Alan Bates and Others v Post Office Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fraser |
| Judgment Date | 07 June 2019 |
| Neutral Citation | [2019] EWHC 1373 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ16X01238, HQ17X02637 and HQ17X04248 |
| Date | 07 June 2019 |
[2019] EWHC 1373 (QB)
THE POST OFFICE GROUP LITIGATION
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Rolls Building
Fetter Lane
London, EC4A 1NL
THE HONOURABLE Mr Justice Fraser
Case No: HQ16X01238, HQ17X02637 and HQ17X04248
Patrick Green QC, Henry Warwick, Ognjen Miletic and Reanne MacKenzie (instructed by Freeths LLP) for the Claimants
David Cavender QC, Jamie Carpenter and Gideon Cohen (instructed by Womble Bond Dickinson LLP) for the Defendant
Judgment (No.5) “Common Issues Costs”
Hearing date: 23 May 2019
Introduction
These proceedings are being conducted pursuant to a Group Litigation Order (“GLO”) made on 22 March 2017 by Senior Master Fontaine. This judgment is the latest in the series, and is consequential upon the first substantive judgment dealing with what the parties referred to as the “Common Issues”. That is called Judgment No.3 “Common Issues” and is at [2019] EWHC 606 (QB). The other judgments are at [2017] EWHC 2844 (QB) (Judgment No.1, dealing with the listing of trials and hearings in the Group Litigation); [2018] EWHC 2698 (QB) (which is Judgment No.2, and deals with an application by the Post Office to strike out the Lead Claimants' evidence for the Common issues trial); and [2019] EWCH 871 (QB) (Judgment No.4, dismissing a recusal application by the Post Office seeking to remove me as Managing Judge and to abandon the Horizon Issues trial then underway). Judgment No.4 was handed down on 9 April 2019. The Post Office sought to appeal my decision in Judgment No.4. I refused the Post Office permission to appeal to the Court of Appeal, and in an Order of 9 May 2019 the Post Office's application for permission to appeal was dismissed by Coulson LJ. Detailed reasons were provided in respect of that refusal.
The issuing by the Post Office of the recusal application on 21 March 2019 caused significant disruption to the Horizon Issues trial which had started on 11 March 2019, and to the Group Litigation as a whole. Matters that were consequential upon the handing down of Judgment No.3 on the Common Issues were, originally, programmed to be dealt with after the Horizon Issues trial had ended. The Horizon Issues trial has not yet resumed and will now only do so on 4 June 2019, when the expert evidence will be called, the final trial date now being 2 July 2019. Upon dismissing the recusal application, I listed this hearing to take place on 23 May 2019 to deal with costs and other matters consequential upon Judgment No.3 that had resolved the Common Issues.
At that hearing, the Post Office made an application for permission to appeal Judgment No.3 in respect of numerous grounds of appeal both of law, what was said to be procedural irregularity, and fact. I refused that application, gave brief reasons orally at the time, and these are amplified in written reasons for refusal. These are necessary in order to accompany Form N460 for the assistance of the Court of Appeal if, or when, the Post Office lodges its appeal and application for permission to appeal.
I also heard a number of different applications for costs. I gave the results of those applications to the parties at the time on 23 May 2019, together with brief oral reasons, but explained that I would provide more detailed reasons in writing shortly. These are those reasons.
The costs of the recusal application
These were sought by the Claimants on a summary assessment, and on the indemnity basis (of which further below). They were agreed by the Post Office shortly before the hearing and the Post Office agreed to pay the Claimants the sum of £300,000 in respect of these. Further detail is contained in the terms of a consent order. The Post Office's own costs of the recusal application in their schedule of costs submitted for the hearing on 3 April 2019 were in excess of £212,000 (which included £34,165 for its solicitors, and £174,815 for its counsel). This means the total costs expended by both parties on that application were in excess of £500,000. The Post Office did not seek any of their own costs, and the recusal application is now finally determined including all consequential matters.
Whether the costs of the Common Issues should be reserved
The Common Issues trial, which resolved the 23 different Common Issues between the parties relating to the contractual and agency relationship of SPMs under the different contracts used by the Post Office between 2000 and 2017 (namely the SPMC, Modified SPMC and NTC) was tried between 7 November and 6 December 2018. They are self-contained matters of both fact and/or law and affect all the different claimants in the Group Litigation, although not all of the Claimants contracted on all of the three different contracts.
The Post Office's primary submission on costs is that an order should be made reserving those costs. The Claimants, on the other hand, seek an order in their favour at this stage in the litigation, with certain consequential matters such as the basis of the assessment, and a payment on account of detailed assessment.
The Post Office submits that I ought to reserve the costs, and also that to do otherwise would evidence or suggest that I had pre-determined the ultimate outcome of the litigation in the future. This latter submission was not to be found in its written skeleton argument for the hearing on 23 May 2019. It was made for the first time in oral submissions. The Post Office therefore submitted, in express terms, that to make an order in respect of the costs of the Common Issues trial now (rather than at the very end of the litigation, some years hence) would demonstrate a pre-determination as to the overall outcome of the litigation. The exact phraseology used by counsel in advancing this submission is worth setting out:
“the court can't be sure that things will happen in the future that will affect and alter its view about incidence of costs. It simply cannot do so. If it does so now, in my submission as a matter of principle, that would evidence a predetermination or would go towards suggesting the court has reached a view about matters as to how things are going to pan out in the future.”
I am troubled by this submission, since it seems to me to echo the approach adopted when the Post Office made its recusal application. This is notwithstanding what was explained in considerable detail in Judgment No.4, and also in detail by the Court of Appeal when it refused to grant permission to appeal in relation to that judgment. This is specifically addressed in the detailed explanation given by Coulson LJ in his 17 pages of the Reasons for Refusal of Application for Permission to Appeal against Judgment No. 4 (“the Court of Appeal reasons”) which explained why he was refusing permission to appeal Judgment No.4.
I am concerned also that inherent in this submission by the Post Office is a veiled or implied threat which mirrors the approach adopted by the Post Office on the recusal application, namely that in adopting a course of action in the face of opposition by the Post Office (here, making a costs order now, as opposed to reserving costs orders for later) runs the risk that the Post Office will say that the overall outcome of the litigation (or other future issues) has already been decided. That, categorically, is not the case. I explained at [30] of Judgment No.3 that the Post Office was attempting to put the court in terrorem, and Coulson LJ made essentially the same point at [48] of the Court of Appeal reasons, although in relation to a different submission by the Post Office on a different topic. It is somewhat surprising that, having only very recently been provided by the Court of Appeal with these detailed reasons, the Post Office should now (again) be suggesting pre-judgment if its preferred way in the litigation is not adopted.
More substantively, I cannot accept that, as a matter of principle, making a costs order now evidences or suggests that the court has formed a pre-determined view about the outcome of the Group Litigation. It is entirely conventional for costs orders to be made at an interlocutory stage or, where litigation is dealt with in stages, for the costs of those stages to be addressed as the litigation proceeds, rather than only at the very end of the litigation and all at once. Sometimes it will not be appropriate to makes costs orders before the end of the litigation; other times it will be. It will depend on the circumstances of each given case. If a costs order is made, rather than costs being reserved, that does not evidence pre-judgment; it will, instead, merely reflect the fact that the court considers it appropriate that a costs order is made at that point in time. I consider it unarguable that deciding a costs application now, either in this Group Litigation or any litigation, could sensibly be interpreted as pre-judging the outcome of the litigation as a whole.
In the present case, I make it clear (once again) that I have no such pre-determined view on any matters yet to be fully tried. I have already, in Judgment No.4, at [268] and [269], expressly stated that I considered submissions by the Post Office's solicitors that it was “too soon to tell whether any Claimant will be successful” (as well as that the Claimants had not been wholly successful in Judgment No.3) accurately reflected the outcome of Judgment No.3. That remains the case. I do nonetheless consider that it is appropriate that I consider whether to make a costs order now, without any concern that to do otherwise than to reserve the costs, will give the appearance or evidence of prejudgment which the Post Office (yet again) suggests.
The Post Office's other submissions for the most part concentrated on an analogy between common issues in group...
To continue reading
Request your trial
-
Alan Bates and Others v Post Office Ltd
...Permission to appeal was refused by the single Lord Justice on 9 May 2019. There is also Judgment (No.5) “Common Issues Costs” at [2019] EWHC 1373 (QB) which made various orders in respect of the costs of the Common Issues trial, a hearing in respect of that having taken place on 23 May 6 ......
-
Kamlesh Patel v Isabelle Michelle Paule Awan
...reasons to take a more circumspect approach to incurred costs see for example Bates v the Post Office Ltd (No5: Common Issues Costs) [2019] EWHC 1373 (QB) which resulted in a lower percentage being applied to incurred costs than to the future budgeted 75 Each case will ultimately turn on i......
-
Litigation
...and Company of the Bank of Ireland v Watts Group plc [2017] EWHC 2472 (TCC) at [6], per Coulson J; Bates v Post Oice Ltd (No.5) [2019] EWHC 1373 (QB) at [47], per Fraser J. 1139 South West Water Services Ltd v International Computers Ltd [1999] BLR 420 at 423, per HHJ Toulmin CMG QC; Excels......
-
Table of cases
...[2019] EWHC 606 (QB) I.3.39, I.3.147, I.3.169, I.3.209, II.13.206, II.13.208, III.26.95, III.26.240 Bates v Post Oice Ltd (No.5) [2019] EWHC 1373 (QB) III.26.272, III.26.282, III.26.287 Batey v Jewson Ltd [2008] EWCA Civ 18 III.20.61, III.20.67 Bath & North-East Somerset District Council v ......