Mr Justyn James Page v RGC Restaurants Ltd
Jurisdiction | England & Wales |
Judge | Mr Justice Walker |
Judgment Date | 15 October 2018 |
Neutral Citation | [2018] EWHC 2688 (QB) |
Court | Queen's Bench Division |
Date | 15 October 2018 |
Docket Number | Appeal 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
Mr Justice Walker
Appeal No: QB/2017/0313
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
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
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.
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.
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.
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.
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.
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.
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
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
Section I of CPR 3 deals with case management. It compromises CPR 3.1 to CPR 3.11.
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.
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.
…
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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