Harrington Scott Ltd v Coupe Bradbury Solicitors Ltd
| Jurisdiction | England & Wales |
| Judge | Hodge |
| Judgment Date | 12 January 2023 |
| Neutral Citation | [2023] EWHC 294 (Ch) |
| Docket Number | No. BL-2019-002077 |
| Court | Chancery Division |
[2023] EWHC 294 (Ch)
HIS HONOUR JUDGE Hodge KC
Sitting as a Judge of the High Court
No. BL-2019-002077
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Rolls Building
Fetter Lane
London, EC4A 1NL
Mr Richard Bowles (instructed by Acuity Law Limited) appeared on behalf of the Claimant/Respondent.
Ms Rebecca Page (instructed by Reynolds Porter Chamberlain LLP) appeared on behalf of the Defendant/Applicant.
APPROVED JUDGMENT
This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved
JUDGE Hodge KC:
This is my extemporary judgment on a claim by Harrington Scott Limited against Coupe Bradbury Solicitors Limited which is proceeding in the Business List of the Business and Property Courts of England and Wales under claim number BL-2019-002077.
Over five days between 13 and 20 July 2022 I heard an application by the defendant, dated 30 March 2021, for summary judgment under CPR 24.2 and/or to strike out the particulars of claim under CPR 3.4 and/or the inherent jurisdiction of the court. On Michaelmas day 2022 I handed down my reserved judgment, which bears the neutral citation number [2022] EWHC 2275 (Ch). I had originally circulated the draft judgment on 5 September but that had generated further written submissions, initially from the defendant (and applicant), dated 8 September. In the light of those submissions, I directed further written submissions from the claimant (and respondent) which are dated 16 September; and I then received further written submissions on behalf of the defendant dated 20 September.
Before handing down my reserved judgment, Ms Rebecca Page (counsel for the defendant) and Mr Richard Bowles (counsel for the claimant) had agreed on the terms of an interim holding order consequent upon the remote handing down of my written judgment. Paragraph 1 of that holding order directed that the hearing relating to any arguments about costs, the form of order, any other consequential orders and directions, and any applications to this court for permission to appeal, should all be adjourned to the first available date convenient to the parties and the court, and to be listed before me, with a time estimate of half a day, plus half a day's pre-reading. In the event, the oral argument took place this morning, on Thursday 12 January 2023. The hearing concluded promptly at 1 o'clock; and this is my extemporary judgment following the argument on consequential matters.
The holding order also directed that the time for making any application for permission to appeal to this court by any of the parties should be extended until this adjourned hearing; and I extended time for the filing by any party of any appellant's notice or notices to 21 days after today. I gave directions for written submissions to be filed and served and, as a result, I have had the benefit of pre-reading the written submissions of Ms Page, who again appears for the defendant, and of Mr Bowles, who again appears for the claimant. There is a hearing bundle for the purposes of this hearing today which extends to a little over 620 pages; and there is a bundle of authorities extending to some 460 pages. That bundle is more extensive than was necessary because, on 5 December 2022, the defendant had issued an application for a third party costs order under s.51 of the Senior Courts Act 1981 in relation to the sole director and shareholder of the claimant company Mr Trevor Vickers. Happily, that application has been disposed of by way of a consent order that I approved yesterday. Effectively, the application for the third party costs order has been stood over until after the defendant has ascertained whether the claimant is in any position to discharge any liability for costs that may follow on from today's further order.
During the course of this hearing, Ms Page handed up a third witness statement of Ms Karen Morrish, a partner in the firm of RPC LLP (who are the defendant's solicitors), dated yesterday (11 January 2023), together with exhibit KM4, comprising some twenty-two pages of further documentation. There is before me a draft order settled by Ms Page, although it is accepted that it requires some amendment to reflect the consent order that was made yesterday in relation to Mr Vickers.
It is common ground that as a result of my substantive judgment, this claim should be dismissed and the particulars of claim struck out. Subject to any appeal, that will be the end of this claim. It is also common ground that, as a result of my substantive judgment, the successful party on both the claim and the application is the defendant. It is also common ground that the claimant should pay the defendant's costs of the claim, to include at least part of the costs of the application that came before me in July, and the costs of this consequentials hearing, to be the subject of detailed assessment (if not agreed). It is also common ground that the claimant should pay the defendant interest on its costs at a rate of 3% per annum from the date of actual payment of those costs down to the date of this hearing and, thereafter, at the rate specified by s.17 of the Judgments Act until the date of payment. It is also common ground that there should be an interim payment on account of the claimant's costs liability to the defendant. That, however, is the extent of the matters that are agreed.
There are issues as to the basis on which the costs liability of the claimant should fall to be assessed. The defendant urges the court to direct that the costs should be assessed on the indemnity basis, whilst the claimant urges that they should be assessed on the usual, standard basis. The practical effect of the difference is that on an indemnity basis of assessment, any doubt falls to be resolved in favour of the receiving, rather than the paying, party, as is the case on a standard assessment; and, also, whilst costs must be both reasonable in amount and reasonably incurred, on an indemnity basis, unlike a standard basis, assessment, issues of the proportionality of those costs do not fall to be considered. This is a case in which the parties' costs have yet to be budgeted. That is relevant to the amount of any interim payment on account of costs. There is also a dispute as to the extent to which the costs of the summary judgment and strike out application should be awarded to the defendant. There is a further discrete issue as to the costs thrown away by the adjournment of the first scheduled hearing of this application, which had been listed before Deputy Master Arkush in December 2021 and was adjourned by him to come on, in the event, before me, last July.
The order made by Deputy Master Arkush on 13 December 2021, after hearing Mr Thomas Grant QC and Ms Emily Gailey (of counsel) for the defendant (and applicant), and Mr Richard Bowles (also of counsel) for the claimant (and respondent), recorded that the court considered that the time estimate for the hearing of twelve hours and thirty minutes was insufficient. It also recorded that the court considered that the issues raised on the application were suitable to be heard by a High Court Judge, and that additional time of at least one day was likely to be required for preparation of the judgment. On that footing, the Deputy Master ordered that the application should be adjourned and re-listed, to be heard by a High Court Judge on the first available date, with a time estimate of four to five days, to include one day of judicial pre-reading, in addition to the minimum one day which was likely to be required for preparation of the judgment. The costs were expressly reserved. It is largely to address submissions made by Mr Bowles in his skeleton argument as to the events leading up to that adjournment (as recorded in that skeleton argument) that Ms Morrish's third witness statement, served yesterday, is directed.
I have had the opportunity of pre-reading the helpful, and detailed, skeleton arguments of both counsel. Happily, in light of the consent order that I approved yesterday, it was unnecessary for me to read that part of Ms Page's skeleton argument, beginning at paragraph 25, which is directed to the third party costs application in relation to Mr Vickers. However, I have read the remainder of that skeleton, and also Mr Bowles's skeleton; and I have done so referring to the relevant documents in the bundle for today's hearing. I have also been referred, during the course of today's hearing, to certain documents contained in the original trial bundle, which extended to almost 2,500 pages.
It is, as I say, common ground that costs should follow the event, and that those costs should include at least some of the costs of the application that was before me in July. However, although not separately highlighted in his skeleton argument, at paragraph 32 (1) Mr Bowles indicates that because the defendant brought an “unnecessarily lengthy and unwieldy application before the court”, and has only been successful on some of the issues — the precise number being in dispute between Mr Bowles and Ms Page — the defendant should not be entitled to recover all of the costs of the application for summary judgment and strike out. Mr Bowles has attempted an analysis of the various issues at paragraph...
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