Jeeg Global Ltd v John Hare
| Jurisdiction | England & Wales |
| Judge | Mr Justice Tugendhat |
| Judgment Date | 04 April 2012 |
| Neutral Citation | [2012] EWHC 871 (QB) |
| Date | 04 April 2012 |
| Docket Number | Case No: HQ11DO2758 |
| Court | Queen's Bench Division |
[2012] EWHC 871 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Tugendhat
Case No: HQ11DO2758
Paul Downes QC and Steven Reed (instructed by Wragge &Co) for the Claimant
Hugh Tomlinson QC and Richard Munden (instructed by Clintons) for the Defendant
Hearing dates: 29 March 2012
In the judgment I handed down on 29 March Neutral Citation Number: [2012] EWHC 773 (QB) I refused Mr Hare's application to strike out the claim as an abuse of the process of the court. This judgment sets out my decision on costs.
There is no dispute that Mr Hare should pay the Claimant its costs of the application to strike out. Mr Downes asked for those costs on an indemnity basis as from the letter dated 5 October 2011 referred to in para [18] of my first judgment.
I accept that the pursuit of the application to strike out stood less prospect of success following that letter. But I did not accept that it had become so unreasonable as to justify an order for indemnity costs.
After the handing down of my judgment, the parties submitted to the court a draft Order which included detailed directions to take the case to trial.
However, in response to a question from the bench, Mr Tomlinson made clear that the offer of a permanent undertaking to the court referred to in my judgment at para [21] of my judgment remained open.
There is nothing more than a permanent undertaking or injunction that the Claimant could achieve if successful at a trial. So on that basis, it seemed to me that, in the exercise of my case management powers in CPR Part 3.1(2)(f), I ought to accept the undertaking and stay the action.
In the course of submissions I asked Mr Downes if he had instructions whether he would oppose my imposing a stay, and making no order as to the costs of the action. I also indicated that by reason of the matters set out in paras [35] to [41] of my judgment, I would in any event have thought it right that the Claimant should not recover all of its costs of the action, in accordance with CPR Part 44.3(4) and (5)(a) (conduct of the parties).
I adjourned for some time to enable Mr Downes to seek instructions, but he was unable to obtain them. He made clear that he opposed my disposing of the matter in this way. He had had no notice, and was unprepared to argue the question. At a point at which, by a misunderstanding, I thought he had said all that he wished to say in the circumstances, I indicated that that was the order that I proposed to make. Mr Downes objected that he had not completed the submissions that he did wish to make. While accepting that the position was unsatisfactory in the light of that misunderstanding, I invited Mr Downes to complete the submissions that he said he wished to make. But they did not lead me to take a different view.
By letter dated 4 July Wragge & Co for the Claimant had served on Mr Hare a copy of the Order of Vos J dated 3 July, the Application Notice for the continuation of the injunction on the return date, the Claim Form, the Particulars of Claim and the Response Pack. Other steps taken by the Claimant in the action, or incidental to it, are set out in paras [1], [4] to [5] and [14]-[15] of my judgment. These included the preparation of a bundle for the hearing on 7 July (served by letter dated 6 July) and the collection of evidence as described in Wragge & Co's letter of 7 July. By the same letter they gave notice that they had entered into a conditional fee agreement with the Claimant, and they enclosed a notice of funding.
Amended Particulars of Claim were served by letter dated 19 July. Time for service of the Defence was agreed to expire on 3 August, and Mr Hare's Application to strike out the claim was served by him on that date. It is common ground that the Claimant must bear the costs of the amendment, and draft re-amendment to the Particulars of Claim.
In opening the Claimant's case to me on 20 March Mr Downes had stated that, in addition to the costs of Mr Hare's application to strike out the claim, the Claimant's base costs already amounted to £75,000. This sum seems very high to me for the steps described in para 9 above, but I have no breakdown, and am not engaged in an assessment. I shall assume that they are the reasonable costs for the work done, subject to the point on the Claimant's conduct under CPR Part 44.3 that I had raised.
On 29 March Mr Downes reminded me how large was the sum the Claimant had incurred in respect of costs the action, other than the costs of Mr Hare's Application Notice. He said that including the After the Event Insurance premium they were over £100,000. He submitted that if the action were to be brought to an end that day the court was required to reach a view as to which party was the successful party within the meaning of CPR Part 44.3(3)(2)(a):
"If the court decides to make an order about costs – (a) the general rule is that the unsuccessful party will be order to pay the costs of the successful party; but (b) the court may make a different order".
Mr Downes submitted that the Claimant is the successful party. Further, he submitted that I should not have regard to...
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