Hallam Estates Ltd and Another (Claimants/Appellants) v Teresa Baker

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Jackson,Lord Justice Lewison,Lord Justice Christopher Clarke
Judgment Date19 May 2014
Neutral Citation[2014] EWCA Civ 661
Date19 May 2014
Docket NumberCase No: A2/2013/2176

[2014] EWCA Civ 661

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE,

QUEEN'S BENCH DIVISION

HIS HONOUR JUDGE JEREMY RICHARDSON QC

(SITTING AS A HIGH COURT JUDGE)

AGS1302700

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Jackson

Lord Justice Lewison

and

Lord Justice Christopher Clarke

Case No: A2/2013/2176

Between:
(1) Hallam Estates Ltd
(2) Michael Stainer
Claimants/Appellants
and
Teresa Baker
Defendant/Respondent

Mr Imran Benson (instructed by Direct Access) for the Claimants/Appellants

Mr Jonathan Lewis (instructed by Griffin Law) for the Defendant/Respondent

Hearing date: Monday 12th May 2014

Lord Justice Jackson
1

This judgment is in five parts, namely:

Part 1. Introduction

paragraphs 2 to 8

Part 2. The history of the proceedings

paragraphs 9 to 22

Part 3. Did the judge err in reversing the costs judge's decision?

paragraphs 23 to 34

Part 4. Did the judge err in directing that a default costs certificate be issued?

paragraphs 35 to 37

Part 5. Executive summary

paragraphs 38 to 40

2

This appeal arises out of proceedings for the detailed assessment of costs. The paying parties appeal against a decision of the High Court reversing a decision of the costs judge, whereby he declined to set aside his earlier order granting an extension of time for serving the points of dispute. The principal issues in this appeal are whether the costs judge was dealing with relief from sanctions and whether he exercised his case management discretion in a proper manner.

3

Hallam Estates Limited and Michael Stainer were claimants in the underlying litigation. They are the paying parties in the detailed assessment proceedings. They were the applicants for an extension of time before the costs judge. They were respondents in the application to set aside and they were respondents in the appeal to the High Court. They are appellants in this court. I shall refer to them as the claimants.

4

Ms Teresa Baker was defendant in the underlying litigation. She is receiving party in the detailed assessment proceedings. She was respondent in the application for extension of time, but applicant in the application to set aside. She was appellant in the appeal to the High Court, but is respondent in this court. I shall refer to her as the defendant.

5

All references in this judgment to "rules" are to the Civil Procedure Rules 1998 as amended. Rule 47.9 provides:

" Points of dispute and consequence of not serving

(1) The paying party and any other party to the detailed assessment proceedings may dispute any item in the bill of costs by serving points of dispute on –

(a) the receiving party; and

(b) every other party to the detailed assessment proceedings.

(2) The period for serving points of dispute is 21 days after the date of service of the notice of commencement.

(3) If a party serves points of dispute after the period set out in paragraph (2), that party may not be heard further in the detailed assessment proceedings unless the court gives permission.

(Practice Direction 47 sets out requirements about the form of points of dispute.)

(4) The receiving party may file a request for a default costs certificate if –

(a) the period set out in paragraph (2) for serving points of dispute has expired; and

(b) the receiving party has not been served with any points of dispute.

(5) If any party (including the paying party) serves points of dispute before the issue of a default costs certificate the court may not issue the default costs certificate."

6

Rule 47.11 provides:

" Default costs certificate

(1) Where the receiving party is permitted by rule 47.9 to obtain a default costs certificate, that party does so by filing a request in the relevant practice form.

(Practice Direction 47 deals with the procedure by which the receiving party may obtain a default costs certificate.)

(2) A default costs certificate will include an order to pay the costs to which it relates.

(3) Where a receiving party obtains a default costs certificate, the costs payable to that party for the commencement of detailed assessment proceedings will be the sum set out in Practice Direction 47."

7

I shall refer to the Senior Courts Costs Office as "SCCO".

8

After these introductory remarks, I must now turn to the history of the proceedings.

9

The claimants brought proceedings for defamation which Tugendhat J dismissed on 15 th May 2012. Tugendhat J ordered the claimants to pay the defendant's costs, subject to detailed assessment if not agreed. He also ordered them to pay £15,000 on account of costs by 1 st June 2012. The claimants paid part of that sum in time, but did not pay the full sum until early October 2012.

10

The defendant delayed in preparing her bill of costs. Under rule 47.7 she should have done this by 15 th August 2012. In fact, the defendant did not serve her bill of costs and notice of commencement of detailed assessment proceedings until 18 th April 2013. The bill was 66 pages long and totalled £86,463.49. That was significantly more than the figure previously indicated (£72,610.28).

11

Under the rules the claimants were required to serve their points of dispute by 14 th May 2013. By letter dated 8 th May the claimants' solicitors asked for a 21 day extension of time. They gave sensible reasons for this request and I would have expected the defendant to agree. Given her own delays, she could hardly complain about that modest extension. Pursuant to rule 3.8 (3) the court's approval would have been required for any such agreement, but that would have been a formality.

12

By way of digression I comment that rule 3.8 will shortly be amended so that in the ordinary way parties can, without reference to the court, agree extensions of time up to 28 days, provided that this does not put at risk any hearing date. A variety of circumstances may arise in which one or other party (however diligent) may require a modest extension of time. Under rule 1.3 the parties have a duty to help the court in furthering the overriding objective. The overriding objective includes allotting an appropriate share of the court's resources to an individual case. Therefore legal representatives are not in breach of any duty to their client, when they agree to a reasonable extension of time which neither imperils future hearing dates nor otherwise disrupts the conduct of the litigation. On the contrary, by avoiding the need for a contested application they are furthering the overriding objective and also saving costs for the benefit of their own client.

13

Unfortunately in this case the defendant's solicitors did not agree to any extension of time, save upon onerous terms.

14

On 14 th May 2013 the claimants (at this stage acting in person) filed in the SCCO an application for an extension of time until 18 th June for service of the points of dispute. They paid the requisite fee at 2.43p.m. They sent a copy of the application notice by email to the defendant's solicitors later that day and also put a hard copy in the post.

15

On 15 th May 2013 an official in the SCCO stamped the claimants' application notice, thereby formally issuing it. On the same day the defendant's solicitors sent a letter to the SCCO requesting a default costs certificate. That request was ineffective because the two accompanying cheques (each for £60 in respect of court fees) were unsigned.

16

Although the claimants' application notice asked for a hearing the costs judge, Master Gordon-Saker, decided to deal with the matter ex parte on the papers. On 16 th May he made an order granting the extension sought and giving both parties liberty to apply to set aside or vary the order. That was an extremely sensible and cost-efficient course to take.

17

On 24 th May 2013 the defendant applied to the costs judge to set aside his order and issue a default costs certificate. Mr Jonathan Sherlock, a partner in the defendant's solicitors, Girlings, filed a supporting witness statement. Mr Sherlock contended that the order of 16 th May impermissibly granted the claimants relief from a sanction. In paragraph 2 of his statement he asked the costs judge to deal with the matter on the papers. Master Gordon-Saker duly did so. On 31 st May he dismissed the defendant's application, stating the following reasons:

"The Second Claimant's application was for an extension of time, not for relief from sanctions; there being no sanction from which to seek relief. An application for extension of time may be made retrospectively: see CPR 3.1(2)(a). Given the significant delay by the Defendant in commencing detailed assessment proceedings the extension of time sought by the Second Claimant was not unreasonable. In making the order dated 16 th May 2013 the court had assumed that the Defendant had refused to agree an extension of time; otherwise the application would not have been required. The court having already ordered a payment on account of costs, it would not be appropriate to make a further order. The Defendant may apply for an interim costs certificate once a request has been made for a detailed assessment hearing."

18

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