We recently reported the decision of Mr Justice Foxton in Serbian Orthodox Church – Serbian Patriarchy v Kesar & Co  EWHC 1205 (QB) in which he reinstated a Default Costs Certificate despite invalid email service of the Notice of Commencement.
Following the making of a wasted costs order against them, the Claimants’ solicitors, Kesar, agreed via their principal Mr Kesar “to accept service by email as [long as] this is reciprocated”. Mr Donnelly, for the Defendant replied “No problem. Yes I’m happy to agree that moving forwards service of documents by email between us is accepted”.
Master Leonard (costs judge) rejected an application to set aside a default costs certificate in the sum of £363,695.28.
The defendant’s costs draftsmen had failed to serve Points of Dispute within the agreed extended time period for doing so as a result of, on their evidence, pressures of work exacerbated by the country going into lockdown in March 2020.
Following service of a default costs certificate four months after the extended deadline had been missed the Defendant applied to set it aside.
The judge found that the Denton criteria applied. It was accepted that the default was both significant and serious. The remaining question to be decided was whether in all the circumstances it would be just, bearing in mind all the circumstances of the case, to set the DCC aside.
The judge found that it was not.
Relief from sanctions was granted in a case where the appellant had failed to meet the deadline for payment of a sum which had been a condition for setting aside a Default Costs Certificate. After ruling on the principles of appropriation it was held that payment deadline had been missed by just a few hours. This had “made no practical difference whatever” and “it would be disproportionate and unjust to deprive the appellant of an opportunity to challenge the Default Costs Certificate”.