Igloo Regeneration (Gp) Ltd and Others v Powell Williams Partnership
| Jurisdiction | England & Wales |
| Judge | Mr Justice Akenhead |
| Judgment Date | 24 June 2013 |
| Neutral Citation | [2013] EWHC 1859 (TCC) |
| Docket Number | Case No: HT-13-67 |
| Date | 24 June 2013 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2013] EWHC 1859 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
The Rolls Building
7 Rolls Buildings
London EC4A 1NL
Mr Justice Akenhead
Case No: HT-13-67
Mr Tom Leech QC and Mr Adam Smith (instructed by Messrs Eversheds) appeared on behalf of the Claimants.
Miss Anneliese Day QC and Mr Michael Ryan (instructed by Messrs Weightmans LLP) appeared on behalf of the Defendant.
I will now formally hand down judgment in this matter, and I do so. I have heard argument from the parties as to the nature of the costs order. It is accepted by the Claimants that overall, having lost in these proceedings, they must pay the Defendant's costs at least on a standard basis. The Defendant, however, argues that it should be entitled to indemnity costs.
The authorities are now well established and I do not intend to repeat them. There is largely, if not entirely, an overlap between what both counsel are putting forward as the appropriate basis: cases such as Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hammer Aspden & Johnson (a firm) [2002] EWCA Civ 879, per Waller LJ, in which he said:
"Is there something in the conduct of the action or the circumstances of the case which takes the case out of the norm in a way which justifies an order for indemnity costs?"
There are also the well known cases of Kiam v MGN Ltd (No 2) [2002] 2 All ER 242, in particular the judgment of Simon Brown LJ (as he then was), Gloster J (as she then was) in Euroption Strategic Fund Ltd v Skaninaviska Enskilda Banken AB [2012] EWHC 749 (Comm), and this Court in Walter Lilly & Co Ltd v Mackay & Anr [2012] EWHC 1972 (TCC), although this was on obviously on different facts and considerations, when the Court referred to yet more authority, in particular Andrew Smith J in Fiona Trust & Holding Corporation v Yuri Privalov [2011] EWCR 664 (Comm) and The Mayor & Burgesses of the London Borough of Southwark v IBM UK Limited [2011] EWHC 653 (TCC). I do not intend to repeat the summary of principles and considerations to be taken into account. Obviously, the fact simply that one parties loses the case, and maybe loses it on the basis of a firm judgment, does not mean, as such, that the losing party should pay costs on an indemnity basis. There must be some conduct which takes the case out of the normal run of the mill.
This is a case in which the Claimants broadly had an arguable case. It is not a case that raises any great points of law. It raises, in terms of liability, relatively simple issues as to whether or not the Defendant had failed to exercise reasonable care and skill. Much of the case came down to an even simpler consideration, which was whether the Defendant during the course of its surveying and reporting should have carried out a stress calculation to see what that would throw up and as to whether it would throw light on what the actual, or at least realistically possible, cause of the cracking in this case was.
It does seem to me that, at least up until September/October and possibly even going into November 2012, whilst there had been some attempts to settle the case (there were two mediations and at least one offer had been made some time before by the Defendant on a costs-inclusive basis), matters were proceeding in the usual way to trial. If there had been an appropriate Part 36 offer accepted, there would have been no room for any costs basis other than a standard basis. But it may be thought and it is certainly argued that, come October 2012, the position may well have changed.
Expert reports were exchanged in the summer of 2012.
On 29th August, the Defendant made an all-inclusive offer of £600,000 (all-inclusive in the sense of including the costs). It is fair to say that an offer at that level, which was later explained as being £300,000 for the damages and £300,000 for costs, was more than a nuisance offer. It compared with what the money claim, inclusive of interest, was or could well have been, which was substantially over £1m. This provoked a response. The parties seem to have gone down the route on most occasions of exchanging correspondence, although, there were some telephone conversations explaining, amplifying or indeed making offers.
On 28th September 2012, the Claimants made an offer to accept £1.3 million in settlement of the claim, including costs and interest. Although the figures were far apart, in relative terms nonetheless, because it was a costs-inclusive offer, it compared at least with the offer that had been made about a month before.
On 1st October 2012, we begin to get Part 36-type offers coming in. The Defendant made an offer of £400,000 under Part 36. That was inclusive of interest and it bore the cost consequences of Part 36, so that, if the Claimants had accepted it, they would have had their costs paid up to the date of the acceptance if that acceptance was within the 21 day period following the offer.
On 3rd October 2012, the Claimants themselves made a Part 36 offer to accept £850,000 with costs to be assessed; alternatively £1.3m inclusive of costs and interest. That compared with the offer that they had made five days before.
On 9th October, the Defendant, in effect, put in a further Part 36 offer. The sum of £600,000 inclusive of interest was offered.
The parties were moving a bit closer because, on 22nd October 2012, the Claimants edged down from £1.3m inclusive of interest and costs to £1.175m.
Two days later, on 24th October, the Defendant rejected that offer and offered to settle for £800,000, but this was inclusive of costs, inferentially at least, for some £200,000 of costs.
What then happened was very odd, in my view. On Friday, 26th October 2012, the Claimants made an offer, which it seems to have been accepted was without prejudice save as to costs, to accept a total sum of £729,500, plus costs to be assessed if not agreed. This was made at a time when the trial in Chester before His Honour Judge Halbert was due to take place about two weeks or so later. This offer was said to be open until 4pm on the following Monday, so the weekend intervened. It was clear by this stage that substantial trial costs were being incurred. Brief fees (or their instalments) were due to accrue and the inference was that it would make sense for the Defendant to accept that offer. It will be appreciated that the Claimants had clearly come down from their most recent Part 36 offer, which was £850,000 plus costs to be taxed, so it had dropped by just over £120,000.
The Defendant did not, at that stage, indicate that they were prepared to accept that offer.
However, on 30th October, the following Tuesday, the £729,500 having not been accepted within the proffered time, the Defendant through its solicitors offered to settle at £664,750 plus costs to be assessed if not agreed. That offer, however, was only open until 8.30 the following morning, this conversation having taken place some time shortly after 5pm. The parties were edging yet closer to each other. But, 10 minutes later, the response from the Claimants' solicitor was to reject that offer of £664,750.
Three days later, on Friday 2nd November, the Defendant's solicitor, without prejudice save as to costs, offered by telephone and repeated by email at 12.49 on the same day to settle the claim for £729,500 inclusive of interest, "plus your clients' reasonable costs to be agreed or assessed". This offer was said to be open for acceptance until 5pm that day, so there was, to be precise, four hours and 11 minutes of the working day on that Friday for it to be accepted.
That offer was not responded to until 6th November 2012, when the Claimants' solicitor said that the offer was rejected, but they held the door open at least for further discussions.
The next and almost last offer was made on 14th November 2012. Eversheds, the Claimants' solicitors, had gone back from the brink of settling at £729,500, which was their own clients' figure at the end of October, to saying on behalf of their clients that they wanted £850,000 plus costs to be agreed if not assessed. That offer was concluded by saying:
"This is our clients' final attempt to settle this matter. In the event that this offer is not accepted by the deadline set out above, our clients will simply proceed to trial. We also wish to make it clear that our clients would not be amenable to splitting the difference between this offer and your client's previous offer and any such counter-offer by your clients on that basis would be rejected."
Given that, it is perhaps not surprising that there was no further discussion. Effectively the offer was made on the...
To continue reading
Request your trial
-
Peter Kellie and Another v Wheatley & Lloyd Architects Ltd
...and bore the risk of an order for indemnity costs. Mr Lixenberg relied on the approach taken by Akenhead J in Igloo Regeneration (GP) Ltd v Powell Williams Partnership [2013] EWHC 1859 (TCC), where indemnity costs were awarded from shortly after the date when it ought to have been apparent......
-
Savoye and Savoye Limite v Spicers Limite
...have been addressed in numerous cases and in broad terms, this Court in Igloo Regeneration (GP) Ltd v Powell Williams Partnership [2013] EWHC 1859 (TCC) broadly summarised the position: "2 The authorities are now well established and I do not intend to repeat them. There is largely, if not ......
-
Andrew Heathcote and Another v Harjinder Doal
...circumstances where the court had to consider whether or not to make such an order. The first is the case of Igloo Regeneration (GP) Limited and others v Powell Williams Partnership [2013] EWHC 1859 (TCC), a decision of Akenhead J in a defamation action, where he found that refusal by a cla......
-
Car Giant Ltd and Another v The Mayor and Burgesses of the London Borough of Hammersmith
...such as a refusal to accept reasonable offers ( Franks v Sinclair (Costs) [2006] EWHC 3656 (Ch) and Igloo Regeneration (General Partner) Ltd v Powell Williams Partnership (Costs) [2013] EWHC 1859 (TCC).) Similarly an unreasonable refusal to engage in mediation might also justify an order fo......
-
Table of cases
...v Powell Williams Partnership [2013] EWHC 1718 (TCC) II.10.150 Igloo Regeneration (General Partner) Ltd v Powell Williams Partnership [2013] EWHC 1859 (TCC) III.26.272 IIG Capital LLC v Van der Merwe [2008] EWCA Civ 542 II.12.18 “Ijaola” he [1979] 1 Lloyd’s Rep 103 III.16.29 Ikic v Evans (1......
-
Litigation
...(UK) Ltd [2013] EWHC 1643 (TCC) at [16]–[17], per Coulson J; Igloo Regeneration (General Partner) Ltd v Powell Williams Partnership [2013] EWHC 1859 (TCC) at [2]–[3], per Akenhead J; Kellie v Wheatley & Lloyd Architects Ltd [2014] EWHC 2886 (TCC) at [18]–[19], per HHJ Keyser QC; Network Rai......