LATE SERVICE OF SCHEDULE OF COSTS LEADS TO AN ORDER FOR DETAILED ASSESSMENT (WITH A SUBSTANTIAL INTERIM PAYMENT)

In Vine v Belfield [2021] EWHC 3068 (QB) Mr Justice Nicklin considered the position where a claimant had failed to file a Schedule of Costs.  He held that the appropriate course of action was to make an order for detailed assessment, with a substantial interim payment being made.

THE CASE

The claimant brought an action for defamation. The defendant failed to comply with various court orders.   This led to the court adjourning the trial of preliminary issues. The judge determined that the defendant should pay the costs. However the claimant had not served a costs schedule in advance of the hearing.

THE JUDGMENT ON COSTS

The judge found that the non-service of the Schedule meant that the costs would have to be subject to a detailed assessment. However there would be an interim payment for a substantial part of the costs claimed.

31                I am going to deal with the issue of costs now. There are two stages to it: first is the principle. I have explained in the judgment what has happened today and why the Court has taken the step it has. In summary: as a result of a failure by the Defendant to comply with orders of the Court, principally the order in relation to originally setting out in a written statement of case its position on the preliminary issues that were due to be determined at trial, the Court has had to abort the exercise that would ordinarily have been a straightforward one. 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.

32                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.

33                Mr Henderson has pointed out that the Claimant has failed to serve the relevant statements of costs in support of the application for costs that has now been made. He has referred me to the Practice Direction to CPR 44 §§9.5(4) and 9.6. The effect of those provisions is that the failure to serve a statement of costs is a relevant matter for the Court to consider both when deciding the issue of costs and any assessment of those costs.

34                Notwithstanding the failure to serve the statement of costs, 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.

35                Turning to the assessment of those costs, the failure to serve a statement of costs disables the paying party from having an opportunity to consider whether there are objections that can be taken to the costs. I did offer Mr Henderson and the Defendant the possibility of adjourning until 2 o’clock to enable instructions to be taken but Mr Henderson rejected that in favour of inviting the Court to deal with the matter by directing that the costs should be subject to a detailed assessment, if not agreed. In order, therefore, to preserve the proper opportunity of the Defendant to raise such points as he considers he can to challenge the costs sought to be recovered under the costs order that I have made, I will direct the detailed assessment of those costs if they are not agreed.

36                Mr de Wilde, on behalf of the Claimant, has applied for a payment on account of those costs. Such application appears to me to be irresistible in the circumstances, there can be no reason (and none is advanced) why a payment on account should not be ordered. The total sum in the statement of costs is just short of £31,000, possibly £32,000. I have looked myself at the statement of costs and considered the time, particularly the identified time spent certainly in relation to the application before Kerr J. I would be surprised if any significant dent was made in those costs on any detailed assessment. There is slightly more that is available for argument, potentially, on a detailed assessment of costs in relation to the costs of today. Taking all of those factors into account and doing the best I can, the sum that I will order to be paid by way of payment on account of those costs is £25,000.