimants compromised their claims) in the sum of £56,089.88 (inclusive of VAT), allowing for a reduction of 28.91% for the settled claims. The remaining claimants’ second N260, also filed on 4 December 2024, calculated their costs from 15 July 2024 to the second hearing in the sum of £46,283.40 (inclusive of VAT). These have since been reduced to £43,043.40 (inclusive of VAT) to account for an agreed reduction in counsel fees to £24,000 (inclusive of VAT). Mr Scher points out that the N260s do not include the cost of the amendments. Accordingly, the total costs claimed by the remaining claimants amount to £99,133.38 (inclusive of VAT), i.e. £56,089.88 plus £43,043.40. The remaining claimants also seek a payment on account of £50,000 (inclusive of VAT).[27]If, contrary to these submissions, the court should choose to make an order for costs against the remaining claimants, it is invited to defer any assessment of Vincents’ costs until 28 days after the handing down of judgment following the substantive trial of this claim, and not to order any payment on account of costs. It is said that any order for costs to be payable at this stage would put the remaining claimants in a difficult position, and might provide Vincents with the tactical advantage that it sought when it made its application in the first place. The previous comments about the tactics employed by insurers are repeated. A delay in assessing and paying the costs would not unduly prejudice Vincents’ insurer, which is said to be vastly better-resourced than the remaining claimants.[28]The remaining claimants’ primary position, however, is that Vincents should pay their costs because it was unsuccessful in its strike-out application.

Analysis and conclusions

[29]I have borne both counsel’s submissions firmly in mind.[30]Any award of litigation costs requires a judicial evaluation of the particular facts of the case, followed by a principled exercise of judicial discretion. Each case is inevitably fact-sensitive. Nevertheless, there should be an acceptable degree of consistency of approach, with like cases being treated alike.[31]Mr Wilton is right to draw the court’s attention to the court’s recent decision in Bellhouse v Zurich Insurance Plc [2025] EWHC 1551 (Comm). The substantive hearing in that case concerned the claimants’ application to strike out, and for summary judgment on, substantial parts of Zurich’s defence to a claim on the claimants’ household insurance policy. As the court explained (at paragraph 6 of its consequentials judgment), the court had spent a full day hearing that application. Apart from one aspect of one part of Zurich’s defence, the court had refused to strike out the other challenged parts of Zurich’s pleadings, or to enter summary judgment for the claimants on those parts of Zurich’s defence. But it only refused to do so because it afforded Zurich the opportunity to address, and correct, what the court had found to be serious deficiencies in the way that, up until then, Zurich had pleaded its case. Before the hearing of the application, Zurich had refused, not only to correct, but even to acknowledge, any of those deficiencies. Whatever the precise form that Zurich’s further particulars might thereafter take, the court considered it appropriate to grasp the nettle of determining the incidence, and the quantum, of the costs the parties had incurred in arriving at the position that court had reached. That was that Zurich had been required to supply further particulars of its defence, as the price of avoiding the striking out of, and the entry of summary judgment against it on, the challenged elements of its pleaded defence. At paragraph 19 of the court’s consequentials judgment, the court held that the successful parties to the application were the claimants, and not Zurich. Although the court had not struck out the majority of Zurich’s challenged pleadings, nor had it entered summary judgment against it, that was only because the court had ordered Zurich to remedy the clear deficiencies in its pleaded case. That was not something that Zurich had ever previously recognised was necessary. For those reasons, the court concluded that Zurich had been the losing party; and it was therefore ordered to pay the claimants’ costs. I accept Mr Wilton’s submission that the overall incidence of costs in that case supports Vincents’ overall submission that where a party’s case is fundamentally deficient, it should expect to pay the costs of any application for strike out, or summary judgment, in circumstances where the claim is only allowed to proceed because of a comprehensive amendment, which the court finds to be necessary in order for the respondent to advance a viable claim.[32]In my judgment, and for the reasons that Mr Wilton has given in relation to Vincents’ application, and its first hearing, I find that the position is the same in the present case. I agree with Mr Wilton that Vincents’ application to strike out, or summarily determine, the claim would have succeeded had the remaining claimants not produced wholesale amendments to their claim. Where, as here, it is clear that such an application would have succeeded, absent such amendments, the starting point should be that costs are to be paid by the respondent, since it follows that the case was fundamentally defective, and would have been dismissed but for the amendments. If the claim was to survive, then it required comprehensive amendment. The amended particulars of claim amount to a comprehensive reformulation of the case, with numerous additions, and detailed and lengthy appendices. Whilst, at the first hearing, and in response to questions from the court, the claimants made it clear, in oral submissions, that they would amend if they needed to, they did not accept that their case was fundamentally defective. They had filed a skeleton argument, and witness evidence, contending for the dismissal of Vincents’ application (with indemnity costs). In Mr Wilton’s language, that reflected the “unyielding stance” that the claimants had taken in pre-application correspondence. Nor had the claimants formulated any draft amended pleading before the first hearing, so there was no alternative but for Vincents to argue out the issues. In my judgment, none of Mr Scher’s counter-submissions satisfactorily address, or answer, the fundamental reality that it is Vincents, and not the claimants, who were the successful party at the first hearing. As such, they should be entitled to recover their costs from the remaining claimants.[33]I consider that there is no force in Mr Scher’s submission that the amendments are in no way remotely helpful to Vincents; that the process of refinement has led to Vincents now facing a stronger claim; and that Vincents is now in a worse position than it was before it made its application. Even if Vincents’ application was a “strategic blunder” on its part, as Mr Scher claims, the fact remains that the application was merited on the basis of the claimants’ pleadings as they then stood. Absent wholesale amendments to the claimants’ case, the application would have succeeded. It should not have been necessary for Vincents’ to, in effect, precipitate any strengthening of the claimants’ case. That case should have been advanced from the outset.[34]I agree with Mr Wilton, on this aspect of the case, that the appropriate order is for the remaining claimants to pay 71% of Vincents’ costs of its application, and of the informal amendment application, up to 22 July 2024 (which is the date 14 days after Vincents’ receipt of the draft amended particulars of claim). That percentage figure appropriately reflects, in round terms, the settlement of certain of the claims after my first judgment had been handed down.[35]However, I disagree with Mr Wilton about the costs as from 22 July 2024. So far as the incidence of those costs is concerned, I prefer Mr Scher’s submissions. In my judgment, none of Mr Wilton’s counter-submissions satisfactorily address, or answer, the several points made by Mr Scher (as summarised above). I do not agree with Mr Wilton that it was reasonable for Vincents to contest the amendment application in its entirety after 22 July 2024. In my judgment, Vincents should, in furtherance of the overriding objective, have engaged with the remaining claimants over the amendments once they had had the opportunity to consider them. Had they done so, I consider that the second hearing might well have proved unnecessary. Whilst I would not necessarily agree with Mr Scher’s characterisation of Vincents’ conduct of this application as “heavy-handed”, I consider that there is considerable force in many of the points that Mr Scher makes. I acknowledge that the remaining claimants were not entirely successful on the second hearing; but they were substantially so. And the respects in which they were unsuccessful should have been capable of resolution, without the need for a full day’s contested hearing, had Vincents adopted a more constructive approach, consistent with the overriding objective, and their duty (under CPR 1.3) to help the court to further this. In my judgment, the remaining claimants were substantially the successful party after 22 July, and at the second hearing. They should be entitled to recover the substantial part of their costs. I will apply an overall 10% discount to reflect, on the one hand, the remaining claimants’ failure to secure permission for the ‘individual advice’, and one aspect of the nexus, amendments, and, on the other, Vincents’ conduct in refusing to engage over the amendments. The remaining claimants will be entitled to recover 90% of their costs since 22 July 2024.[36]I turn them to the summary assessment of the parties’ recoverable costs. I summarily assess the costs to be awarded to Vincents up to 22 July 2024 in the total sum sought by Mr Wilton of 71% of £41,850.32. That is £29,713.73 (with no VAT). I am satisfied that the work recorded in Vincents’ two Form N244 statements of costs is both reasonable and proportionate. The hourly rates claimed are well within the applicable guideline rates. The sums claimed are properly recoverable on a standard basis summary assessment.[37]It is unnecessary for me to address the claimants’ first Form N244 statement of costs. Turning to the remaining claimants’ second N244 statement of costs, I make no deduction for the fact that this runs from 15, rather than 22 July, 2024. It would be neither proportionate, nor cost effective, to require the remaining claimants to prepare or file any revised statement of costs running from this later date. Although slightly in excess of the applicable guideline rates, I am satisfied that the rates actually applied to all the fee-earners are reasonable and proportionate given the nature of this multi-claimant litigation. They are well within the range seen in this court. Subject to two matters, I am satisfied that all items claimed are reasonable and proportionate. The first relates to attendance at the second hearing. At the first hearing, attendance was by one Grade C, and one Grade D, fee earner, charging a combined hourly rate of £350. At the second hearing, attendance was by one Grade A and one Grade B fee earner, charging a combined hourly rate of £570. In my judgment, that was both unreasonable and disproportionate. I propose to allow a combined hourly figure of £400 (based on one Grade B and one Grade D fee earner at £275 and £125 respectively). That results in a reduction of £170 per hour for 8.5 hours which (with VAT) amounts (if my arithmetic is correct) to £1,734. The second matter is counsel’s fee for the second hearing. I appreciate (from Mr Scher’s written submissions on costs) that this has been reduced to £20,000 (plus £4,000 VAT). However, I consider this still to be excessive, particularly when compared with the fee paid to Mr Wilton KC of £12,500 for the second hearing. I would reduce this by £5,000 (plus VAT of £1,000) to a VAT-inclusive figure of £18,000. The total deductions are therefore £7,734. When applied to Mr Scher’s figure of £43,043.40 this produces a figure (again, if my arithmetic is correct) of £35,309.40 (inclusive of VAT). This falls to be reduced by 10%, producing a figure of £31,778.46.[38]The figure of £29,713.73 payable to Vincents falls to be set-off against the figure of £31,778.46 payable to the remaining claimants. By my calculations, that leaves a net sum due to the remaining claimants of £2,064.73. This should be paid to their solicitors within 14 days, i.e. by 4.00 pm on 20 August 2025. That makes it strictly unnecessary for me consider Mr Scher’s further submission that, should the court choose to make any order for costs against the remaining claimants, it should defer any assessment of Vincents’ costs until 28 days after the handing down of judgment following the substantive trial of this claim, and should not order any payment on account of costs. Had it been necessary for me to do so, I would unhesitatingly have rejected this submission. The summary assessment, and the award, of the costs of interim applications has had the welcome effect (and intended) effect of acting as a restraint upon the initiation, and the pursuit, of unnecessary, and inappropriate, interlocutory applications by introducing the salutary concept into civil litigation of ‘pay-as-you-go’. Mr Scher’s suggestion would run counter to that beneficial philosophy.[39]For all these reasons, I order Vincents to pay costs assessed (after netting-off) at £2,064.73 to the remaining claimants’ solicitors by 4.00 pm on 20 August 2025. It is, I think, common ground that the remaining claimants must pay Vincents’ costs of and occasioned by the amendments to the particulars of claim. If it is not, then I so hold. I direct that the parties should endeavour to agree, and file, a further costs order to give effect to this costs judgment.[40]That concludes this written judgment.