Mr Justyn James Page v RGC Restaurants Ltd

JurisdictionEngland & Wales
JudgeMr Justice Walker
Judgment Date15 October 2018
Neutral Citation[2018] EWHC 2688 (QB)
CourtQueen's Bench Division
Date15 October 2018
Docket NumberAppeal No: QB/2017/0313

[2018] EWHC 2688 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

On appeal from the order of Master Thornett

dated 19 December 2017 in Case No: HQ17P01545

Rolls Building

7 Rolls Buildings, Fetter Lane,

London, EC4A 1NL

Before:

Mr Justice Walker

Appeal No: QB/2017/0313

Between:
Mr Justyn James Page
Claimant and Appellant
and
RGC Restaurants Limited
Defendant and Respondent

Mr Benjamin Williams QC (instructed by Fieldfisher LLP) for the claimant appellant

Mr Andrew Roy (instructed by Keoghs) for the defendant respondent

Hearing date: 22 March 2018

Written submissions were completed on 21 April 2018

Mr Justice Walker

A. Introduction

4

B. Relevant CPR provisions

5

B1 The overriding objective

5

B2 Case Management: Section I of CPR 3

6

B3 Costs management

7

B3.1 Costs management: Section II of CPR 3

7

B3.2 Costs management: Practice Direction 3E

9

B3.3 Costs management: the Chancery Division Note

10

B3.4 Costs management: Costs & Funding Q & As

11

B3.5 Costs management: RGC's concession

12

B4 Case and costs management: leading cases

13

B4.1 The new more robust approach: Mitchell

13

B4.2 Mitchell: CPR 3.14 and proportionality

13

B4.3 Mitchell: meaning of “fails to file a budget”

14

B4.4 Mitchell: impact of failure to file a budget

14

B4.5 Mitchell: CPR 3.14 disapplication likened to CPR 3.9

15

B4.6 Mitchell: CPR 3.14 and the overriding objective

15

B4.7 Mitchell: relief against sanction

16

B4.8 Denton: a restated approach to CPR 3.9

17

B5 Appeals

19

B5.1 Nature of an appeal: CPR 52.21 (1)

19

B5.2 When an appeal will be allowed: CPR 52.21(3)

19

B5.3 The parties' observations on CPR 52.21

20

C. The proceedings

21

C1 The proceedings: case summary

21

C2 CCMC preparation up to 30 Nov 2017

22

C2.1 Mr Page's interim budget & draft directions

22

C2.2 RGC's budget

23

C2.3 Budget discussion reports

23

C3 Negotiations and agreement

24

C4 CMCC hearing, rulings and reasons

25

C4.1 CMCC hearing on Tuesday 5 December 2017: general

25

C4.2 Start of the CCMC: the master's concern and warning

25

C4.3 Proceeding in sequence: why not list to trial?

26

C4.4 Budgeting: what the master said on breach/relief

27

C4.5 RGC's budget

28

C5 The costs budgets order

29

D. Grounds of appeal, reasons for relief, & issues

29

D1 Grounds of appeal

29

D1.1 Grounds of appeal: overview

29

D1.2 Grounds 1 and 2: “a budget” had been filed

30

D1.3 Ground 3: “irrational” approach to incompleteness

30

D1.4 Ground 4A: CPR 3.15 agreement trumps CPR 3.14

31

D1.5 Grounds 4B and 5: consequences if CPR 3.14 is not engaged

31

D1.6 Ground 6: disapplying the default sanction

32

D2 Reasons for seeking relief against sanction

32

D3 Issues below

33

D4 Issues arising for determination

34

E. Applicability of CPR 3.14: grounds 1 to 5

34

E1 CPR 3.14 applicability: general

34

E2 Grounds 1 & 2: meaning of “a budget” in CPR 3.14

35

E3 CPR 3.14 applicability: agreement under CPR 3.15

38

E4 CPR 3.14 applicability: RGC's Budget

39

E5 CPR 3.14 applicability: potential consequences

39

E6 CPR 3.14 applicability: RGC's alleged bars.

40

F. Disapplying CPR 3.14: Ground 6

40

F1 Disapplication: general

40

F2 Disapplication: Mr Page's fundamental argument

40

F3 Disapplication: RGC's alleged bar

41

F4 Disapplication: consideration of disapplication below

43

F5 Disapplication: whether to order otherwise

45

G. The concession and relief against sanction

49

H. Conclusion

49

A. Introduction

1

This is an appeal from an order (“the costs budgets order”) imposing a sanction which limited the claimant's costs budget to applicable court fees only. The costs budgets order was made by Master Thornett at a costs and case management conference (“CCMC”) on 5 December 2017. It formed part of a more general order (“the CCMC order”) giving directions to trial. Prior to the CCMC the parties agreed all directions and costs budget figures for phases up to and including a proposed second case management conference (“CMC”) or pre-trial review (“PTR”). It was proposed that subsequent directions and costs budget figures be left over to be dealt with at the proposed second CMC.

2

The main issues arising on the appeal concern whether the claimant had filed a costs budget within the meaning of CPR 3.14, and if not whether the master ought to have disapplied the sanction under CPR 3.14. If the answer to both questions is “no”, or the answer to the second question is “yes, but only in part”, then subsidiary issues would arise on an application which the claimant has now made seeking relief against sanctions.

3

The claimant, Mr Justyn Page, appeals by permission granted by an order of Warby J on 22 February 2018. In addition, Mr Page applies in section 10 of his appellant's notice for an order granting relief from the sanction imposed by the master. Section 10 stated that the order granting relief was sought “by virtue of CPR 3.10.” In support of that application, section 11 of the appellant's notice contained a short witness statement by Mr Page's solicitor. The order of Warby J directed that the application for relief be heard concurrently with the appeal.

4

The defendant is RGC Restaurants Limited (“RGC”). At the hearing before me, RGC's primary response to the appeal was that the appeal should be dismissed. Similarly, RGC's primary case in answer to the application for relief was that it should be dismissed. RGC recognised, however, that the court might consider that partial relief would be appropriate. In that event RGC's alternative submission was that Mr Page's cost budget should be limited to the figures which had been agreed by RGC.

5

At the hearing before me Mr Benjamin Williams QC, instructed by Fieldfisher LLP (“Fieldfisher”), appeared for Mr Page. Mr Andrew Roy, instructed by Keoghs LLP (“Keoghs”), appeared for RGC. Neither counsel appeared below. I have the benefit of detailed skeleton arguments from each of them.

6

Following the hearing I received further materials. I deal with the content of those materials at appropriate points later in this judgment. For present purposes I summarise:

(1) on 27 March 2018 RGC made a concession and drew attention to two recent authorities;

(2) on the same day, a response was sent on behalf of Mr Page;

(3) on 9 April 2018 I was sent a revised transcript of the proceedings below;

(4) on 20 April 2018 RGC drew attention to a further recent authority, and later that day a response was sent on behalf of Mr Page.

7

The concession made by RGC on 27 March 2018 was prompted by a question I asked during oral argument. My question arose because there had been agreed figures for various phases in both sides' budgets. In that regard I asked whether RGC might be estopped from going back on its agreement. In section B3.5 below I set out the details of RGC's concession. For present purposes I note that RGC described the effect of the concession as being that:

“… the sanction can only bite on those phases which were not agreed.”

B. Relevant CPR provisions

B1 The overriding objective

8

CPR 1.1 provides, as amended in April 2013:

The overriding objective

1.1 – (1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

(2) Dealing with a case justly and at proportionate cost includes, so far as practicable –

(a) ensuring that the parties are on an equal footing;

(b) saving expense;

(c) dealing with the case in ways that are proportionate –

(i) to the amount of money involved;

(ii) to the importance of the case;

(iii) to the complexity of the issues; and

(iv) to the financial position of each party;

(d) ensuring that it is dealt with expeditiously and fairly;

(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases; and

(f) enforcing compliance with rules, practice directions and orders.

B2 Case Management: Section I of CPR 3

9

Section I of CPR 3 deals with case management. It compromises CPR 3.1 to CPR 3.11.

10

CPR 3.1 provides:

The court's general powers of management

3.1 – (1) The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have.

(7) a power of the court under these Rules to make an order includes a power to vary or revoke the order.

11

CPR 3.8 was amended in April 2013. There were further amendments in 2014. For present purposes, I need only set out provisions which took effect in April 2013 and were unaffected by the 2014 amendments:

Sanctions have effect unless defaulting party obtains relief.

3.8 – (1) Where a party has failed to comply with a rule, practice direction or court order, any sanction for failure to comply imposed by the rule, practice direction or court order has effect unless the party in default applies for and obtains relief from the sanction

(Rule 3.9 sets out the circumstances which the court will consider on an application to grant relief from a sanction)

(2) Where the sanction is the payment of costs, the party in default may only obtain relief by appealing against the order for costs.

12

General provision concerning relief from sanctions is found in CPR 3.9. With effect from April 2013 CPR 3.9 was amended to read:

Relief from sanctions

3.9–(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it...

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    ...is not required to take that starting point unless there has been a prior judicial decision to that effect ( Page v RGC Restaurants Ltd [2018] EWHC 2688…)” 21 In Page Walker J held at [136]–[138] where a party had failed to serve a budget in accordance with the rules, the court was required......
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    ...v RGC Restaurants Ltd [2018] EWHC 2688 (QB) The High Court has provided comment on the complex rules and discretions in relation to the filing of a partial costs budget, following a partially successful Representatives for the Claimant, Mr Page, filed a costs budget excluding the stages of ......
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    ...thought it was acceptable to file a costs budget excluding the phases of trial preparation and trial: Page v RGC Restaurants Ltd [2018] EWHC 2688 (QB). The decision illustrates the risks of filing a "materially incomplete" costs budget, even where a party considers it premature to budget fo......

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