WHEN COSTS INCURRED AT A CASE MANAGEMENT CONFERENCE ARE ORDERED AGAINST THE DEFENDANT: DON’T ALWAYS ASSUME IT WILL BE “COSTS IN THE CASE”

December 13, 2022 · by · in Applications, Case Management, Costs

It may be imprudent to assume that arguments that take place at the case management stage will always be subject to an order for costs in the case. In University of Manchester v John McAslan & Partners Ltd & Anor [2022] EWHC 3154 (TCC) Mr Roger Ter Haar KC (sitting as a High Court judge) ordered one of the defendants in the action to pay the claimant’s costs of a a specific issue that that defendant had raised.

 

THE CASE

The claimant brings an action in relation to building work done at the university.   At a previous hearing, a CCMC, the judge had refused an order that conditions be placed on the instruction of expert witnesses by the claimant.  In particular the judge rejected an argument that the university had been “expert shopping” and that the reports of other experts should be disclosed as a condition of reliance upon “new” experts.

THE COSTS OF THE ISSUE RAISED AT THE CCMC

The judge rejected the second defendant’s argument that the costs of the issue in question should be costs in the case.  The second defendant was ordered to pay the costs of determining the issue in relation to experts, which were to be subject to a detailed assessment.

THE JUDGMENT ON COSTS

    1. In respect of the matters arising in the Costs and Case Management Conference I handed down judgment on 2 November 2022. This judgment deals with costs issues, which have been dealt with on paper.
    1. As the hearing before me was a Costs and Case Management Conference, the default position in accordance with the practice of this Court is that the order for costs should be that the costs be in the case.
    1. Insofar as the costs of the First Defendant and Third Party are concerned, in my judgment the default position is the correct position, despite support by the First Defendant for the Second Defendant’s position in respect of the Claimant’s expert evidence to which I refer below. I regard the differences between the parties as to the Claimant’s expert evidence to be primarily a matter between the Claimant and the Second Defendant.
    1. As between those parties, the Claimant’s position is that the correct order should be that:
(1) The Second Defendant shall pay the Claimant’s costs of and incidental to the matters raised in its letter of 11 August 2022 as they relate to ‘expert shopping’;
(2) Such costs shall be subject to summary assessment by the Court;
(3) Such assessed sum shall be paid within 14 days of the assessment.
    1. The Second Defendant resists the Claimant’s submission and submits to the contrary that the ordinary order as to the costs of a Costs and Case Management Conference should be made.
    1. I disagree with the Second Defendant. Its position in respect of the Claimant’s expert evidence which I have dealt with at some length in the judgment which I handed down amounted to an allegation that the Claimant was engaged in an exercise of “expert shopping”. I firmly rejected that suggestion.
    1. I also held that the disclosure made by the Claimant’s solicitors in their letter of 13 September 2022 was sufficient and appropriate to satisfy the requirements set out in the authorities when a party wishes to change experts.
    1. In the event there was correspondence between the parties after that disclosure, a substantial amount of documentary evidence was placed before me, and I heard lengthy oral submissions on the matter.
    1. In my judgment this is a case where there should be a departure from what I have described as the default position insofar as costs which would not otherwise have been incurred in respect of the Costs and Case Management Conference were incurred after 13 September 2022 in dealing with the Second Defendant’s submission that conditions should be attached to the permission for the Claimant to adduce expert evidence.
    1. The assessment of those costs cannot be made at this stage: what is necessary is to determine the costs which would have been incurred in any event in preparing for and attending the Costs and Case Management Conference and the additional costs incurred after 13 September 2022 in dealing with the Second Defendant’s submission that conditions should be attached to the permission for the Claimant to adduce expert evidence.
  1. Accordingly I decline to order summary assessment or an order for payment of costs on account, but I do order that the Second Defendant should pay the Claimant’s costs incurred after 13 September 2022 in dealing with the Second Defendant’s submission that conditions should be attached to the permission for the Claimant to adduce expert evidence.