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27th Jan 2023
Simon Davenport KC and Rowan Pennington-Benton instructed by Ince Gordon Dadds LLP for the 4th, 6th, 9th and 10th Defendants in the Development Claim (the IGD Defendants)
ADRIAN BELTRAMI KC (Sitting as a Judge of the High Court) :
There was insufficient time at the CCMC on 14 December 2022 to address the parties’ costs schedules in detail. Furthermore, I expressed the view that the figures contained in the Claimants’ costs schedules were too high and directed the provision of a single combined revised Precedent H, upon which the other parties could make submissions in writing. I have received written submissions from the Claimants, the IGD Defendants and PM. Regrettably, the revised Precedent H supplied by the Claimants contained arithmetical errors. Whilst these have since been corrected, through the second witness statement of Oliver Goldman, this has meant that the responses from the IGD Defendants and from PM were directed to a schedule which has now been superseded. This has led to unnecessary complication. Nevertheless, I feel able to deal with these matters on paper, rather than convene a further hearing, and am sure that it is in the parties’ interests that I do so. This judgment sets out my brief reasons for the conclusions I have reached.
I record that I have received no Precedent H from Mr Penfold.
Form of order
PM suggests that:
a. The order should record that the Claimants’ costs budget reflects the combined costs of two sets of proceedings and is not to be taken as the starting point for the assessment of costs either of the Development Claim or the Negligence Claim.
b. The order should also record that, in the event the Claimants succeed in one or more of the claims, the combined costs will not be recoverable in total against each Defendant, and that the trial judge will be required to perform an allocation.
c. The order should direct the Claimants, in the event of settlement of either claim, to serve an updated Precedent H pursuant to CPR 3.15A(1).
I agree that the order should record that the costs budget which I approve is the combined budget for the two sets of proceedings, in circumstances where the claims are to be case managed together and there is to be a joint trial. Beyond that, I do not consider it appropriate to add any gloss to that fact, to make any directions to the trial judge, or to cater now for the possibility of contingencies or obligations which may or may not arise under the CPR.
Claimants’ incurred costs
I am invited by the IGD Defendants and by PM to comment adversely on the level of the Claimants’ incurred costs, these now amounting to £676,748.58. At the time of the hearing, such costs did strike me as high and potentially disproportionate when set against the value of the claims. The Claimants seek to justify the figures by relying, principally, on the (a) the investigation work which was conducted during this phase (b) the complexity of the claims advanced; and (c) the evolution of the fraud claims during the course of the phase, leading to the need to make substantial amendments to the Particulars of Claim.
Whilst I continue to harbour impressionistic doubts as to the reasonableness and proportionality of the incurred sums, I have come to the conclusion that no adverse comment should be recorded in the order. In my view, I am not in a position to make an informed judgment, given the limited access that I have had to the underlying materials and the limited opportunity to explore the factors relied upon by the Claimants. These are matters which will no doubt be considered at length in a detailed assessment, if there is one. I do not believe that my more superficial impression is likely to assist that process.
I do agree with the suggestion that the incurred costs be listed separately, as between the two actions, even though the estimated costs will now cover both actions together.
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