Axnoller Events Ltd v Nihal Mohammed Kamal Brake
| Jurisdiction | England & Wales |
| Judge | Paul Matthews |
| Judgment Date | 23 August 2021 |
| Neutral Citation | [2021] EWHC 2362 (Ch) |
| Docket Number | Case Nos: E00YE350, F00YE085 |
| Court | Chancery Division |
[2021] EWHC 2362 (Ch)
HHJ Paul Matthews
(sitting as a Judge of the High Court)
Case Nos: E00YE350, F00YE085
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BRISTOL
PROPERTY TRUSTS AND PROBATE LIST (ChD)
Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR
Andrew Sutcliffe QC and William Day (instructed by Stewarts Law LLP) appeared on behalf of Axnoller Events Ltd and The Chedington Court Estate Ltd
Mrs Nihal Brake appeared on her own behalf and that of Mr Andrew Brake and Mr Tom D'Arcy
Summary costs assessment, on written submission only
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
On 19 August 2021 I decided that the Brakes should pay 50% of the costs of the Guy Parties of the application notice of 26 June 2021, to be summarily assessed: see [2021] EWHC 2343 (Ch). This will be on the standard rather than indemnity basis: see CPR rule 44.3(4). Summary assessment is dealt in the procedural rules with at CPR r 44.6(1)(a), and PD 44 para 9.
In carrying out an assessment, the court must not allow costs which have been unreasonably incurred or are unreasonable in amount ( CPR rule 44.3(1)), and must only allow costs which are proportionate to the matters in issue, the benefit of any doubt being given to the paying party ( CPR rule 44.3(2)). I have now received and considered written submissions on summary assessment, and my decision is as follows.
Submissions
The Brakes
The Brakes challenge the charging rates for the solicitors, referring to the Senior Courts Costs Office guideline hourly rates for 2010. They challenge also the number of hours for which the solicitors have charged, and have criticised the method of presentation of costs of dealing with documents. They also complain that the employment of both a silk and a junior barrister was disproportionate, and they compare the total sum claimed of £68,729 unfavourably with the agreed budget for the trial of the Possession Proceedings, at £61,000. Finally, they ask the court to take into account the parties' relative financial positions and the Brakes' health issues..
The Guy Parties
The Guy Parties refer me to the new 2021 guideline hourly rates recently approved by the Master of the Rolls, due to come into force on 1 October 2021. They say that the present is both legally and factually complex litigation, justifying the instruction of London solicitors. They refer me to the decision of the Court of Appeal in Wraith v Sheffield Forgemasters Ltd [1997] 1 WLR 132. They also say that this was a very document heavy application. In addition, they say they were justified in instructing both leading and junior counsel. They criticise the Brakes' comparison with the budget for the three-day trial of the Possession Claim as irrelevant.
Discussion
General
I accept that this litigation as a whole between the parties is peculiarly wide ranging, factually complex and, at least in part, legally difficult. I accept that this particular application was a document heavy application, in large part because of the adduction of over a thousand pages of evidence by the Brakes. I also accept that one of the applications involved a wholly new area of law, although the other was a fairly standard application of established principles. But otherwise I do not consider that there was anything especially difficult about these applications.
London solicitors
The Guy Parties have instructed London solicitors, who are inevitably more expensive than provincial solicitors. But Wraith v Sheffield Forgemasters Ltd shows that that by itself does not make their retainer unreasonable when it comes to assessing the costs as between the parties. In that case Mr Truscott had instructed a small firm of London solicitors (ATC) to act for him in a county court case after he became dissatisfied with his previous solicitors (MFC). The judge in the county court said it was unreasonable for him to do so because their charging rates were higher than those of local solicitors. The Court of Appeal allowed an appeal by Mr Truscott.
Kennedy LJ (with whom Waite and Auld LJJ agreed) said (at 141):
“The following are matters which, as it seems to me, the judge should have regarded as relevant when considering the reasonableness of Mr. Truscott's decision to instruct A. T.C. (1) The importance of the matter to him. It was obviously of great importance. It threatened his home. (2) The legal and factual...
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Chedington Events Ltd v Nihal Mohamed Brake
...of the Court of Appeal in Wraith v Forgemasters Ltd [1988] 1 WLR 132. This case was referred to me in Axnoller Events Ltd v Brake [2021] EWHC 2362 (Ch), where I said this: “6. The Guy Parties have instructed London solicitors, who are inevitably more expensive than provincial solicitors. B......
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...do not consider them further. Conclusion on assessment 26 As I said in my judgment of 23 August 2021, in Axnoller Events Ltd v Brake [2021] EWHC 2362 (Ch) (another part of this multi-headed litigation), “15. Summary assessment of costs is not expected to be a line-by-line billing exercise,......