England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/11/2014

Mr Justice Edis :

1. On 6^th November 2014 I heard and decided three applications. My judgment given to the parties on that day and handed down formally today so that it enters the public domain deals with the outcome of the applications. They were as follows:-

i) An application by the Claimant dated 30^th October 2014 for a costs capping order or a costs management order and for some pre-trial directions. This is supported by a witness statement by the Claimant's solicitor, Mr. Ashley Hurst. The Second Defendant's solicitor has responded with a witness statement (the 4^th statement of David Barker) dated 3^rd November 2014.

ii) An application by the Claimant dated 31^st October 2014 for an order that the Second Defendant should answer some Part 18 requests and give some further disclosure. This is supported by a witness statement by the Claimant's solicitor, Mr. Ashley Hurst (his 4^th, dated 31^st October 2014). The Second Defendant's solicitor has responded with a witness statement (the 6^th statement of David Barker) dated 5^th November 2014. This application has been withdrawn because the grounds of opposition have made it clear that it is unnecessary.

iii) An application by the Second Defendant dated 3^rd November 2014 for an order that the Claimant should answer some Part 18 requests and give some further disclosure. This is supported by David Barker's 5^th witness statement dated 3^rd November 2014.

2. In this judgment I deal with the costs of those applications. I have received written submissions on costs and N260 Statements of costs from the parties for which I am grateful.
3. THE CLAIMANT'S COSTS APPLICATION

i) The Claimant applied for a costs cap or, in the alternative, a costs management order which addressed the budget of prospective costs. The application sought a cap on the Second Defendant's costs at the same sum as the Claimant's estimated costs. In the Claimant's Skeleton Argument at paragraph 38(c)(2) the claim was for a costs cap at £1.25m being the sum which, by that date, the Second Defendant had already incurred.

ii) In the end, I refused the application for a costs cap, reduced the figures for three items on the Second Defendant's budget, and made some observations about the level of costs incurred by the Second Defendant to date. It seemed to me that the stage of the proceedings prevented any cost capping order because so much had already been spent at a level of costs which made detailed assessment inevitable (if there ever is an order for costs in favour of the Second Defendant).

iii) The Claimant therefore achieved some significant costs protection in respect of future costs, and some observations from the Court about the level of costs incurred by the Second Defendant in the past which may be of benefit to him on any detailed assessment. He achieved this because he persuaded me that he was right in his principal complaint which was that the costs of the Second Defendant were disproportionate.

iv) The Claimant has therefore achieved partial success in his application which was opposed by the Second Defendant. I consider that the proper order is that he should have 75% of his costs of that application. I have reduced the level of costs by 25% because I consider that the costs cap application was optimistic and that it added somewhat to the costs of the application and of the hearing.

4. THE CLAIMANT'S PART 18 AND DISCLOSURE APPLICATION

i) This application was designed to test the assertion that google.com was not widely used in this jurisdiction. I dealt with this in paragraph 9(i) and 14(i) of my main judgment. I add that a substantial ground of opposition advanced by the Second Defendant related to the confidentiality and commercial sensitivity of the information sought. Given that the true information would have revealed that the Second Defendant's pleading did not set out the position accurately this was not an attractive stance. Neither was it attractive to allege that there was a risk of breach of commercial confidence because the Claimant's solicitor acts for some of the Second Defendant's commercial competitors (see the Second Defendant's solicitors' letter of 31^st October 2014). This stance was sensibly modified the day before the application was due to be heard, and the Claimant immediately indicated that he withdrew the application but would seek the costs of it. This was the result of the Second Defendant's solicitor saying that the actual number of searches using google.com in the UK was "millions" which was a small percentage of the total number of Google searches done here, but still a large enough number to falsify paragraph 12.4 of the Defence.

ii) The application succeeded in obtaining clarity and an admission which will remove an issue from the trial and be conducive to the efficient conduct of the trial. In principle I consider that the facts to which I have referred above show that the Claimant should recover the costs of the application.

iii) However, I would not have made the disclosure order which is the second part of this application in the present circumstances. That was capable of producing a very large amount of material which could not possibly have been processed into a useful evidential form and dealt with during a trial starting on 24^th November 2014 and expected to take 5 days. Parties should be careful when making specific disclosure requests to make them sensible and proportionate and in my judgment this request was too wide and too late.

iv) Again therefore I consider that there should be a discount from the costs recoverable by the Claimant for this application and I order that the Second Defendant shall pay 75% of these costs.

5. THE SECOND DEFENDANT'S APPLICATION

i) This was in two parts, a Part 18 Request and an application for disclosure. The first failed entirely, but the second did result in an order for an amended disclosure statement addressing an inconsistency concerning deleted emails which was created by the Claimant himself. The application for disclosure of some concerning Digitalis Reputation Limited documents failed.

ii) The Second Defendant's application therefore failed in that I refused to order an answer to the Part 18 Requests and refused to order any disclosure. I did make an order for some relief in relation to deleted emails which was to address a problem which was the Claimant's fault. This was not the relief actually claimed, but a form of relief suggested by counsel for the Claimant which seemed to me to be proportionate.

iii) Because the Second Defendant's application failed the Claimant should have his costs of it, but again he should bear a penalty because of the confusion created by the different explanations about email deletion. I will therefore award him 75% of the costs of the Second Defendant's application and make an order that he should not be permitted any costs of complying with my order for an amended Disclosure Statement if he recovers an order for costs in his favour at trial. There will be no order for the costs of that work.

6. SUMMARY ASSESSMENT

i) I agree with the Second Defendant that the Claimant should have distinguished in his Form N1260 between the different applications because had they not all resulted in the same order, summary assessment would have been very difficult. In the result, however, it is possible. This is because the exercise is to assess the costs of the three applications taken together and then to apply a 25% discount to them. I can do that with the Form N260 which I have.

ii) I have had regard to the Second Defendant's Forms N260 which do distinguish between the three applications and which do provide for representation by Leading and Junior counsel at the hearing, whereas the Claimant was represented by Junior counsel only, after advice had been received from Leading Counsel. I note that the total incurred by the Second Defendant is higher than that claimed by the Claimant.

iii) This kind of procedural application is well within the competence of experienced junior counsel. I therefore disallow the sum of £2,500 claimed for "advice/documents" in respect of the services of Leading Counsel. I also make an adjustment because I do not believe that a costs draftsman is required for matters of this kind. I do not know what the fee claimed for that service is, and make a reduction to the "Other Expenses" claim of £3,500 to £1,500. I have used the total claim advanced by the Second Defendant of £900 for the allowable elements of this claim as a yardstick.

iv) This means that I assess the total bill of costs allowable at £30,000 (rounding the figure slightly down). Applying the discount of 25% results in an order that the Second Defendant shall pay the Claimant the sum of £22,500 in respect of his costs of these three applications. This sum seems to me to be just and proportionate.