FN and AL (Claimant/Appellant) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hamblen |
| Judgment Date | 10 June 2015 |
| Neutral Citation | [2015] EWHC 3057 (QB) |
| Docket Number | Case No: QB/2015/0626, QB/2015/0627 |
| Court | Queen's Bench Division |
| Date | 10 June 2015 |
[2015] EWHC 3057 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Hamblen
Case No: QB/2015/0626, QB/2015/0627
Mr D O'Callaghan (instructed by Duncan Lewis) appeared on behalf of the Claimant
Mr T Kirk (instructed by Keoghs Nicholls Lindsell & Harris) appeared on behalf of the Defendant
Introduction
This is an appeal against the decision of Master O' Hare on 17 November 2014 whereby he refused an application to set aside an order for costs which he had made in favour of the respondent on her application for an unless order in relation to the commencement of detailed assessment proceedings.
Background
There are two underlying claims involving the appellant FN and the appellant AL. The defendant or respondent in both cases is the Secretary of State for the Home Department. The appellants succeeded before the Court of Appeal against the respondent who was ordered to pay costs. That costs order was made subsequent to judgment on 11 June 2012.
Pursuant to CPR 47.7, the time period for commencing detailed assessment is three months from the date of judgment. In this case that means the 11 September 2012. In the event no such detailed assessment was commenced and there appear to have been no discussions between the parties in relation to costs until December 2013 when the appellants' solicitors contacted the Treasury Solicitor seeking to open discussions in relation to costs matters.
In May 2014, a schedule of costs was drawn up and served in relation to the case of FN. In June 2014, a schedule of costs was drawn up and served in the case of AL. The respondent then referred costs matters to be dealt with by Keoghs LLP Solicitors ("Keoghs") who wrote to the appellants' solicitors requesting 14 days to review the matter and take instructions. At this stage Keoghs were instructed only in relation to the FN case. There then followed some negotiations between the two parties' solicitors in relation to the costs in the FN case, but no agreement was reached in relation to the appropriate costs sum.
On 4 August 2014, an offer was made by in relation to the case of FN which was left open for 21 days. On 5 August 2014, Keoghs wrote to the appellants' solicitors, Duncan Lewis, saying that they wrote in connection with the appellants' claim for costs and observing:
"The deadline for service of a formal bill of costs expired a significant amount of time ago. The matter cannot drag on indefinitely. If we do not receive a full review of costs within seven days, then we will file the relevant application at court without further notice."
The solicitor dealing with the matter at Keoghs was Mr Sean Garden and the solicitor dealing with the matter at Duncan Lewis was Mr James Hacker. Mr Hacker responded by email the following day, 6 August 2014, stating, amongst other things, as follows:
"It is your prerogative to make what application you consider fit. However, contrary to the assertion in your emails, there is no deadline to issue a bill of costs. If your client refuses to meet the costs set out in the schedules and also refuses to negotiate on a global basis, then the files will be sent to the costs drafter for proportionate common costs and bills of cost will be drawn up and served upon her. If you still do not intend to negotiate on a global basis please simply state as much and the files will be immediately forwarded. In the light of the fact that it may be that the rationale of the appellant's position was not clear we will delay a further 14 days from today to allow you to consider your position. In the absence of a satisfactory reply, the files will be sent for proportionate and costs drafting at that time."
This was responded to by an email from Mr Garden of Keoghs the same day stating as follows:
"The defendant refers to CPR 47.7 which states that detailed assessment proceedings must be commenced three months after the date of the judgment. The three-month period has clearly expired. The defendant refers to Mainwaring v Goldtech Investments Ltd (No.2) [1999] 1 WLR 745 CA and maintains a separate bill of costs will be required for each matter. The defendant requires a breakdown obfuscating how much of the offer you attribute to each respective claim."
That was the last written communication between the parties relating to these two cases prior to the issue of the application by the respondent on 22 September 2014. However, on 22 August 2014, Duncan Lewis sent to Mr Garden of Keoghs an email in another matter which they rely on in support of their appeal ("the 22 August email"). The admissibility of this document on the appeal, given that it was not before the Master, is in issue. I refer to it without prejudice to that issue of admissibility which I shall address in due course. The email was with reference to another case called Shamfari and it was in the following terms:
"Since your client will currently not accept my written assurances …counsel (see note) has requested a replacement copy instead. It is hard to believe that your client is concerned to settle this matter on an urgent basis. Due to your client's demands, the file cannot yet go to a costs drafter. Secondly, you should understand that once the replacement fee notice is received, the file will indeed be sent for costs drafting. Your timescale of seven days to draft is unrealistic. About six to eight weeks is the normal turnaround time. If your client is prepared to pay the premium fee for the express service by the costs drafter, do please inform me, and we will speed the process along."
In relation to these two cases no further communication was received from Duncan Lewis and, on 22 September 2014, the respondent issued her application which was for unless order that unless the claimant commenced formal detailed assessment proceedings within seven days, their costs would be assessed at nil. That application was supported by a witness statement from Mr Garden, which briefly set out the history of the matter. It observed that the relevant date of judgment was 11 June 2012, and that pursuant to CPR 47.7, the claimant had until 11 September 2012 to commence detailed assessment proceedings. He observed that:
"Negotiations ensued based on the schedule of costs. However, no agreement could be reached. Further negotiations took place. However, as the issues between the parties could not be narrowed, the defendants' representative requested by way of an email, dated 5 August 2014, that the claimant commence formal detailed assessment proceedings. The defendants' representative also put the claimant on notice and an application be lodged defending this. The deadline provided to the claimant by the defendants' representatives in an email dated 5 August 2014 has now passed. The defendant has been patient in this matter and has sought to engage with the claimant's solicitors on multiple occasions to no avail. The defendant's representative, therefore, respectfully requests the court to make an unless order as per the draft attached in accordance with the court's power under CPR 47.8(1) and (2) in view of the claimant's clear breach of CPR 47.7 and general dilatory conduct."
In the final paragraph, he sought an order for costs in the sum of £215.60.
The Master made an order pursuant to that application which had been issued on an ex parte basis and put before the court to be dealt with on the papers. He granted the unless order but gave a longer period for compliance, up to 4.00 pm on 31 October 2014. He awarded the respondent the costs sought of £215.60 and the order also stated at paragraph 4:
"This order has been made without a hearing. The party affected by this order may, within ten days after it is served on him, apply by letter to the court requesting the court to stay, set aside or vary it."
The appellants availed themselves of that liberty and applied to set aside the order. In the event, they complied with the requirement to commence the detailed assessment before the matter came on for hearing before the Master, and by the time of that hearing the only matter in issue related to the costs order which the Master had made.
The appellants' application was supported by a letter from Duncan Lewis on 23 October 2014. This letter stressed the fact that the respondent had a duty of candour because the had made the application on an ex parte basis and asserted that this duty had not been complied with and that the court had been misled.
The letter identified five main points which it was contended that the court should have been informed of and it sought an order that the costs order be set aside for the reasons there set out. That letter was responded to in a letter from Keoghs of the same date. That set out the chronology and referred to the emails of 5 and 6 August 2014 to which reference has already been made. It stated at paragraph 12:
"By 22 September 2014, the time period for commencing detailed assessment proceedings had expired by more than two years and the additional deadline provided by the respondent within the email of 5 August 2014 had expired by 31 days. In light of the ongoing delay and in light of the third appellant's unwillingness to deal with the separate costs independently, the respondent had no other option than to prepare an application to compel the third appellant to commence assessment proceedings. The respondent takes issue to the reference to a without prejudice communication to settled the...
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