R Martin Kay v Scan-Thors (UK) Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Sweeney |
| Judgment Date | 26 October 2018 |
| Neutral Citation | [2018] EWHC 2842 (Admin) |
| Docket Number | Case No: CO/5897/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 October 2018 |
[2018] EWHC 2842 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Sitting at The Central Criminal Court
London, EC4M 7EH
Lord Justice Gross
and
Mr Justice Sweeney
Case No: CO/5897/2016
and
and
Adrian Darbishire QC, Rachna Gokani (instructed by Peters & Peters Solicitors LLP) for the Claimants
Peter Wright QC and George Hazel-Owram (instructed by Kuit Steinhart Levy LLP) for the Interested Party
Hearing date: 23 May 2017
Approved Judgment for Costs
Introduction
This is the judgment of the Court in relation to costs, to which we have each contributed.
On 23 May 2018 (see [2018] 4 WLR 91; [2018] EWHC 1233 (Admin)) the Court allowed the Claimants' claim for judicial review and quashed both the decision of the District Judge and the summonses issued against the Claimants by Leeds Magistrates' Court on 19 May 2016. On the same date the Court made an Order, in a form agreed between the parties, setting out a timetable of submissions in respect of the Claimants' application for costs in this Court and the Magistrates' Court.
Both sides have indicated that they are content for the Court to assess costs summarily based upon the written submissions that each has served – including the Claimants' Application for Costs; the Claimants' Amended Costs Schedules; the Interested Party's Response; the Claimants' Reply; and the Interested Party's Further Response.
In his Response, the Interested Party sought first to submit that, under Civil Procedure Rules 44.10(1), a deemed costs order had been made and that therefore each side would have to pay its own costs.
As the Claimants pointed out in their Reply, this was a surprising argument given that, between the provision by the Court of a draft of its judgment to the parties and the handing down of the judgment, Leading Counsel for the Claimants and then-Leading Counsel for the Interested Party had been in communication about a timetable in relation to costs, a form of Order had been agreed, and an Order in that form had been made by the Court on the day that judgment had been handed down. In any event, the Claimants argued, the Interested Party's submission was wrong in law.
In his Further Response, the Interested Party asserted that he was not fully aware of the correspondence that had been exchanged between Leading Counsel prior to the judgment being handed down – but made clear that he withdrew his first submission and no longer argued that a deemed costs order had been made.
For our part, it suffices to say, with emphasis, that the deemed costs order argument should never have been advanced.
The remaining submissions made by the Interested Party are, in summary, that:
(1) The Court should take into account, as a factor, that without reasonable excuse (and thus in breach of paragraph 9.5 of Practice Direction 44) the Claimants failed to serve a costs schedule 24 hours prior to the judicial review proceedings.
(2) The costs of the Magistrates' Court proceedings should be assessed and dealt with by the Magistrates' Court.
(3) Only a proportion of the Claimants' judicial review costs should be recoverable as not all their arguments were successful.
(4) The judicial review costs that are recoverable should be paid from central funds and not by the Interested Party.
(5) Costs should be assessed on the standard basis, not on the indemnity basis.
(6) Some of the costs and disbursements claimed were neither reasonably incurred nor reasonable in amount.
We propose to deal with each of those submissions in turn.
Breach of Practice Direction 44
The Claimants accept that they failed to serve a costs schedule, as required by paragraph 9.5 of Practice Direction 44, 24 hours prior to the judicial review proceedings – asserting that there was no prospect of the Court determining the claim, drafting and handing down judgment, and dealing with costs issues, all on the day of the hearing. The Claimants point out that the Interested Party also failed to serve a costs schedule and argue that that was no doubt for the same reason. In the result, the Claimants submit that, in the terms of paragraph 9.6 of the Practice Direction, there was therefore a reasonable excuse for not filing a schedule in advance of the hearing of the case, and thus no justification for any sanction on them.
Given the factual complexity of the case, and the number and importance of the legal issues involved, it was realistically unlikely that costs would be considered on the day of the hearing of the claim. It is therefore unnecessary to reach a conclusion on this submission, as nothing turns on it. While we draw back from holding that the Claimants had a reasonable excuse, no consequences followed from their failure to produce a schedule timeously. There is, accordingly, no justification for any sanction on them on this ground; the point is wholly arid.
Magistrates' Court proceedings
The Interested Party points out that s.19 of the Prosecution of Offences Act 1985 provides Magistrates' Courts with the power to make a costs order, and submits that the Magistrates' Court would be able to make any order that it deemed appropriate arising from his breach of the duty of candour. The Interested Party further submits that the judicial review proceedings were entirely separate, and that it should be borne in mind that the District Judge had considered the material that had not been disclosed originally and had ruled against the Claimants. It is further submitted that the judicial review proceedings related to the District Judge's decision and whether she failed to engage with issues raised on behalf of the Claimants, and that hence the costs of the judicial review were entirely separate to the costs incurred in the Magistrates Court.
The Claimants submit that the Interested Party's argument is misconceived. They argue that (whether by virtue of s.51 of the Senior Courts Act 1981 or s.66 of the Courts Act 2003) this Court has the power to order costs for both these proceedings and the proceedings in the Magistrates' Court; that there is no good reason why this Court should not determine the application now (which will avoid further time and expense being incurred by either party); that this Court has had the advantage of having seen, in the recent past, all the material that is relevant to the costs application (whereas the Magistrates Court gave its decision two years ago) and that this Court is therefore best placed in time to consider the question of costs globally; that (given the basis upon which judicial review was granted) this Court is far better placed to make a judgment on the conduct of the Interested Party in the Magistrates' Court than the District Judge would be; and that the two sets of proceedings were not separate given that, after the Interested Party's failure to comply with his duty of candour, when most (but still not all) of the relevant material was put before the District Judge, the Interested Party invited her to take the course that she eventually did and which the Interested Party tried (unsuccessfully) to defend in this Court. Ultimately, the Claimants submit that, simply put, if the Interested Party had acted properly, and in accordance with the Court's judgment, then the Claimants would not have incurred the costs in both courts that they have.
For the reasons advanced by the Claimants, we agree that the Interested Party's argument is misconceived. It is plainly appropriate for this Court, not the Magistrates' Court, to determine the Claimants' application...
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