SCHEDULE OF COSTS SERVED 18 MINUTES LATE DOES NOT LEAD TO COSTS BEING DISALLOWED

I have already commented on the highly technical points being taken as a result of the Mitchell decision. In Devon County Council -v- Celtic Bioenergy Ltd   [2014] EWHC 309 (TCCStuart-Smith J considered the effect of a schedule of costs being served 18 minutes late. The blunt answer was that there was a “substantive irrelevance” and no account would be taken of the 18 minutes delay.

“The Costs of the Application on 20 December 2013

1. Celtic takes a preliminary point that Devon failed to serve a Schedule of Costs 24 hours before the hearing on 20 December 2013. That is factually correct. In the run up to the hearing of 20 December 2013, no Schedule of Costs was served. Devon says that this was because Celtic was not engaging with the process and did not engage constructively other than to take the point that no invoice had been provided. In the event, a Schedule of Costs was served at 14.18 on 16 January 2014, fractionally late for the hearing the next day. At that hearing, Counsel for Devon mistakenly told the Court that the Schedule did not include Devon’s costs for the hearing on 20 December 2013. It is not clear how that error occurred, though it may be partly explained by the fact that, in order to conclude the hearing, it was nearly 6 pm before judgment had been delivered and the question of costs arose. On 23 January 2014 Devon served a separate Schedule of Costs including only its costs of the hearing on 20 December 2014. Celtic has made detailed submissions on that Schedule which show that it has suffered no real disadvantage in dealing with the sums claimed.

1. On these facts, Celtic submits that Devon’s costs of the hearing on 17 December 2013 should be disallowed entirely or significantly reduced. It relies upon CPR PD 44, at 9.5(4)(b) and 9.6 and relies upon Andrew Mitchell v Newsgroup Newspapers Ltd [2013] EWCA Civ 1537 at [40-42], a passage which is already so well known that it does not need to be set out again here.

1. The provisions of the Practice Direction upon which Celtic relies are intended to ensure that costs of short applications can be dealt with summarily and immediately after the hearing. That is why paragraph 9.6 says that the failure of a party, without reasonable excuse, to comply with paragraph 9.5 will be taken into account by the court in deciding what order to make about the costs of an application “and about the costs of any further hearing or detailed assessment hearing that may be necessary as a result of that failure.” Here, it is at least questionable whether in the current climate, the fact (which I consider to be established) that Celtic was making no attempt to engage constructively with the process of Devon’s application on 20 December 2013 other than to stave off the application for an interim injunction by belatedly calling for an invoice amounts to “reasonable excuse” for the purposes of paragraph 9.6. However, and on the assumption against Devon that it does not, when Devon’s failure to comply with paragraph 9.5 is taken into account it can be seen that Celtic’s submission has no merit at all other than its ability to identify the failure. The failure itself had no practical effect at all. Ramsey J reserved the question of costs, so there was no question of costs being assessed at the hearing. There is no suggestion that the absence of a Costs Schedule from Devon formed any part of his reasons for reserving costs. On the contrary, even in the absence of a substantive judgment, it is plain that the order reserving costs was a reaction to the fact that the reason why an interim injunction was not given was Knowles’ letter on 19 December 2013 calling for an invoice – a move which, in my judgment, is fairly to be described as a “wheeze”. The occasion for the issue of costs to be addressed was the hearing on 17 January 2014, by which time a schedule including the costs of the hearing on 20 December 2013 had been submitted: the fact that it was sent 18 minutes late on 16 January 2014 is trivial and to be ignored.

1. Accordingly, while taking Devon’s failure into account as directed by paragraph 9.6, I also take into account Celtic’s conduct, the substantive irrelevance of the failure, and the complete absence of any disadvantage to Celtic. In the circumstances of this case I decline to make any deduction from the costs that would otherwise be ordered to be paid by Celtic in respect of Devon’s injunction application on 20 December 2013″