Costs schedules have been under the microscope in two High Court rulings, with the judge ordering costs in one despite the absence of a schedule and a party receiving a ticking off for complaining that the schedule was served by email in the other.
Vine v Belfield [2021] EWHC 3068 (QB) is a libel claim brought by the TV presenter Jeremy Vine over comments made on the defendant’s YouTube channel. There are harassment aspects to the claim too.
Mr Justice Nicklin had to adjourn what was meant to be a trial of preliminary issues because the defendant had not complied principally with an order made by Mr Justice Kerr in August to provide a written statement of case following a failure to comply with Nicklin J’s directions.
Nicklin J said: “Very significant culpability, in my judgment, falls on the shoulders of the defendant, and it is quite right, in my judgment, that he ought to pay the costs that have been thrown away by this exercise.
“The court needs to make clear to litigants that non-compliance with orders will ordinarily lead to the imposition of sanctions.
“Where they disrupt the proper management of litigation, that will almost inevitably follow. That has been the consequence of this failure to comply, and it is a serious failure to comply.”
Though Mr Vine had failed to serve a schedule in support of his application for costs – which under practice direction 44 is a relevant matter for the court to consider when deciding the issue of costs and their assessment – the judge said: “I am nevertheless satisfied that, as a matter of principle, the claimant is entitled to the costs of the application that was made before Kerr J, that led to his order of 7 August, and also the costs of today.
“These costs have been wasted as a result of a failure to comply the court’s orders and directions which has led to this hearing having to be aborted.”
Nicklin J accepted the invitation of Mr Vine’s counsel to order a detailed assessment, which he said would “preserve the proper opportunity of the defendant to raise such points as he considers he can to challenge the costs sought”.
He ordered payment on account of costs of £25,000, saying he would be “surprised if any significant dent was made” in the £31,000 set out in the statement of costs he had seen, particularly in relation to the costs incurred before Kerr J.
Meanwhile, Hall v Hall & Ors [2021] EWHC 3183 (Ch) was a summary assessment of costs to be paid by the third defendant following the court’s decision on various applications.
His Honour Judge Davis-White QC, sitting in Leeds as a High Court judge, said the third defendant’s solicitors, Chadwick Lawrence, raised a procedural issue over the claimant’s failure to observe his timetable for the service of a costs schedule because it had been sent by email.
“This was apparently relied upon because the third defendant did not serve written submissions in accordance with the timetable that I had laid down, but belatedly a few days later,” he said. “In effect, the suggestion was that the timetable terminated by reason of an initial failure by the claimant.”
HHJ Davis-White said his order had not provided a sanction and he would, if necessary, have extended time for service or permitted service by email.
“I also note that the claimant’s solicitors have made the points that, although the notepaper of Chadwick Lawrence indicates that service by email is not accepted, first, Chadwick Lawrence has in these proceedings routinely accepted service by email and secondly, that the acknowledgement of service filed by that firm on behalf of the third defendant amounts to an acceptance that service may be by email.
“I do not have to decide these points. However, I should note that I consider the approach taken by Chadwick Lawrence on this issue, and the ink spent upon it, to be contrary to the overriding interest.
“It suggests to me that Chadwick Lawrence, whether on instructions or as initiator, has failed to appreciate that I am not prepared to tolerate a failure to observe the requirements of the overriding objective where it lays down requirements on parties to proceedings.
“The failure to sensibly cooperate and take forward the proceedings was the conduct which caused me to make an order for costs on the indemnity basis against the third defendant on 28 September 2021.”
In Vine, Gervase de Wilde (instructed by Samuels Solicitors) appeared on behalf of the claimant and Mark Henderson (instructed by Henri Brandman & Co) on behalf of the defendant.
In Hall, written submissions of Newtons Solicitors for the claimant, and of Chadwick Lawrence for the third defendant.