A defendant did not suffer any prejudice from the claimant failing to produce its statement of costs before a directions hearing and so it could be taken into account, a deputy master has decided.
Tribe v Elborne Mitchell LLP (Costs) [2021] EWHC 1252 (Ch) concerns a retired solicitor’s claim over his closing entitlements from his former City law firm.
There were directions hearings in February and March for which the claimant sought his costs on an indemnity basis.
As a preliminary point, the defendant argued that Mr Tribe was not entitled to rely on his statement of costs because he failed to comply with paragraphs 9.5(4) and 9.6 of CPR PD 44, which require a statement of costs to be filed at court and served on the opposing party not less than 24 hours prior to the hearing. The N260 was filed some days after the hearing.
Deputy Master Raeburn said there was “no suggestion” from the claimant that he had a reasonable excuse for his failure to comply. “I therefore proceed on the basis that paragraph 9.6 applies and that such failure must be taken into account by the court.”
But he said he bore in mind the guidance given by Neuberger J (as he then was) in MacDonald v Taree Holdings [2001] 1 Costs LR 147 on the correct approach to be adopted by the court when faced with a failure of compliance of this nature, and in particular that the court’s reaction should be “proportionate”.
The deputy master found no aggravating factors and said the defendant had not argued that it suffered any prejudice as a result of the claimant’s failure.
“The defendant has been able to make submissions on the claimant’s statement of costs and submits that ‘it is in any event manifestly excessive in a number of respects’.
“I am therefore satisfied that the defendant has indeed had an opportunity to make out its case in opposition to the statement of costs and that it has not suffered prejudice in the manner contemplated in MacDonald v Taree Holdings.
“Given my finding as to the lack of prejudice, I shall therefore proceed to determine and assess costs in the normal way.”
Deputy Master Raeburn went on to assess the costs.
James Mather (instructed by CM Murray) for the claimant. Sarah Harman (instructed by Elborne Mitchell) for the defendant.