Dr. James Charles Dixon and Another v Radley House Partnership and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stuart-Smith |
| Judgment Date | 25 November 2016 |
| Neutral Citation | [2016] EWHC 3485 (QB) |
| Docket Number | Claim No: HT-2015-000407 |
| Court | Queen's Bench Division |
| Date | 25 November 2016 |
[2016] EWHC 3485 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Stuart-Smith
Claim No: HT-2015-000407
Mr T Owen (instructed by BLP Solicitors Limited) for the Claimants
Miss K. Lee (instructed by DWF LLP) appeared on behalf of the First Defendant
Mr. D. Goodkin (instructed by Beale & Co Solicitors LLP) appeared on behalf of the Second and Third Defendants
Judgment Approved
This afternoon's issue arises out of the application to amend the defences made by both parties and the judgment which I gave on 17 October refusing permission to amend: [2016] EWHC 2511 (TCC).
In the light of that judgment, the claimants apply for the costs of the application on an indemnity basis, and for those costs to be subject to a detailed assessment with an interim payment being made.
There is no real dispute about the relevant principles. They are stated in many places in similar terms. For today's purposes, it is sufficient to refer to the statement of principle by Coulson J in the case of Van Oord v. All Seas Ltd. [2015] EWHC 3385 (TCC) at [27] ff, and his citation from his own decision in Elvanite Full Circle Ltd v. AMEC Earth & Environmental (UK) Ltd. [2013] 4 Costs LR 612, at [16]. In particular at sub-paras.(c) and (d) Coulson J said,
"(c) The pursuit of a weak claim will not usually, on its own, justify an order for indemnity costs, provided that the claim was at least arguable. But the pursuit of a hopeless claim (or a claim which the party pursuing it should have realised was hopeless) may well lead to such an order…"
At (d) he said,
"(d) If a claimant casts its claim disproportionately wide, and requires the defendant to meet such a claim, there was no injustice in denying the claimant the benefit of an assessment on a proportionate basis given that, in such circumstances, the claimant had forfeited its rights to the benefit of the doubt on reasonableness …"
Similarly territory is traversed in the notes to the 2016 White Book, at p.1503. The Editors say,
"The making of a costs order on the indemnity basis would be appropriate in circumstances where the facts of the case and/or the conduct of the parties was such as to take the situation away from the norm"
citing the well-known decisions of the Court of Appeal in Excelsior Commercial and Industrial Holdings Ltd. v. Salisbury Hammer Aspden and Johnson [2002] EWCA Civ 879. The Editors continue:
"The abandonment of issues was not something which the courts should discourage where parties could be adequately compensated for work done in anticipated preparation for defending or advancing issues by a standard costs order: Catalyst Investment Group v Lewishon [2009] EWHC 3501 (Ch), Barling J. The judgment summarises earlier guidance in relation to when it is appropriate to grant costs to a successful party on the indemnity basis. Where the court is considering whether a losing party's conduct is such as to justify an order for costs on the indemnity basis, the minimum nature of the conduct required is, except in very rare cases, that there has been a significant level of unreasonableness or otherwise inappropriate conduct in its wider sense in relation to that party's prelitigation dealings with the winning party, or in relation to the commencement or conduct of the litigation itself."
I agree with the submission of Mr. Goodkin that the court should focus on the parties' conduct rather than simply the merits of the losing parties' position. To that effect, the note at p.1504 of the White Book says,
"When considering an application for the award of costs on the indemnity basis the court is concerned principally with the losing party's conduct of the case rather than the substantive merits of the position. The Guide to the Summary Assessment of Costs helps to clarify the distinction for the purposes of CPR Pt 44 between proportionality and reasonableness. Proportionality concerns the relationship of the costs claimed for such things as the amount of money at stake in the proceedings, the importance of the case, the complexity of the issues and the means of the parties. Whether the costs, proportionate or not, were reasonably incurred is therefore a different question. Although the two may overlap, the object of an indemnity costs order is to take proportionality out of the picture and to place on the paying party the burden of persuasion as to reasonableness: Simms v Law Society [2005] EWCA Civ 849; (2005) 155 N.L.J. 1124. The fact that a substantial part of a claimant's case had failed at the stage of summary judgment did not warrant an award of indemnity costs. The giving of summary judgment against the party, who had a hopeless case, was itself the norm. The requirement of proportionality was a useful brake on the escalation of costs and should not be lightly removed from any assessment of costs. The claimant was ordered to pay 90 per cent of the defendant's costs on the standard basis: Easy Air Ltd v Opal Telecom Ltd [2009] EWHC 779 (Ch), Lewison J."
Taking those two points in turn, it is clear that the degree of badness of a point may go into the scales when considering whether indemnity costs should be awarded even though the mere fact that a point has been rejected or would have been rejected on an application for summary judgment is not of itself in the normal case reason for awarding indemnity costs. What one is...
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BXB v Watch Tower and Bible Tract Society of Pennsylvannia
...costs is appropriate only where the conduct of the paying party is ‘unreasonable to a high degree’: Dixon v Radley House Partnership [2016] EWHC 3485 (QB). In this case there was nothing unreasonable about the Defendants' conduct. The Claimant's case was very different from CXC's and DXD's......
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BXB v Watch Tower and Bible Tract Society of Pennsylvannia
...costs is appropriate only where the conduct of the paying party is ‘unreasonable to a high degree’: Dixon v Radley House Partnership [2016] EWHC 3485 (QB). In this case there was nothing unreasonable about the Defendants' conduct. The Claimant's case was very different from CXC's and DXD's......
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Litigation
...& Marshall v McAlpine (1995) 44 Con LR 30 (CA); Gotch v Enelco Ltd [2015] EWHC 1802 (TCC ) ; Dixon v Radley House Partnership [2016] EWHC 3485 (QB) at [9], per Stuart-Smith J; Car Giant Ltd v London Borough of Hammersmith [2017] EWHC 464 (TCC) at [26], per DHCJ Furst QC. 1141 Amoco UK Expor......
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Table of cases
...130 ER 375 III.20.50 Dixon v Radley House Partnership [2016] EWHC 2511 (TCC) III.26.38, III.26.74 Dixon v Radley House Partnership [2016] EWHC 3485 (QB) III.26.272 clxxxvi TaBLE OF CaSES Dixon v South australian railways Commissioner [1923] SaSr 1 III.26.319 Dixon v South australian railway......