Nazirali Sharif Tejani v (1) Fitzroy Place Residential Ltd
| Jurisdiction | England & Wales |
| Judge | Ms Veronique Buehrlen |
| Judgment Date | 09 December 2022 |
| Neutral Citation | [2022] EWHC 3153 (TCC) |
| Docket Number | Case No: HT-2020-000162 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Year | 2022 |
[2022] EWHC 3153 (TCC)
Ms Veronique Buehrlen K.C.
Sitting as a Deputy High Court Judge
Case No: HT-2020-000162
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (KBD)
Royal Courts of Justice
Rolls Building, London, EC4A 1NL
T.C. Dutton KC and Mark Lorrel (instructed by Mortimer Court Chambers) for the Claimant
Gary Blaker KC and Paul De La Piquerie (instructed by Bryan Cave Leighton Paisner LLP) for the Defendants
JUDGMENT ON COSTS AND INTEREST
This judgment was handed down by the court remotely by circulation to the parties' representatives by email and released to The National Archives. The date and time for hand-down is deemed to be 9 December 2022 at 10.30am
Introduction
Judgment was handed down following the trial of this case on 2 November 2022. The Parties have filed written submissions on consequential matters with a view to the further issues arising being dealt with by the Court on paper. Those issues concern:
(i) Whether the Claimant should pay the Defendants' costs on the standard or the indemnity basis;
(ii) The amount of the payment on account of those costs;
(iii) The date for the payment of the payment on account; and
(iv) The rate of interest to be paid by the Claimant on the Defendants' costs pursuant to CPR 44.2(6)(g) and/or CPR 36.17(3)(b).
The basis of assessment
The Claimant rightly accepts that he “ has suffered a resounding defeat” and must therefore pay the Defendants' costs. The usual order would be for costs to be assessed on the standard basis. However, the Defendants submit that the costs ought to be assessed on the indemnity basis in this instance. They rely on nine reasons why they say the conduct of the Claimant, and other circumstances of the case, are such as to take the case “ out of the norm” such as to justify an award of indemnity costs. The Claimant takes issue with the Defendant's approach and submits that costs should be assessed on the standard basis.
Whether an order for indemnity costs ought to be made is a matter of discretion for the trial judge. All relevant circumstances of the case should be taken into account. Waller LJ addressed the breadth of that discretion in Excelsior Commercial and Industrial Holdings Ltd [2022] EWCA Civ 879 when he said at paragraph 32:
“This court can do no more than draw attention to the width of the discretion of the trial judge and re-emphasise the point that has already been made that, before an indemnity order can be made, there must be some conduct or some circumstance which takes the case out of the norm. That is the critical requirement.”
The question I have to ask myself is whether there is 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 (per Waller LJ in Excelsior at para. 39).
As noted above, the Defendants rely on 9 reasons which they say (presumably cumulatively) take this case “ out of the norm”. Firstly, the Defendants submit that the contrast between the nature and audibility of the noises complained of by the Claimant and those heard in Court was stark and that the claim was from the outset “ speculative, weak and opportunistic”. The Claimant denies that allegation largely on the basis that the Defendants were willing to make significant settlement offers based on the Claimant's and their own expert acoustic evidence. I do not consider that the Claimant's argument has merit. Parties make offers to settle litigation for a variety of reasons including the desirability of settling disputes, the inherent risks involved in litigation, the disruption it causes and the irrecoverable costs. The fact that the Defendants were willing to make a payment in order to settle the Claimant's claim does not signify that the claim itself had merit. However, whilst I agree with the Defendants that the claim was weak, I do not consider that it was speculative or opportunistic. The outcome of cases involving private nuisance can be difficult to assess and predict.
Secondly, the Defendants submit that the Claimant's account of the nature and audibility of the noises complained of was at odds with his own expert evidence and that despite that he continued to argue in evidence that the property was uninhabitable. It is correct that despite the amendment to his pleadings Mr Tejani did continue to assert, when giving evidence, that the property was uninhabitable. However, as I noted at paragraph 9 of the Judgment, I formed the view that Mr Tejani had difficulties when giving evidence that were explained by his ill health and lack of direct involvement in the relevant events. I would not regard his continuing, albeit very much mistaken, belief that the property was uninhabitable as justifying an award of indemnity costs.
Thirdly, the Defendants rely on the difference between the Calderbank and Part 36 offers made by the Defendants to the Claimant, which offers they say the Claimant unreasonably failed to accept, and the outcome of the proceedings. They also point to the fact that the Claimant failed even to acknowledge receipt of either offer (this being the Defendants' sixth reason). The fact that the Claimant failed to accept the Defendants' offers is not on its own a sufficient basis on which to award indemnity costs: see Excelsior per Waller LJ at [31]. However, it is a relevant factor. The failure to acknowledge an offer of settlement is not merely...
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