National Highways Ltd v Ana Heyatawin
| Jurisdiction | England & Wales |
| Judge | Dame Victoria Sharp P |
| Judgment Date | 18 November 2021 |
| Neutral Citation | [2021] EWHC 3093 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2021-003576 QB-2021-003737 |
[2021] EWHC 3093 (QB)
PRESIDENT OF THE QUEEN'S BENCH DIVISION
Mr Justice Chamberlain
Case No: QB-2021-003576
QB-2021-003626
QB-2021-003737
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Myriam Stacey QC, Joel Semakula & Horatio Waller (instructed by DLA Piper UK LLP) for the Claimant
Owen Greenhall (instructed by Hodge Jones & Allen) for Benjamin Buse; the other defendants appeared in person
Hearing dates: 16 and 17 November 2021
Approved Judgment (Costs)
Introduction
This is our judgment on costs, following our judgment on liability and sanction: see [2021] EWHC 3078 (QB).
A costs schedule was originally served on 15 November 2021. An updated schedule, with reductions to reflect the fact that the hearing was shorter than expected, was provided on 17 November 2021. The total now claimed is £91,307.92. The costs claimed comprise: (i) those specifically attributable to each defendant; and (ii) common costs incurred in the application generally and not specifically attributable to any defendant. The claimant seeks a separate order against each defendant comprising (i) and one ninth of (ii).
We heard brief submissions from Myriam Stacey QC on behalf of the claimant and from Owen Greenhall on behalf of Mr Buse. The other defendants made brief submissions opposing costs and noting that they were of limited means.
The law
The usual rule is that costs follow the event: CPR r. 44.2(2). The claimant did not suggest that costs should be assessed on the indemnity basis. Where costs are assessed on the standard basis, the question for the court is whether the costs claimed are “proportionately and reasonably incurred” and “proportionate and reasonable in amount”: CPR r. 44.4(1)(a). In considering those questions, the court must have regard to all the circumstances of the case and in particular to the factors set out in CPR r. 44.4(3), namely:
“(a) the conduct of all the parties, including in particular–
(i) conduct before, as well as during, the proceedings; and
(ii) the efforts made, if any, before and during the proceedings in order to try to resolve the dispute;
(b) the amount or value of any money or property involved;
(c) the importance of the matter to all the parties;
(d) the particular complexity of the matter or the difficulty or novelty of the questions raised;
(e) the skill, effort, specialised knowledge and responsibility involved;
(f) the time spent on the case;
(g) the place where and the circumstances in which work or any part of it was done; and
(h) the receiving party's last approved or agreed budget.”
The means of the paying party do not figure among these factors. The general position in civil litigation is that, if after applying the test in CPR r. 44.4 costs claimed were proportionately and reasonably incurred and are proportionate and reasonable in amount, an order will be made in that amount irrespective of the means of the paying party. Means may, however, be relevant when considering how much time should be given for payment and how the order should be enforced.
A three-judge panel of the Supreme Court confirmed recently in Attorney General v Crossland [2021] UKSC 15, at [9], that “[w]hen a respondent is found to be in contempt of court, there will usually be no principled basis for opposing a costs order… Normally, the sole question will be whether the costs claimed are reasonable and proportionate”. The panel went on, however, to make two further points. The first was that, in determining whether the claimed amount is reasonable and proportionate, the court may take into account the defendant's means. The second was that the court must ensure that the combination of the penal sanction and costs order do not constitute disproportionate interference with the defendant's rights under Articles 10 and 11 ECHR: see [10] and [12] respectively.
The authority cited for first of these points was the costs order and reasons of the Divisional Court (Dame Victoria Sharp P and Warby J) on 11 September 2019 in Attorney General v Yaxley-Lennon. Although in that case the contemnor was invited to file information about his means, he declined to do so. The Divisional Court did not in that case decide, as a general proposition, that a party's means are relevant to the question whether an opposing party's costs are proportionate and reasonable in amount. The reasons for the costs order are recorded in that order as follows:
“1. We can see no good reason to depart from the general principle that costs should follow the event.
2. We were initially asked to give the Respondent time to submit evidence of means before making a decision on costs. We did so even though, as a matter of principle, the payment of costs in contempt proceedings is not the equivalent of a fine in criminal proceedings, the assessment of which requires the court to have regard to means. In the event, no statement of means has been provided, and the Respondent has not disputed the amount sought by way of costs. We agree that the Applicant's costs are reasonable and proportionate, and we assess them summarily in the sums set out in the Applicant's revised statement.”
In many cases, it will be appropriate to invite the contemnors to file information about their means. One reason is that, when imposing a financial sanction, the court must consider means; and it would be impossible to do this without first knowing the extent of any costs liability. The court may even conclude that the liability for costs is on its own a sufficient sanction such that no penalty (in the strict sense) is required: see Deputy Chief Legal Ombudsman v Young [2011] EWHC 2923 (Admin), [2012] 1 WLR 3227, at [55], citing LTE Scientific Ltd v Thomas [2005] EWHC 7 (QB), at [105].
These cases show that the costs order may be relevant to sanction in a case where the court is considering imposing a financial sanction. Crossland was such a case. In our judgment, however, they do not show, as a general proposition, that the means of the contemnor are relevant to the proportionality or reasonableness of the costs claimed.
The second point emerging from Crossland is that the combination of sanction and costs order may be such as to constitute a disproportionate interference with the contemnor's rights under Articles 10 and 11 ECHR. The authority given for this is the decision of a Chamber of the European Court of Human Rights in Constantinescu v Romania, App. No. 32563/04, judgment of 11 December 2012, at [49].
This decision, which is available in French only, concerned libel proceedings in Romania in which the...
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