QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE NICOL
| David Haigh
|- and -
|Westminster Magistrates Court
Husham Al Rayes
James Ramsden QC and Robert Dougans (instructed by Bryan Cave) for the 1st and 2nd Interested Parties
Crown Copyright ©
Mr Justice Nicol
'While we should not be taken as lending any encouragement to any wasted costs application, we consider that, if there is to be such an application, it should be made no later than 28 days after the formal order consequent upon this decision.'
'(i) that it has before it evidence or other material which, if unanswered, would be likely to lead to a wasted costs order being made; and
(ii) the wasted costs proceedings are justified notwithstanding the likely costs involved.'
'To make it absolutely plain, stage two would be about the costs relating to the instruction of Mr Fenwick, not more generalised arguments about additional costs. The rather broad or generalised suggestions in that regard either seem to us to raise matters which will not carry significant financial weight and so would be disproportionate, or are altogether too general to now warrant yet more time before the matter is investigated by a costs draftsman, with yet further costs for all concerned. Stage two – Mr Fenwick will forgive me putting it that way – is about Fenwick, in terms of costs.'
'(2) By 4.0pm on 23rd August 2017 [1 & 2IP] shall file and serve evidence in relation to the costs of Justin Fenwick for the hearing on 12th October 2016.
(5) By 4.0pm on 13th October 2017 the 1 & 2IP shall file and serve their outline submission for the stage 2 hearing together with an index for the proposed hearing bundle.
(6) By 4.0pm on 20th October 2017 the parties shall agree and lodge a hearing bundle.
(7) By 4.0pm on 27th October 2017 the 2nd Respondent [Mr Jones] shall file and serve his outline submission for the stage 2 hearing.
(8) The stage 2 hearing shall be listed for hearing on the first available date not before 15th November 2017, and if Listing allow, before the end of the Michaelmas Term 2017 with a time estimate of half a day, excluding judgment.'
- 1&2 IP evidence in relation to the costs of Mr Fenwick by 1st September 2017.
- 1&2 IP outline submission for the stage 2 hearing and index for proposed hearing bundle by 20th October 2017.
- Parties to lodge a hearing bundle by 27th October 2017.
- Mr Jones to file and serve his outline submission for stage 2 by 3rd November 2017.
'Solicitors for the 1 and 2 IP have explained that the evidence required to be served in accordance with paragraph 2 of the order was late due to the exigencies of work during the summer vacation. The parties are in agreement that extensions of time ought to be allowed and it is in the interests of justice to grant the application. Paragraphs 5, 6 and 7 have also been varied to allow some further leeway in the circumstances. The extensions of time do not adversely affect the remaining timetable set by the Divisional Court or the fixing of a hearing date.'
- An extension of time to serve their outline submission and a proposed index from 20th October to 3rd November 2017.
- An extension of time for lodging the hearing bundle from 27th October to 10th November 2017.
- An extension of time for Mr Jones to file and serve his outline submission from 3rd November to 17th November 2017.
The evidence in support of the application by the 1&2 IPs
'1. The 1&2 IP's leading counsel (Mr Ramsden QC) has been dealing with considerable work pressure, as has the solicitor with conduct of the matter (Mr. Dougans). They have simply been unable to complete the outline submissions by the date set out in the order.
2. In the circumstances the 1&2 IP did not consider it proportionate to instruct a different Leading Counsel, because of the sum at stake and the broad knowledge which Mr Ramsden QC has of this application in particular and the Haigh litigation in general.
3. In short I submit this further short delay will not inconvenience either [Mr Jones] or the Court. A hearing date has not yet been listed and accordingly there is neither any danger of [Mr Jones] having insufficient time to prepare for the hearing, nor is there any danger of a Court hearing which has been listed being vacated or the Court being otherwise inconvenienced, as no hearing date has actually been listed.'
The evidence in support of Mr Jones's application
The principles to be applied to the application by 1 &2 IP
'(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, including the need—
(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and orders.'
'A judge should address an application for relief from sanctions under CPR r 3.9(1) in three stages: (i) identify and assess the seriousness and significance of the failure to comply with any rule, practice direction or court order which engages rule 3.9(1) ; (ii) consider why the default occurred; (iii) evaluate all the circumstances of the case, so as to enable the court to deal justly with the application including the factors in sub-paragraphs (a) and (b) . The focus of the inquiry at the first stage should be not on whether the breach has been trivial but on whether it has been serious or significant. The assessment of seriousness or significance should not, initially at least, involve a consideration of other unrelated failures which may have occurred in the past. If a judge concludes that a breach is not serious or significant, relief from sanctions will usually be granted and it will usually be unnecessary to spend much time on the second or third stages. If the court decides that the breach is serious or significant, the second and third stages assume greater importance. Although the second stage cannot be derived from the express wording of the rule, it is important particularly where the breach is serious or significant.'
'The Court will give directions to be followed in each case to ensure that the issues are dealt with in a way that is fair and as simple and as summary as the circumstances permit. [our emphasis]'