NO ORDER FOR COSTS WHEN AN APPLICATION HAD BEEN ADJOURNED DUE TO AN INAPPROPRIATE TIME ESTIMATE

In Harrington Scott Ltd v Coupe Bradbury Solicitors Ltd [2023] EWHC 294 (Ch) HHJ Hodge KC, sitting as a High Court Judge, decided that the costs of an application that was adjourned due to an inappropriate time estimate should not be paid by the losing party.  Rather there should be no order for costs. The decision shows the importance of realistic time estimates.  The applicant cannot assume that, because there is no objection from the respondent, the time estimate is accurate.

“I am satisfied that it would be unjust for the costs thrown away by the unfortunate adjournment of the hearing in December 2021 to fall to be borne by either of the parties to this litigation. Therefore, I will direct that the costs of the application should not include the costs thrown away by the adjournment of the hearing before the Deputy Master in December 2021”

THE CASE

The defendant had been successful in striking out an action against it brought by the claimant.  The defendant’s initial application was listed before a Master (heard by a Deputy Master). The Master adjourned the application that was brought before them, holding that the time estimate of 12 hours and thirty minutes was insufficient.  The Master’s order recorded that the matter was suitable for hearing before a High Court judge  and required 4 – 5 days with one day of reading time and one day to prepare a judgment. The costs of the hearing before the Master were reserved. The matter was then listed before a High Court judge and the action was struck out.

THE ISSUE IN RELATION TO COSTS OF THE ADJOURNED HEARING

The court considered who should pay the costs of the adjourned hearing.  The defendant argued that the claimant had not objected to the time estimate and that the claimant should pay the costs.  The court found that the appropriate decision was no order for costs in relation to the adjourned hearing.

THE JUDGMENT ON COSTS OF THE ADJOURNED HEARING

The judge considered the arguments in relation to liability for the costs of the hearing that was adjourned.

    1. That, however, is subject to a further point. The claimant submits that the costs thrown away by the adjournment of the hearing in December 2021 before the Deputy Master should fall to be borne by each of the parties. Mr Bowles submits that each party should bear their own costs of that hearing because it was lost as a result of:
(1) The defendant’s failure properly to estimate the length of time it required for its application;
(2) The defendant’s failure correctly to identify the level of judiciary required, which caused the matter to be adjourned; and
(3) What he says was the defendant’s then instructed leading counsel’s curious request for more time for personal reasons into which I need not go.
    1. That last factor is disputed by Ms Morrish at paragraphs 7 to 8, 11, and 12 of her witness statement. Mr Bowles acknowledges that he is in no position to put forward evidence to contradict Ms Morrish. He does not propose to put in evidence to confirm his recollection of events; and he is in no position to put in evidence from the solicitors who were then instructing him (Collyer Bristow) because they no longer act in this litigation. So I am in no position to determine whether the third of the matters on which Mr Bowles relies has any validity.
    1. Ms Page points to the fact that that the claimant’s then solicitors (Collyer Bristow) had not disputed the defendant’s suggested time estimate for the hearing. She also makes the point that the application properly fell within the jurisdiction of a Master (or Deputy Master). It had never been suggested by the claimant that the matter should be determined by a High Court Judge; and the Deputy Master’s suggestion that the matter should be listed before a High Court Judge involved no criticism of the defendant for having listed the matter, quite properly, before a Master; and this was something that occurred to the Deputy Master as an adjunct, and as subordinate, to his concerns that the time allotted for the hearing was inadequate.
    1. I accept the force of all of those points; but, nevertheless, it does seem to me that there is force in Mr Bowles’s point that both parties should have given consideration to the adequacy of the time estimate and sought an extension to it in advance of the hearing before the Deputy Master; and that the defendant should properly have considered seeking to confine the scope of the application to matters which could have been determined within the time estimate. In particular, those matters which I have already identified when making the one-third reduction in the costs of the application could effectively have been abandoned, albeit (if appropriate) only temporarily, so as to have enabled the Deputy Master to focus on the real issues which I have now determined in favour of the defendant, and which mean that the claim does not need to proceed to trial. That result has been achieved without any judicial determination of the true identity of the parties to two of the three contracts, or whether there was any breach of duty in failing to advise as to the need for, and the mechanism of, any assignment of the claims under the two contracts; without any consideration of whether the ERR contract should have been treated as terminated; and without any determination of the merits of the claims, as pleaded, for interest.
  1. I am satisfied that it would be unjust for the costs thrown away by the unfortunate adjournment of the hearing in December 2021 to fall to be borne by either of the parties to this litigation. Therefore, I will direct that the costs of the application should not include the costs thrown away by the adjournment of the hearing before the Deputy Master in December 2021. I am not going to determine what those costs are now. That is a matter that will fall to be considered on the detailed assessment of costs; but for the purposes of determining an interim payment on account of costs, I propose to treat the costs as being the figure of £67,000-odd which appears in the document “Further information on defendant’s costs” at pages 10 to 11 of exhibit KM4.