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09 February 2022
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Keeping to the schedule

Ian Curtis-Nye reports on two cases involving failure to file a costs schedule

Two recently reported cases have yet again brought into sharp focus the consequences of failing to file a costs schedule, and what the requirements are under the civil procedure rules.

In the first case the judge ordered costs despite the absence of a schedule and in the other a party received a ticking off for complaining that the schedule was served by email.

The law

The starting point is paragraph 9.5(4)(b) of the civil procedure rule which governs the filing and serving of costs schedules where summary assessment is sought, and the hearing isn’t a fast-track trial. The rule requires ‘a statement of costs must be filed and served as soon as possible and, in any event, not less 24 hours before the time fixed for the hearing.’

Recent developments

The first case is, Vine v Belfield [2021] EWHC 3068 (QB) which involved a libel claim brought by broadcaster Jeremy Vine as a result of comments made by a former local radio presenter, Alex Belfield on YouTube. Alongside this claim, there was also a harassment claim being brought.

The trial of preliminary issues was adjourned by Mr Justice Nicklin as a result of the defendant’s failure to comply with a previous order made by Mr Justice Kerr to provide a written statement of case following failure to comply with directions. Nicklin J went on to find that ‘Very significant culpability, in my judgment, falls on the shoulders of the defendant, and it is quite right, in my judgment, the he ought to pay the costs that have been thrown away by this exercise.’

Nicklin J went on to make clear that where there has been non-compliance with an order, the courts should ordinarily impose sanctions and ‘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.’

Despite the claimant’s failure to serve a schedule of costs in support of the application for costs as required under practice direction 44, the judge held that ‘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.’

Counsel for the claimant invited the court to make an order for detailed assessment to ensure the defendant had an opportunity to raise such challenges as they consider appropriate and ordered a payment on account of costs for £25,000 against the £31,000 sought.

The second High Court decision in Hall v Hall & Ors [2021] EWHC 3183 (Ch) was a summary assessment of costs following the outcome of various applications. These applications arose as a result of an order laid down for adjustments to the timetable by HHJ Davis-White QC relating to existing statements of case in the proceedings.

The judge ordered that the costs of the claimant and of the first, second and fourth defendants’ applications should be paid by the third defendant, represented by Chadwick Lawrence LLP, all on the indemnity basis.

The defendants' costs were summarily assessed in the sum of £11,342, plus VAT. The claimant's costs were ordered to be the subject of summary assessment and the order laid down a timetable for submission of a schedule of costs and thereafter written submissions.

In objecting to the costs, the third defendant argued that the timetable set by the judge had not been observed on the basis that the costs schedule had been served by email. Despite the third defendant stating on their letterhead that they do not accept service by email, the third defendant had routinely accepted service by email during the proceedings.

HHJ Davis-White QC held 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 third defendant also objected to the claimant’s schedule of costs being served late, by some two or three hours. The judge found that this has no causative effect on the decision to order costs and awarded the claimant the sum of £1,728 inclusive of VAT for their costs.

Conclusion

Both of these decisions address late service or failure to serve a costs schedule in line with practice direction 44. In both decisions the judges were influenced by the conduct issues raised in concluding that costs would still be awarded in favour of the receiving party.

These decisions should also be read in the context of the conduct issues being addressed and an awareness that failure to file a costs schedule pursuant to the practice direction still can result in failure to recover costs where a judge is so minded.

Ian Curtis-Nye is a Council member of the Association of Costs Lawyers and a Costs Lawyer and Partner at Lyons Davidson

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.

 This article first appeared in Litigation Funding Magazine in February 2022

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