COST (MEGA) BITES 35: THE DETAILED ASSESSMENT THAT LASTED 104 DAYS : COSTS JUDGE REFUSES TO VARY EARLIER DECISION

November 18, 2022 · by · in Applications, Assessment of Costs

In Deutsche Bank AG v Sebastian Holdings Inc. & Anor [2022] EWHC 2920 (SCCO) Senior Costs Judge Gordon-Saker gave a judgment which finalised a detailed assessment that had lasted 104 days.  The judge found that, prior to the assessment concluding,  he had jurisdiction to alter an earlier decision made in the course of the assessment. However there was no “new” information in this case.  The information on which the paying party was seeking to rely was available at the time the decisions were made.

THE CASE

The claimant had succeeded after a 44 day trial.  In an earlier judgment the judge described how.

“This was a huge piece of litigation and was hard fought. There were substantial interlocutory skirmishes, including over jurisdiction. The Claimant’s disclosure involved the manual review of over 1.5 million documents, with about 200,000 documents disclosed as at May 2012. The parties served 54 statements of witnesses of fact and 40 experts’ reports. There were 10 joint experts’ reports. The experts’ reports ran to over 6,500 pages. Written opening submissions ran to over 1,700 pages. Written closing submissions ran to over 2,700 pages. The judgment ran to 428 pages. Both parties instructed teams of counsel. The Claimant is credited on the title page of the judgment with 2 Queen’s Counsel and 2 junior counsel and the Defendant with 1 Queen’s Counsel, 1 Senior Counsel and 3 junior counsel.”

The costs claimed exceeded £53 million.

THIS APPLICATION

This application related to the costs of Deloitte.  Certain of these costs were reduced on assessment at an earlier hearing. The judge observing “time spent in mock cross-examination is not, in my view, time reasonably incurred.”

THE APPLICATION FOR A REVIEW

Mr Vik, who had been joined into the action for the payment of costs, sought a review of the earlier decision. The judge held that the Deloitte fees were recoverable in principle and they were assessed over a 12 day period.

THE COURT HAS POWER TO RECONSIDER AN EARLIER FINDING DURING THE COURSE OF AN ASSESSMENT

It was common ground that the court had jurisdiction to reconsider an earlier determination during the course of an assessment.

The power to reconsider

  1. It is not in issue that the detailed assessment has not concluded. The final costs certificate has not been issued and the request was heard before the assessment of the costs of drafting the bill. Nor can it be in issue that Mr Vik’s intention to ask the court to reconsider these items was raised well in advance. In their letter to the court dated 17th August 2021, Mr Vik’s solicitors advised that:

“… the Paying Party considers that the court’s findings on his liability to pay the fees of Deloitte and Navigant may need to be revisited on the basis that any order which is based on them will involve the Paying Party being ordered to pay costs for which he is not liable.  This is something on which submissions will be made in due course.”

  1. In my experience it not infrequently happens on detailed assessment that, during the hearing, a party asks the court to reconsider a decision on an earlier item in the light of something that has become apparent subsequently.

THE DECISION: EARLIER DECISION STAYED UNCHANGED

The judge refused to vary the earlier decision.
32.            There is, in my judgment, simply no reason to alter the decisions that I made over 18 months ago. As Miss Manby put it, there has been no “Eureka” moment, or smoking gun. Everything that Mr Morris has relied on has come from either the document schedules or the Deloitte monthly summaries, all of which were available back in the winter of 2020, when we first looked at this. No analysis by Acumen of the work done by Deloitte on initial margin, suggested in the letter from Mr Vik’s solicitors to the court dated 17th August 2021 (in support of Mr Vik’s application to extend time for payment of the interim costs certificate) has been produced or relied on.
33.            That I made more significant reductions in respect of initial margin when assessing the work done by the Claimant’s solicitors as described in the documents schedules, does not lead inexorably to the conclusion that similar reductions need to be made in relation to the fees of Deloitte. There was, very obviously, more work done in relation to this by the solicitors.
34.            Accordingly I decline to alter the allowances that I made in relation to items 1707 to 1734.