COST BITES 87: ISSUES RELATING TO EXCEEDING THE BUDGET LEFT TO THE COSTS JUDGE

May 30, 2023 · by · in Applications, Assessment of Costs, Costs, Costs budgeting

In  BES Commercial Electricity Ltd & Ors v Cheshire West And Chester Council [2022] EWHC 3333 (KB) Mr Justice Freedman declined an invitation to give any indication in relation to the defendant’s application to depart from its budget.  The matter was better left to the costs judge, any indication from the trial judge could be misconstrued and the issue best left alone.

“The Claimants say that this is a matter which is reserved to the costs judge and that the Court does not have jurisdiction to deal with it. In the event, it is not necessary for the Court to decide whether it has jurisdiction because I am satisfied that it is more expedient that the Costs Judge should deal with the points.”

 

THE CASE

The judge, in an earlier judgment, had dismissed the claimant’s case alleging misfeasance in public office against the defendant.  The defendant applied for costs and also for an order that it be given permission to depart (upwards) from its costs budget.

THE JUDGMENT ON COSTS BUDGETING

The judge declined to comment on the defendant’s application. It was held that the matters were better dealt with the costs judge.

    1. As part of the consequentials to the hand-down of the judgment, two issues arose for consideration, namely the Defendant’s application to depart from the Costs Budget and the Claimant’s application for permission to appeal. The determination of the Court in respect of these matters is as follows.
Costs Budget
    1. The Defendant seeks an order that the Defendant had good reason to depart from its Precedent T in respect of the PTR, Trial Preparation and Trial phases due to the extended duration of the PTR and Trial and significant developments in the litigation subsequent to the budgeting process. The costs of such phases to be assessed by a costs judge if not agreed.
    1. The Defendant filed a Precedent T on 16 November 2021 and applied to increase its costs budget. The matter was raised in open court on 17 November 2021 but was not determined. The Precedent T set out the amount of the increase being sought and the grounds in support of that increase.
    1. The Claimants say that this is a matter which is reserved to the costs judge and that the Court does not have jurisdiction to deal with it. In the event, it is not necessary for the Court to decide whether it has jurisdiction because I am satisfied that it is more expedient that the Costs Judge should deal with the points. That is for the reasons which follow.
    1. In respect of most of the matters, the Costs Judge will have more information than this Court to make the assessment. This applies especially to the following:

(i) The costs projected for the PTR and the reasons why this extended. This Court knows about the application which was added to the PTR of the application to strike out witness statements, but the detail of the other applications and how they became extended or more expensive are matters where the Costs Judge will have more information than is available to this Court;

(ii) The trial preparation which became dogged by issues regarding trial bundles and the like are again not known to this Court. I was able to see that there was a vast number of bundles, and it is not difficult to imagine the difficulties of the kind of which I was told. However, the Costs Judge will be able to see the nature and extent of the problem and its consequences and will thereby have a deeper understanding.

(iii) As regards the trial itself, I do have some greater degree of knowledge than about other matters. However, my knowledge is not greater than that which will be available to a fully appraised Costs Judge. The Costs Judge will see the documents in the context of an examination about costs, whereas I was island hopping from file to file, able to see the magnitude, but with little appreciation of how the documents grew to a degree which has prompted the application to depart from the costs budget. The Costs Judge will look at the documents with a degree of experience of when such growth of the documents is a usual incident of a case leading to a long High Court trial, and when the volume of documentation and the length and complexity of the case is such that there is a good reason to depart from the osts budget.

    1. In the alternative, I was asked to provide a narrative of matters which were within my knowledge where I could give indications to the Costs Judge short of directing the Costs Judge. The trial grew very considerably in size due at least in part to (a) the length of the evidence, (b) the applications made at trial and contested for (i) reporting restrictions, and (ii) the use of materials obtained in the execution of the search warrants (both applications being of great importance to both parties), and (iii) the very extensive written submissions of unusual length with citation of over a hundred authorities. There was a gap in time between the conclusion of the evidence and the oral submissions for the preparation of closing submissions. I am reminded that the gap in time was of 6 days, and an analysis of the respective written submissions will indicate that a gap of some time at least, perhaps the whole of the 6 days, was required.
    1. I do not embark upon a narrative. I do not wish to do that because I wish the details and the exercise as a whole to be left to the Costs Judge. As I said in argument, a narrative might be counter-productive because in emphasising some points, it might be thought, however I were to couch it, that these were the only, or the main, points. In my judgment, the parties are well able to give to the Costs Judge a perspective which will be fuller and more valuable to a Costs Judge than my observations. A particularly helpful feature for the parties is the ability to refer to the daily transcripts from which submissions as to the length of the hearing and the ways in which the case is alleged to have become more complex can be developed and cross-referenced.
  1. Any narrative by reference to the points set out in paragraph 6 above can be developed in much greater detail by the parties for the benefit of the Costs Judge. The above is anodyne rather than some unique perspective or set of views which a trial judge might in a particular case be able to give. I wish to add that in not providing a narrative, in no way am I giving a silent steer to the effect that there is no good reason to depart from the Costs Judge. From what I have seen, this will be a very detailed and perhaps hotly contested application. I shall say no more and leave the rest to be developed by the respective parties before the Costs Judge.
Tags: , , ,