ON APPEAL FROM THE HIGH COURT OF JUSTICE,
QUEEN'S BENCH DIVISION
HIS HONOUR JUDGE JEREMY RICHARDSON QC
(SITTING AS A HIGH COURT JUDGE)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LEWISON
LORD JUSTICE CHRISTOPHER CLARKE
| (1) HALLAM ESTATES LTD
(2) MICHAEL STAINER
|- and -
Mr Jonathan Lewis (instructed by Griffin Law) for the Defendant/Respondent
Hearing date: Monday 12th May 2014
Crown Copyright ©
Lord Justice Jackson:
|Part 1. Introduction||paragraphs 2 to 8|
|Part 2. The history of the proceedings||paragraphs 9 to 22|
|Part 3. Did the judge err in reversing the costs judge's decision?||paragraphs 23 to 34|
|Part 4. Did the judge err in directing that a default costs certificate be issued?||paragraphs 35 to 37|
|Part 5. Executive summary||paragraphs 38 to 40|
"Points of dispute and consequence of not serving
(1) The paying party and any other party to the detailed assessment proceedings may dispute any item in the bill of costs by serving points of dispute on –
(a) the receiving party; and
(b) every other party to the detailed assessment proceedings.
(2) The period for serving points of dispute is 21 days after the date of service of the notice of commencement.
(3) If a party serves points of dispute after the period set out in paragraph (2), that party may not be heard further in the detailed assessment proceedings unless the court gives permission.
(Practice Direction 47 sets out requirements about the form of points of dispute.)
(4) The receiving party may file a request for a default costs certificate if –
(a) the period set out in paragraph (2) for serving points of dispute has expired; and
(b) the receiving party has not been served with any points of dispute.
(5) If any party (including the paying party) serves points of dispute before the issue of a default costs certificate the court may not issue the default costs certificate."
"Default costs certificate
(1) Where the receiving party is permitted by rule 47.9 to obtain a default costs certificate, that party does so by filing a request in the relevant practice form.
(Practice Direction 47 deals with the procedure by which the receiving party may obtain a default costs certificate.)
(2) A default costs certificate will include an order to pay the costs to which it relates.
(3) Where a receiving party obtains a default costs certificate, the costs payable to that party for the commencement of detailed assessment proceedings will be the sum set out in Practice Direction 47."
"The Second Claimant's application was for an extension of time, not for relief from sanctions; there being no sanction from which to seek relief. An application for extension of time may be made retrospectively: see CPR 3.1(2)(a). Given the significant delay by the Defendant in commencing detailed assessment proceedings the extension of time sought by the Second Claimant was not unreasonable. In making the order dated 16th May 2013 the court had assumed that the Defendant had refused to agree an extension of time; otherwise the application would not have been required. The court having already ordered a payment on account of costs, it would not be appropriate to make a further order. The Defendant may apply for an interim costs certificate once a request has been made for a detailed assessment hearing."
i) There was non-disclosure of material facts by the claimants. "On that basis alone I am far from convinced the order can stand."
ii) The claimants' application for an extension of time was issued out of time. Therefore the claimants were seeking relief from sanctions.
iii) The recent civil justice reforms, in particular the new rule 1.1 (2)(f), require compliance with rules, practice directions and orders. The costs judge erred in granting relief from sanctions to the claimants.
iv) Therefore the costs judge's order must be set aside. In those circumstances the purported points of dispute which the claimants served on 17th June 2013 are not points of dispute at all.
v) Since the claimants have not served any points of dispute, the defendant is entitled to a default costs certificate under rule 47.9 (4).
i) The judge erred in reversing the costs judge's decision dated 31st May.
ii) The judge erred in directing that a default costs certificate be issued.
i) He was wrong to characterise the claimants' application for an extension of time as an application for relief from sanctions.
ii) The costs judge made case management decisions on 16th and 31st May with which the judge was not entitled to interfere.
Mr Lewis has valiantly sought to uphold the judge's order in both these respects.
"The court should be less tolerant than hitherto of unjustified delays and breaches of orders. This change of emphasis should be signalled by amendment of CPR rule 3.9."
That remains my firm view and I welcome the fact that the recommendation has been implemented, although some issues remain to be worked out in relation to the operation of the new rule 3.9. There is now a new and more disciplined approach to the conduct of civil litigation, as illustrated in many recent cases. See, for example, MA Lloyd & Sons Ltd v PPC International Ltd  EWHC 41 (QB).
Lord Justice Lewison:
Lord Justice Christopher Clarke: