SENIOR COURTS COSTS OFFICE
London, WC2A 2LL
B e f o r e :
|(1) ANDREW HARRISON|
|(2) ELAINE HARRISON||Claimants|
|- and -|
|BLACK HORSE LIMITED||Defendant|
Mr Daniel Saoul (instructed by SCM Solicitors, Barnet) for the Defendant
Hearing date: 29th November 2013
Crown Copyright ©
Master Gordon-Saker :
A brief history of the proceedings
Worcester County Court for trial. Following a one day trial on 11th June 2010 District Judge Marston dismissed the claim and the Claimants were ordered to pay the Defendant's costs.
reserved judgment handed down on 12th October 2011:  EWCA Civ 1128 ("the second appeal").
i) £49,877.84 in the County Court;
ii) £37,301.64 in the High Court;
iii) £1,483,384.70 in the Court of Appeal; and
iv) £959,253.20 in the Supreme Court.
assessed. The detailed assessment has been listed for 5 days commencing on 27th January 2014.
Funding of the claim
agreements with McHale & Co:
i) dated 13th January 2009 in respect of the proceedings in the County Court;
ii) dated 24th August 2010 in respect of the first appeal;
iii) dated 2nd December 2010 in respect of the second appeal; and
iv) dated 2nd December 2011 in respect of the third appeal.
The Claimants' applications for relief
Despite what is said within the narrative to the bill, the Respondent has received no Notice of Funding from the Appellants in relation to the High Court or the Court of Appeal CFAs. And that Accordingly by operation of CPR 44.3B(1) the Appellants are not entitled to recover any success fee on any base costs, or counsel's fees, incurred under those CFAs which are held to be recoverable.
i) Did the Claimants serve notice of funding in respect of the conditional fee agreement dated 2nd December 2010?
ii) If not, should the Court grant relief from sanctions?
Was notice of funding given to the Defendant?
anything to the DX box.
specifically remember what had happened, she said so. I have no reason to do
anything other than accept her evidence in its entirety.
"Service by post, DX or other service which provides for delivery on the next business day is effected by –
(1) placing the document in a post box;
(2) leaving the document with or delivering the document to the relevant service provider; or
(3) having the document collected by the relevant service provider."
"You must go further. Some evidence must be given that the letter was taken from the table in the counting-house, and put into the post-office. Had you called the porter, and he had said that, although he had no recollection of the letter in question, he invariably carried to the post-office all the letters found upon the table, this might have done; but I cannot hold this general evidence of the course of business in the plaintiff's countinghouse to be sufficient."
system, service cannot be deemed under CPR 6.26. As there is no evidence that the Defendant received these documents I cannot find that they were served.
"Where the funding arrangement has changed, and the information a party has previously provided in accordance with paragraph (1) is no longer accurate, that party must file notice of the change and serve it on all other parties within 7 days."
"(1) Unless the court orders otherwise, a party may not
recover as an additional liability—
(c) any additional liability for any period during which that party failed to provide information about a funding arrangement in accordance with a rule, practice direction or
Relief from sanctions
"(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, includingthe need—
(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and orders.
(2) An application for relief must be supported by evidence."
35. Mr Bowden's evidence was not challenged by cross-examination, although that course would have been available to the Claimants had they sought a direction at the hearing on 31st July 2013. Mr Browne QC, on behalf of the Claimants, sought to cast doubt on Mr Bowden's evidence and pointed in particular to a letter from the Defendant's solicitors to McHale & Co dated 6th March 2012 (pp 373-4) written as part of the negotiations which led to the settlement and the passage:
"Doubtless you will have considered that in the event that your clients proceeds [sic] with their appeal and the Supreme Court dismisses this appeal, then your clients will not see payment of any damages. Moreover, your firm will receive no payment of profit costs for the 4-5 years of litigation conducted on a "no win, no fee" basis. Your clients' "after the event" insurers will have to pay our client's costs if your clients lose for a fourth time in the Supreme Court."
Defendant's solicitors on 18th May 2012, but that was 7 months after the second appeal had been dismissed. It was included in a bundle of notices of funding attached to an email and I doubt that it would have been uppermost in Mr Bowden's mind when he was negotiating settlement of the third appeal. In any event the notice was dated (incorrectly) when the first appeal was still underway and the misdating was not pointed out or explained.
borderline case for relief from sanctions. That the Defendant had been given notice of an earlier conditional fee agreement would be in the Claimants' favour: Scott vDuncan  EWHC 1792, Montlake v Lambert Smith Hampton  EWHC 1503 (Comm). But this case is not, by any means, on all fours with those cases, where the breaches were more technical. That the failure to serve the notice was inadvertent would be in the Claimants' favour: Wyche v Careforce Group Plc  EWHC 3282 (Comm), para 24.
45. Shortly before the hearing of this application the Court of Appeal handed down judgment in Mitchell v News Group Newspapers Ltd  EWCA Civ 1526. That case was concerned with an application for relief from sanctions following the failure to file a costs budget in time. The Master of the Rolls, giving the judgment of the Court, said:
"40. We hope that it may be useful to give some guidance as to how the new approach should be applied in practice. It will usually be appropriate to start by considering the nature of the non-compliance with the relevant rule, practice direction or court order. If this can properly be regarded as trivial, the court will usually grant relief provided that an application is made promptly. The principle "de minimis non curat lex" (the law is not concerned with trivial things) applies here as it applies in most areas of the law. Thus, the court will usually grant relief if there has been no more than an insignificant failure to comply with an order: for example, where there has been a failure of form rather than substance; or where the party has narrowly missed the deadline imposed by the order, but has otherwise fully complied with its terms. We acknowledge that even the question of whether a default is insignificant may give rise to dispute and therefore to contested applications. But that possibility cannot be entirely excluded from any regime which does not impose rigid rules from which no departure, however minor, is permitted.
41. If the non-compliance cannot be characterised as trivial, then the burden is on the defaulting party to persuade the court to grant relief. The court will want to consider why the default occurred. If there is a good reason for it, the court will be likely to decide that relief should be granted. For example, if the reason why a document was not filed with the court was that the party or his solicitor suffered from a debilitating illness or was involved in an accident, then, depending on the circumstances, that may constitute a good reason. Later developments in the course of the litigation process are likely to be a good reason if they show that the period for compliance originally imposed was unreasonable, although the period seemed to be reasonable at the time and could not realistically have been the subject of an appeal. But mere overlooking a deadline, whether on account of overwork or otherwise, is unlikely to be a good reason. We understand that solicitors may be under pressure and have too much work. It may be that this is what occurred in the present case. But that will rarely be a good reason. Solicitors cannot take on too much work and expect to be able to persuade a court that this is a good reason for their failure to meet deadlines. They should either delegate the work to others in their firm or, if they are unable to do this, they should not take on the work at all. This may seem harsh especially at a time when some solicitors are facing serious financial pressures. But the need to comply with rules, practice directions and court orders is essential iflitigation is to be conducted in an efficient manner. If departures are tolerated, then the relaxed approach to civil litigation which the Jackson reforms were intended to change will continue. We should add that applications for an extension of time made before time has expired will be looked upon more favourably than applications for relief from sanction made after the event."
"… probably had an impact on the conduct of the action (because until then [the first defendant] was not in possession of all of the information relevant to a disposal of the claim) and [the second claimant] has not demonstrated that it did not."