Blog - Friday 30 May 2014

Proportionality begins at home 

Yesterday I attended court on an application seeking an alternative percentage increase (pursuant to the pre 1 April 2013 CPR.r45.18) in an RTA that had settled for £800,000. It was listed at 10.30am for 2 hours with a further 30 minutes reading time. Upon arriving at court and meeting my opponent we were promptly told that a CMC had been put in the list before our application and that another hearing had been put in at 12 noon. 

Inevitably we did not get into court until well after 10.30 when we were told that given the issues on our case, together with the 12 noon hearing, there would be insufficient time to ensure justice was properly served. The hearing was adjourned to be re-listed with costs in the application/issue.

The parties were all prepared, skeleton arguments and a bundle had been lodged but the lack of court resources resulted in the wasted costs of travelling, waiting and attending a hearing that did not take place; costs which the loser of that application will now have to bear.

This is, unfortunately, not an isolated incident with courts double and treble listing cases.

Parties are continually being advised by the courts to enter into litigation proportionately and are often penalised when they do not. But situations like this are increasingly more common and are out of the parties' hands. 

Proportionality surely begins at home...and where the courts prevent parties from engaging in proportionate litigation, a straightforward procedure to claim against the Court Service or Parliamentary and Health Service Ombudsman should be in place.

I dealt with a successful appeal in the Birmingham County Court at the beginning of the year concerning when a cost budget needed to be filed (see Porbanderwalla v Daybridge Ltd). That was an appeal from a District Judge who had made an 'on the papers' case management decision resulting in both parties being limited to court fees only for apparently failing to file costs budgets in accordance with the rules. Unsurprisingly, the Claimant appealed and the Defendant did not contest it as the order adversely affected both parties.

The finding on appeal was that the first instance decision was wrong but the costs order was that the costs of the appeal be costs in the case ! Why should either party be expected to pick up the tab where the appeal was from a case management order that was wrong and which was made where the parties had correctly interpreted the rules and the District Judge had misinterpreted them? Again, another situation where a claim against the Court Service would be appropriate.

These are not isolated incidents and the courts are contributing to the disproportionality of litigation up and down the country in various ways. It's only fair and just that they too be held accountable in costs where appropriate.

By Nick McDonnell, Senior Associate/Costs Lawyer

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