Coward v Harraden [2011] EWHC 3092 (QB)

Case No HQ11X01420[2011] EWHC 3092 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 2/12/2011
Before
THE HONOURABLE MR JUSTICE TUGENDHAT
Between
MARTIN JOHN COWARDClaimantALLAN MARK HARRADENDefendant
Desmond Browne QC & Jacob Dean (instructed by Hogan Lovells International LLP) for ClaimantRichard Spearman QC & Justin Rushbrooke (instructed by Carter Ruck) for First IntervenerMark Warby QC (instructed by Bird and Bird) for Second IntervenerHearing Hearing dates: 16 November 2011
JudgmentMr Justice Tugendhat :
[1]The Claimant (“Mr Coward”) married Elena Ambrosiadou in 1983. In 1992 they became effectively partners in the business conducted through various corporations which shared the name IKOS, one of which is IKOS CIF Ltd (“IKOS”). It is a successful hedge fund business, of which Ms Ambrosiadou is the Chief Executive Officer. The relationship broke down in 2009 on both a personal and a business level. There has followed a mass of litigation in a number of different jurisdictions, one example of which is the case of Ambrosiadou v. Coward [2011] EWCA Civ 409 (12 April 2011).[2]In March 2011 Mr Coward found surveillance devices at the house in Sussex which the couple had bought when they were married. He subsequently obtained evidence that the Defendant (“Mr Harraden”) could give information which would lead to the identification of the person or persons responsible for placing the devices. He issued an Application Notice dated 11 April 2011 seeking an order of the court that Mr Harraden disclose such information. This is what is commonly known as a Norwich Pharmacal Order (Norwich Pharmacal v Customs and Excise Commissioners [1974] AC 133).[3]A Norwich Pharmacal order is an order made on an application by a person claiming to be the victim of wrongdoing. It is made against a respondent who is not alleged to be a wrongdoer, but who is alleged to have become innocently mixed up in the wrongdoing of some other person, unknown to the applicant. So the applicant asks for an order that the innocent respondent disclose information needed to identify the alleged wrongdoer. If the identity of the alleged wrongdoer is not known, he cannot be made a party. But even if the applicant suspects that he knows who the alleged wrongdoer is, the applicant may still have a good reason not to give notice to the alleged wrongdoer of the intended application, in order that, if his suspicions prove to be correct, the alleged wrongdoer will not have the opportunity to destroy evidence or otherwise frustrate the purpose of the application. So such applications may be heard in private. Any judgment delivered on the application may be either in private or in public. In the course of such an application allegations may be made affecting third parties who have no opportunity to state their side of the case, and there may be other reasons for not making public what has been said in court.[4]The searching of a person’s home and his correspondence, and the placing of surveillance devices, is one of the most serious interferences with a person’s right to respect for his private life. That right is recognised in Article 8 of the ECHR. The words ‘home and correspondence’ in Art 8 reflect the common law, from which Article 8 is derived. In Entick v Carrington(19 Howell’s State Trials 1029 (1765); 95 ER 807) Mr Entick was awarded what today would be over £40,000 in damages for the unlawful search of his home and correspondence, and it was not alleged that any physical damage had been done to his property.Whether or not such interference is also wrongdoing, or unlawful, depends upon whether it is carried out in accordance with law, and is necessary in a democratic society for, amongst other possible reasons, prevention of disorder or crime or for the protection of the rights and freedoms of others (Art 8(2)). The interference may be lawful if it is carried out pursuant to a relevant statute such as the Police and Criminal Evidence Act 1984 or the Regulation of Investigatory Powers Act 2000.[5]On 13 April 2011 Sharp J sat in private to hear the application. She granted the Norwich Pharmacal Order. She also ordered the preservation and custody of documents claimed by Mr Coward to be his property. She made provision for a further hearing in the event that Mr Harraden should claim a right not to provide the information. She gave two judgments: one open and one closed. At that stage the parties were anonymised by the use of letters of the alphabet in substitution for their names. Mr Harraden did claim a right not to disclose the information. Accordingly the matter came back before Sharp J on 20 April 2011. She held the second hearing also in private. She ordered the disclosure of certain information by Mr Harraden, being part of the information she had already ordered on 13 April 2011. She made a number of other orders designed to protect the privacy of the proceedings. She also gave a further judgment in private.[6]On 4 May 2011 Mr Coward issued a claim form naming both Ms Ambrosiadou and Kroll Associates UK Limited (“Kroll”) as defendants. The proceedings have been served on Kroll but not on Ms Ambrosiadou.[7]By letter dated 4 May Mr Coward through his solicitors, Hogan Lovells, gave notice that he intended to apply for the restrictions on publication of the private judgments to be lifted. By letter of 10 May Ms Ambrosiadou made clear she opposed that. She accused Mr Coward of abusing the process of the court, saying:
“it is our client’s firm belief that your client is intent on ‘laundering’ damaging allegations about her into the public domain via legal proceedings…”
This was before the issue of Mr Coward’s Application Notice. IKOS made clear on 19 May that it took the same stance. They wished to intervene in the Norwich Pharmacal proceedings brought by Mr Coward against Mr Harraden. I shall refer to Ms Ambrosiadou and IKOS together as “the interveners”.[8]On 16 May 2011 Mr Coward issued an Application Notice seeking an order that the various derogations from open justice contained in the orders made by Sharp J dated 13 and 20 April 2011 be discharged on the grounds that those derogations were no longer needed for the purpose for which they had been imposed. By that time Mr Coward knew that Ms Ambrosiadou and at least one of the IKOS companies wished to make representations by counsel opposing the lifting of the restrictions in question. A letter of the same date included the words: “if you wish to propose redactions or revisions, or to suggest what information can and should be contained in a further public judgment, we will give careful consideration to any such proposal”.[9]On 29 May 2011 there was extensive coverage in the press about the dispute between Mr Coward and Ms Ambrosiadou. It was reported that she accused him of stealing secrets of her success and that he was making accusations of wrongdoing against her. On 1 June 2011 Bloomberg published an article headed “Coward sues IKOS’s Ambrosiadou, Kroll over hidden surveillance”. This refers to the proceedings issued on 4 May.[10]On 2 June 2011 Ms Ambrosiadou’s then solicitors, Schillings, wrote to Hogan Lovells, saying, amongst other things, that Ms Ambrosiadou had no intention of engaging in any surveillance of Mr Coward in this jurisdiction, and offering to give an undertaking to that effect.[11]On 5 June 2011 there appeared in the Sunday Times an article headed “Spies Bungle Tycoon’s Bid to Bug Husband”.[12]On 7 July 2011 Kroll served a defence to Mr Coward’s claim.[13]On 15 July 2011 solicitors for Mr Coward wrote to Carter-Ruck who had by then replaced Schillings as solicitors acting for Ms Ambrosiadou. By this time the Application Notice issued on 16 May 2011 was due to be heard six days later on 21 July. A copy of this letter was sent to Bird & Bird, solicitors for IKOS, and to Slaughter and May, solicitors for Kroll. Hogan Lovells wrote that it was apparent from correspondence from Schillings, and from Bird & Bird that there was an intention to introduce a mass of irrelevant and prejudicial material with the result, so it was said, that pursuit of the Application Notice had become massively disproportionate to the interests at stake. The letter referred to the recent press coverage and enclosed a draft order. The draft made provision for varying certain provisions of the earlier orders of Sharp J, but not for the lifting of the reporting restriction on the private judgments. As to that, Mr Coward was in effect inviting agreement to the restrictions remaining in force. What Mr Coward was proposing on 15 July was exactly what Ms Ambrosiadou had proposed on 10 May.[14]It was also proposed to put a draft consent order before Sharp J to be considered on paper. Mr Harraden and Kroll raised no objection to what was proposed. They had not taken any further part in the matter of the Norwich Pharmacal order. On 19 July Carter-Ruck for Ms Ambrosiadou wrote agreeing to the variation of the orders in the form of the draft, but requiring that their costs should be paid. They also wrote that Ms Ambrosiadou was considering applying for the Norwich Pharmacal Order to be set aside, an application which has not in fact been made. On the same day the solicitors for IKOS adopted a similar position.[15]On 3 August 2011 Sharp J made an order in the terms agreed, that is to say with certain variations of the order as at 13 and 20 April but retaining the restrictions on reporting of the hearings and of the private judgments. The identities of the parties were given (as in the title to this judgment) and the order provided explicitly for publication of the open judgment. The order concluded: “Issues of costs as between the Claimant and Elena Ambrosiadou and IKOS Asset Management Limited are reserved to be heard at a hearing before Sharp J on a date to be fixed if not agreed in advance”.[16]Sharp J has other commitments, and so the matter has come for determination before myself.[17]The parties have since August entered into correspondence with a view to agreeing the issue of costs but no agreement has been reached. On 10 October 2011 Mr Coward made an offer in two alternatives: it was to meet the reasonable costs incurred either by Ms Ambrosiadou or by IKOS (but not both) relating to the Application Notice of 16 May, such costs to be assessed if not agreed on the standard basis. Alternatively he offered to pay half the costs of each of the two of them on the same basis. He asked for an indication for the amount of costs in question. Both the interveners rejected this proposal, requiring that their costs be paid in full.[18]On 10 November 2011 in a letter initially marked “without prejudice save as to costs of the hearing”, but later made an open letter, Mr Coward offered to pay a total of £100,000. On the same day solicitors for IKOS replied saying that their costs would be £157,735.65 at ten o’clock on 11 November and counter offering that they would accept £100,000 payable to IKOS in settlement of its costs. Carter-Ruck wrote saying that they were unable to provide a figure for costs. They referred to the fact that part of the work had been done by Schillings, and that Schillings had not yet apportioned the costs between the Norwich Pharmacal proceedings and the claim issued on 4 May 2011 (albeit that that claim form was never served on Ms Ambrosiadou).

THE LAW ON PUBLICATION OF JUDGMENTS

[19]Hodgson v Imperial Tobacco Ltd [1998] 1 WLR 1056 is one of a number of judgments in recent years in which the importance of open justice has been emphasised. Lord Woolf MR cited with approval a passage from Sir Jack Jacob’s Hamlyn Lecture, The Fabric of English Civil Justice (1987), pp. 22–23 which included the following:
“The need for public justice, which has now been statutorily recognised, is that it removes the possibility of arbitrariness in the administration of justice, so that in effect the public would have the opportunity of ‘judging the judges:’ by sitting in public, the judges are themselves accountable and on trial. … The opposite of public justice is of course the administration of justice in private and in secret, behind closed doors, hidden from the view of the public and the press and sheltered from public accountability.,…”
[20]In that case a large number of plaintiffs brought actions against the defendants, three tobacco companies, claiming damages for personal injuries by reason of cancer which they claimed was caused by smoking cigarettes manufactured by the defendants. On 10 October 1997 a hearing for directions was heard ‘in chambers’ and an issue arose as to what the parties could say about that hearing. The judge had not delivered a judgment, and had said that a copy of his directions could be released to the public, but that the parties and their advisers were not to make any comment to the media in relation to the litigation without the leave of the court. Lord Woolf said at p1073G:
“What has happened since the order has been made strongly suggests that it would have been preferable to have given all the directions which were made on 10 October in open court, together with a judgment explaining why they were made, so that it would not have been necessary for the legal advisers to communicate with the media in order to explain what had happened.”
[21]It is in accordance with this guidance of Lord Woolf that it is now common for judges sitting in the Queen’s Bench Division to give formal judgments setting out their reasons for decisions on interim applications (that is any hearing other than a trial), just as they had always done after a trial (and just as judges in the Chancery Division had always done in interim applications). The giving of reasoned judgments is one of the ways in which judges are accountable to the public. The practice advances the public interest in a climate of opinion where there is increased emphasis on the need for accountability in the institutions of the state. The decision in Hodgson brought to an end an unjustifiable difference in practice between the two Divisions of the High Court.[22]One reason why it may be necessary for a judge to sit in private (or ‘in camera’ as it used to be called) is given in CPR Part 39.2(3): “(e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing”.[23]In a Norwich Pharmacal application, if the applicant proves to be mistaken in any of his allegations, it might be unjust not only to the respondent, but also to any other person against whom allegations are made, that the judgment should be published containing the allegations which may turn out to be incorrect or unfair. And even if the applicant’s suspicions are proved to be correct by the answers given by the innocent respondent, it may still be unjust for the judgment to be published, because the judge will not have heard the other side of the case that might be put forward by the persons against whom allegations have been made. It is a fundamental principle of justice that, where possible, the judge should hear both sides of the case before making a public judgment.[24]It follows that in many interim applications, there is some tension between the public interest in a judge always giving reasons in public for any decision, including interim decisions, and the public interest in a judge not giving any judgment until she has heard representations from all parties involved in the case.[25]However, the reasons for not making a judgment public are not always reasons of justice or fairness to respondents or third parties. Nor is it always the case that a private judgment contains matters of importance to the public. Lord Woolf MR also remarked in Hodgson at p1071A-B that it is the fact that “the great majority of the matters dealt with in chambers are of no interest to anyone except those immediately involved”. That applies today to most interim applications that are heard in the courts.[26]Competing public interests (in this case between open justice and the need to hear both sides of any dispute before giving a judgment) mean that there are occasions when there is an issue between the parties as to what a judgment should or should not contain. This issue usually arises following the circulation in draft of what the judge proposes to deliver as a public judgment. But the principles must be the same when the proposal is to make public a judgment initially delivered in private. The principles are explained in the supplementary judgment of 26 February 2010 in R (Mohammed) v Foreign Secretary (No 2) [2010] 3 WLR 554 at p646ff.[27]When an issue of this kind arises it is commonly dealt with by letters sent by each of the interested parties to the judge, through her clerk, by e-mail, with the other parties copied in. The point is usually a short one which can easily be resolved by the judge on paper. It is only on very rare occasions there has to be an oral hearing. It is even rarer for there to a dispute about the costs of such an exercise, such as I now have to resolve.

SUBMISSIONS

[28]Mr Spearman submits that Mr Coward should pay all of Ms Ambrosiadou’s costs. His main point is that what Mr Coward agreed to days before the hearing was what Schillings had proposed on 10 May before the issue of the Application Notice. All the costs could have been avoided if he had accepted that proposal.[29]In his skeleton argument he then sets out the reasons for Ms Ambrosiadou’s intervention. I cannot set these out without in effect making public the contents of the judgment which Sharp J has ordered to remain private.[30]What I can say is that the matters set out by Mr Spearman go far wider than the issue of whether the judgment should or should not remain private.[31]The four points all seem to me to be largely directed to the application which Ms Ambrosiadou intimated, but never made, namely to apply to discharge the Norwich Pharmacal order. The fourth point refers to the fact that Mr Coward did not pursue the claim he commenced against Ms Ambrosiadou on 4 May, from which he invites the court to infer that the Norwich Pharmacal order was not applied for in good faith. No court could draw an inference of bad faith on an application made on the basis of the papers.[32]Mr Spearman submits that it is not in dispute that Ms Ambrosiadou had rights which justified her intervention in relation to the Application Notice of 16 May. He submits that there is evidence that both interveners had been advised that they should be separately represented, and privilege has not been waived. So the court ought not to go behind that. There is in any event an obvious risk in instructing the same legal team when there is so much litigation involving the same parties in so many other courts.[33]Mr Spearman opposes Mr Browne’s submission that I should assess the costs summarily. No party has prepared for such an assessment because there was no hearing of the substantive application which was resolved by the consent order. He notes that there has been no oral hearing, and submits that that is what is referred to in the Costs Practice Direction at para 13.2(2). He submits that a summary assessment would be contrary to the overriding objective (Part 1.1) in that it would require an oral hearing on costs, where otherwise no such hearing would be required. I take him to mean that it would require an oral hearing before a High Court Judge, where otherwise no such hearing would be required, because his own submission that costs should be assessed would require a hearing before a Costs Judge. Moreover, he submits summary assessment is inconvenient in a case such as this where Carter-Ruck has not been able to prepare a costs schedule, which would have to include the costs incurred by their predecessors Schillings. Moreover, The Costs Practice Direction para 13.4 points away from there being a hearing on costs after the parties have agreed all other matters in issue.[34]Mr Warby for IKOS supports the submissions of Mr Spearman. He goes so far as to submit that there was never any proper basis for Mr Coward to make the application that the private judgments be made public, and that the reasons given for abandoning it are without merit. Although no detail can be given in this judgment, Mr Warby submits, and it is common ground, that the reasons advanced by the two interveners why the private judgments should not be made public are what he refers to as “reputational and commercial interests”. He submits that these were the only reasons why it was right for the hearings and the judgments to be private, as they were.[35]Mr Warby refers to the fact that by letter of 15 June Schillings had raised in correspondence questions arising out of the media publications at the end of May and beginning of June. Schillings had asked Mr Coward for confirmation that he had not made disclosures in contempt of court and that he had not supplied information to the media upon which such stories had been based. Hogan Lovells denied that it was Mr Coward who had released information. It transpired that some information may have been released by the court office by inadvertence, but Hogan Lovells responded with their own allegations that it was Ms Ambrosiadou who appeared to have been releasing information to the press. Mr Warby submits that between 16 May and 17 July Ms Ambrosiadou had made clear that she considered that there was never a basis for the Norwich Pharmacal application without notice, or at all, and that there were serious issues of material non-disclosure by Mr Coward.[36]IKOS ask for their costs to be paid on an indemnity basis. There was no proper basis for bringing the application and none of the reasons put forward for abandoning it has merit. If Mr Coward had wanted to advance a case that the interveners were introducing irrelevant and disproportionate points, then he could and should have made that point at a substantive hearing.[37]Mr Browne submits that Mr Coward should pay no more than one set of costs, or the equivalent in the form of a half of each of the two interveners’ costs.[38]He submits that the reasons why the judgments were made in private were not reputational, but related to other considerations which had ceased to apply by the time that Mr Coward applied for an order that they be made public. Since the making of private judgments is a derogation from the principle of open justice, it was appropriate for Mr Coward to draw this to the attention of the judge, whether or not he also perceived it to be in his interests to do so. It was only the interveners who contend that the reasons for continuing the derogation from open justice are reputational. While Mr Coward accepts that there may be reputational issues at stake, he had addressed that by his letter of 16 May 2011 inviting proposals as to the redaction of the private judgment before it was made public, but neither of the interveners had suggested any redactions.[39]The reasons given and maintained by Mr Coward for agreeing that the judgments should remain private are that there has been extensive press coverage, for some of which he submits the interveners have been responsible, and that the cost of resolving the dispute had now become disproportionate to the issues at stake. In his arguments Mr Browne elaborated upon the reasons why Mr Coward submits that the press publicity must at least in part have been caused by the interveners, in particular IKOS. He submitted that it was disproportionate to introduce into the dispute on the issue of making public the private judgments the issues that were raised by the interveners as to whether the Norwich Pharmacal order should have been made at all. But even as late as 15 July there was prepared and served the twenty page witness statement of Mr Guest of IKOS Asset Management Ltd (another IKOS company) alleging material non-disclosure (and other issues relating to the representation of Mr Coward).[40]Mr Browne submits that given the public interest in open justice it was appropriate for Mr Coward to bring back before the court the question whether the private judgments should remain private, and that it would be reasonable to contend that there should be no order for costs.

SUMMARY ASSESSMENT OF COSTS

[41]In HomeOffice v Lownds: Practice Note [2002] EWCA Civ 365, [2002] 1 WLR 2450, the Court of Appeal emphasised the importance of proportionality. Lord Woolf CJ said this: “3. The requirement of proportionality now applies to decisions as to whether an order for costs should be made and to the assessment of the costs which should be paid when an order has been made. Part 44.3 which deals with the making of an order for costs does not specifically use the word proportionate but the considerations which should be taken into account when making an order for costs are redolent of proportionality. … 8. The new requirement of proportionality, which is in mandatory and unqualified terms in Part 44.4(2), is important in itself, since it should discourage parties from incurring disproportionate costs as those costs will not be recoverable unless an indemnity order is made. This restriction on costs should encourage parties to conduct litigation in a proportionate manner, which is an important objective of the CPR. …"[42]The CPR Part 44 provides: 44.3(1) The court has discretion as to –(a) whether costs are payable by one party to another;(b) the amount of those costs; …. (2) If the court decides to make an order about costs – (a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but (b) the court may make a different order.... (4) In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including – (a) the conduct of all the parties; …(c) any payment into court or 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. (5) The conduct of the parties includes – (a) conduct before, as well as during, the proceedings …; (b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; (c) the manner in which a party has pursued or defended his case or a particular allegation or issue; and(d) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim…. 44.7 Where the court orders a party to pay costs to another party (other than fixed costs) it may either – (a) make a summary assessment of the costs; or (b) order detailed assessment of the costs by a costs officer, unless any rule, practice direction or other enactment provides otherwise. (The Costs Practice Direction sets out the factors which will affect the court’s decision under this rule)[43]The Costs Practice Direction provides: 13.2 The general rule is that the court should make a summary assessment of the costs:... (2) at the conclusion of any other hearing, which has lasted not more than one day, in which case the order will deal with the costs of the application or matter to which the hearing related. If this hearing disposes of the claim, the order may deal with the costs of the whole claim;… unless there is good reason not to do so e.g. where the paying party shows substantial grounds for disputing the sum claimed for costs that cannot be dealt with summarily or there is insufficient time to carry out a summary assessment. … 13.5 (1)It is the duty of the parties and their legal representatives to assist the judge in making a summary assessment of costs in any case to which paragraph 13.2 above applies, in accordance with the following paragraphs. (2) Each party who intends to claim costs must prepare a written statement of those costs showing separately in the form of a schedule: …[setting out the hours etc claimed] 13.6 The failure by a party, without reasonable excuse, to comply with the foregoing paragraphs will be taken into account by the court in deciding what order to make about the costs of the claim, hearing or application, and about the costs of any further hearing or detailed assessment hearing that may be necessary as a result of that failure…. 13.13 The court will not give its approval to disproportionate and unreasonable costs. Accordingly: … (b) If the judge is to make an order which is not by consent, the judge will, so far as possible, ensure that the final figure is not disproportionate and/or unreasonable having regard to Part 1 of the CPR. The judge will retain this responsibility notwithstanding the absence of challenge to individual items in the make-up of the figure sought. The fact that the paying party is not disputing the amount of costs can however be taken as some indication that the amount is proportionate and reasonable. The judge will therefore intervene only if satisfied that the costs are so disproportionate that it is right to do so.[44]It is not open to the court to proceed to a summary assessment without the parties having provided schedules. As Black LJ said in Morgan v The Spirit Group Ltd [2011] EWCA Civ 68:
“…. it is very important for the judge to take a global view of the proportionality of the costs incurred but, before he fixes a figure for costs, he must advance from that to an item by item consideration of the individual elements of the bill by way of a summary assessment or alternatively, he must direct a detailed assessment which will fulfil that task”
.

DISCUSSION

[45]It is not in dispute that the interveners are to be regarded as being in effect the successful parties to the dispute raised on the Application Notice of 16 May 2011. In keeping the private judgments private they achieved what they wanted.[46]On the question whether it is reasonable for the interveners to be separately represented, I accept their submissions. Although Ms Ambrosiadou is the Chief Executive Officer of IKOS, the possibilities for conflicts of interest to arise between her and the companies are apparent. And absent a waiver of privilege, I cannot go behind the statements for both interveners that they had been advised that they should be separately represented.[47]In my judgment the considerations of open justice made it appropriate for Mr Coward to bring back before the court the question whether the private judgments should remain private or not. That is so whether or not he also perceived it to be in his own interests that they should be made public.[48]However, in my judgment the issues of whether the Norwich Pharmacal order should ever have been granted, or whether it should have been discharged for non-disclosure, and the issues of whether either Mr Coward or one of the interveners had contributed to the press coverage, are not issues which relate to the Application Notice of 16 May 2011 with which alone I am concerned.[49]It would not be appropriate for me to comment upon the likelihood of success of the applications to set aside the Norwich Pharmacal order which were intimated but never made. It is sufficient that they were not made. It cannot be right that the interveners should include in the costs of the application which Mr Coward has not pursued the costs incurred by the interveners in preparing their own applications which in the event they never made. Still less is it reasonable for them to include the costs of the correspondence or other work involved in exploring the issue as to whether one or other of those involved in this litigation was in breach of any order by having contributed to the press coverage.[50]It is true that if the Norwich Pharmacal order had never been applied for, there would not have been a private judgment. But it does not follow that the contents of the private judgments would have remained private if there had been an application to discharge the Norwich Pharmacal order, successful or otherwise.[51]It is only necessary to ask the question: how is it possible for a party to incur £150,000 in legal fees to oppose an application to make public a judgment that has been delivered in private? for it to be obvious that that is not possible. Much the greater part of the vast costs said to have been incurred must inevitably relate not to the Application Notice of 16 May, but to one of the other issues, or even, as indicated by Schillings, to the Part 7 proceedings which are being pursued against Kroll.[52]The papers for this hearing consist of three lever arch files containing over 1000 pages of documents. Counsel estimated that 2 to 3 hours would be required for the judge to read into the case, and they were not wrong. I was asked to and did read through much of the 200 or so pages of correspondence starting with Hogan Lovells’ letter of 4 May and ending with the letters from Bird & Bird and Carter-Ruck of 11 November. There are only a few pages from Mr Harraden and from Slaughter & May for Kroll, who make no application for or in relation to costs.[53]In having regard to the matters referred to in the extract from Part 44.3(4) above, in my judgment the proper order in this case is no order for costs.[54]I express no view as to whether it was appropriate or reasonable for the interveners to raise the issue of whether the Norwich Pharmacal order ought to have been made, or ought to be set aside, or whether Mr Coward was in breach of any order or contributed to the press publicity. In my judgment those issues were not sufficiently relevant to the issues raised by the Application Notice of 16 May for the costs incurred in respect of them to count as costs in that application. I have not been asked to investigate whether it was appropriate or reasonable to raise these issues at all. If their clients wished these issues to be raised, their solicitors were entitled to act on their instructions and to charge for their work. But none of that makes these costs costs in the application.[55]If (contrary to my view) the other issues raised by the interveners to which I have referred are relevant to the issue raised by the Application Notice, then in my judgment the conduct of the interveners in raising and pursuing to the extent that they have the other issues which they have raised was very unreasonable. They have greatly exaggerated their case.[56]Moreover, Mr Coward has made offers within Part 44.3(4)(c).[57]If I am wrong about that, the court will need to determine what proportion of the costs claimed relate to the question whether the private judgments should be made public and what relates to the other, in my view irrelevant, issues.[58]If this were required to be done by a Costs Judge, he would have to set aside at least as much reading and hearing time as I have. The hearing before me was completed in ½ a day after a delayed midday adjournment. The preparation of this judgment also required some hours. So the matter has occupied over one day of a judge’s time. It is a requirement of Part 1.2 that the court give effect to the overriding objective set out in Part 1.1. That includes “allotting to [a case] an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases”. In my judgment more than enough of the court’s resources has already been allotted to the application notice of 16 May, and it would not be right to refer the matter for a detailed assessment.[59]So if I had been minded to make an order for costs, I would have summarily assessed them. I accept that I could not do that without schedules being prepared by solicitors. But I could direct that schedules be prepared, and decide the matter on paper. That is what I would have done, if I had made an order for costs.[60]In the event it is not necessary for me to decide this point, but in case it should arise later in this case, it is my view that I do have jurisdiction to make a summary assessment in this matter. Part 44.7 does not limit the court’s jurisdiction to cases where there has been an oral hearing. Although the Practice Direction para 13.2 does suggest that summary assessment will normally follow an oral hearing, it cannot be read as restricting the general jurisdiction given by Part 44.7.

CONCLUSION

[61]For the reasons set out in this judgment, there will be no order for costs on the Application Notice dated 16 May 2011.

Cited in 3 later judgments