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”.
The second to fifth defendants (“the defendants”) in this case applied to set aside a default costs certificate which the claimant had obtained in the sum of US$3,730,290.
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 refused to the second Defendant (“D2”) in this case following the late filing of its costs budget.
Having initially failed to file its budget prior to the CCMC (which was adjourned) D2 then failed to file it less than 21 days prior to the adjourned hearing.
To compound matters, D2 then left it until the day before the adjourned CCMC to file and serve its application for relief.
Finding that there had been “an abysmal approach on D2’s part to conducting this litigation efficiently” HHJ Simon Barker QC refused relief from sanctions result in D2 being treated as having filed a budget comprising only the applicable court fees.
Lionel Persey QC sitting as a Deputy Judge of the High Court granted the Defendants relief from sanctions following the late filing of their costs budget by 13 days. It was accepted that the breach had been inadvertent and understandable given that the Defendants had been relying on an agreed table of procedural steps to be completed before the CCMC, which made no mention of costs budgeting. It was found that the Defendants had “dropped the ball” but that their default was not egregious in the particular circumstances of the case.
On a cross appeal arising out of this failed RTA claim Mr Justice Julian Knowles overturned the trial judge’s finding that the claimant had not been fundamentally dishonest in his claim against the defendant. Thus, it followed, QOCS was disapplied and the defendant became entitled to enforce the order for costs in its favour to its full extent.
We reported recently on HHJ Klein’s dismissal of the appeal in this Solicitors Act dispute between Stewarts Law (“the Respondent”) and their former client, Mr Ainsworth (“the Appellant”). Two weeks prior to that decision Mr Justice Roth determined applications by the Respondent: to set aside the order granting the Appellant permission to appeal on grounds that it was out of time pursuant to CPR 52.18(1)(b); and if the appeal was allowed to proceed, an order under CPR r.52.18(1)(c) that it be conditional on payment of the full amount ordered by the costs judge.
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”.
In another case involving the late filing of a costs budget the High Court refused the defendant relief from the sanction of CPR 3.14, thus deeming them to have filed a budget comprising applicable court fees only. The defendant had filed their budget two weeks after the deadline and did not apply for relief from sanctions until the morning of the costs and case management conference. The Hon. Mr Justice Bryan found that the breach was both serious and significant, there was no good reason for it and the application for relief had not been made promptly.
Mr Justice Walker allowed an appeal in part against the imposition of a sanction under CPR 3.14 which limited the claimant’s costs budget to applicable court fees only following the filing of a costs budget which failed to deal with the trial and trial preparation phases. The parties had agreed all other phases up to and including a proposed second CMC or PTR and it was proposed that subsequent directions and costs budget figures be left over to be dealt with at that point. Master Thornett did not accept the parties’ proposed course and determined that in failing to file a complete budget the claimant had failed to comply with CPR 3.13, thus invoking CPR 3.14. The consequence of Walker J’s decision on appeal was to disapply the sanction in respect of those parts of the budget which had been completed and agreed but to leave in place the CPR 3.14 sanction in respect of both the trial and trial preparation phases, thus depriving the claimant of the ability to recover any costs in relation to those phases.