England and Wales High Court (Technology and Construction Court) Decisions

IN THE HIGH COURT OF JUTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
TECHNOLOGY AND CONSTRUCTION COURT

		Case number 4 BM 50028 BIRMINGHAM CIVIL JUSTICE CENTRE 33 BULL STREET BIRMINGHAM B4 6DS
		12 November 2004

 

1. This is an application by the claimant for an order for a pre-emptive costs cap so as to limit the defendant's maximum reasonable and proportionate recoverable profit costs to a total of £20,000. It is common ground that the court has jurisdiction to make an order of this nature. In issue is whether it is appropriate for the court to make such an order.

Background

2. The claimants' case is that they had an interest in land at 57 London Road, Worcester from which they carried on their business. The defendant holds a licence under Section 7 Telecommunications Act 1984 and authorisation under the Communications Act 2003. Telecommunications apparatus was installed at 55 London Road, Worcester in the summer of 2003. The thrust of the claimants' claim is that their enjoyment of their property has been impaired by the effects of the apparatus.
3. On 11 September 2003 the claimants gave the defendant notice of objection under paragraph 17 (2) of the Code contained in the 1984 Act. (The defendant challenges the validity of that notice). The claimants issued proceedings in December 2003. In their particulars of claim, they claimed that they, their family and employees suffered physical illness, which was at its worst during the hours when they believed the level of activity of the apparatus was at its highest. They claim to have been unable physically to remain in the property for 24 hours a day and to have been forced to find alternative premises for their business. The relief they claimed was an order that the apparatus be removed or be reinstalled in such a way as not to injure them. They also claimed damages, which they said were in excess of £150,000, including the cost of moving to alternative premises, financing charges to meet the cost of moving and diminution in value of the property.
4. The defendant served its defence on 26 January 2004 and, at the same time, made a Part 18 request for further information. The claimants responded to the Part 18 request on 6 February 2004.
5. By letter dated 11 February 2004, the defendant's solicitors Freshfields Bruckhaus Deringer ("FBD") wrote to Hulme & Co, the claimants' solicitors ("H & Co") suggesting that the action be transferred from the Worcester County Court to the High Court in London. In that letter they referred to the criteria for transfer of proceedings from the County Court to the High Court and cited in particular the financial value of the claim (where the claimants were claiming unlimited damages in excess of £150,000) the complexity of the legal issues in the case, that the outcome of the claim was important to the public in general, the fairness of hearing and the availability of specialist judges. So far as the legal issues are concerned, FBD stated that the case raised "complex and novel issues concerning the interpretation and applicability of the Electronic Communications Code and its interrelationship with the planning law regime." So far as the importance to the public in general was concerned, FBD stated "the growth of the third generation of mobile phone services has resulted in large numbers of telecommunications base-stations/masts being erected in the UK over the last few years, with the growth expected to continue for the foreseeable future. As such, the decision in these proceedings has the potential to affect the cost and efficacy of mobile phone services to members of the public; other operators in the mobile phone industry - given that the court's decision on the complex and novel legal issues raised by this case would not only be of significance to our client but to the remaining four mobile phone operators and the wider industry as a whole; and planning and legal issues associated with the siting of mobile phone masts in communities throughout the UK - issues which have been and continue to be of significance to the public in general."
6. By letter dated 13 February 2004, H & Co replied agreeing to a transfer to the Technology and Construction Court in Birmingham. The action was then transferred, by consent, to this court.
7. In mid February 2004, both claimants and defendant served their Allocation Questionnaires. The defendant's Allocation Questionnaire estimated that its likely overall costs would be in the region of £233,000. That for the claimants showed costs to date of £1,500 and estimated total costs, including disbursements, at £27,394.
8. In April 2004, H & Co enquired of FBD how the defendant's costs were being funded. FBD replied to explain that the defendant was funding its case "in the normal way". FBD went on to say that, if successful, it would be seeking to recover its costs from the claimants.
9. On 19 March H & Co served the claimants' Part 18 request for further information. The defendant's reply to this was served on 8 April.
10. By order dated 7 April 2004 the court gave directions, on the basis of a paper application, as to disclosure and factual witness statements. The defendant provided disclosure on 26 May 2004. The claimants' disclosure was made on 4 June, 28 June, 2 July and 16 July 2004.
11. A case management conference took place on 6 August 2004. The court ordered exchange of witness statements and gave permission to each party to call one expert to give evidence as to whether the defendant's apparatus was capable of causing or contributing to adverse health effects upon persons living or working nearby. The court made orders for those experts to meet and for reports to be prepared. The matter was listed for trial, beginning 21 February 2005 with a time estimate of 3, or 4, days. At that hearing, the claimants indicated that they were considering whether or not to continue their claim for damages for personal injury and diminution in value of the property. They agreed to inform the defendant, by 20 August 2004, whether or not they intended to proceed with those claims. It appears that the claimants sold 57 London Road towards the end of August 2004. The defendant says it learned of this only very recently.
12. Shortly after the case management conference, H & Co confirmed that the claimants would not be proceeding with any claim for compensation. Mr Brown, counsel for the claimants, has confirmed that the only relief which the claimants now seek is pursuant to paragraph 17 of the Code namely relocation of the apparatus. The claimants maintain that claim even though they no longer have an interest in the property which they say was affected.
13. Witness statements were exchanged on 10 August 2004 and statements in rebuttal on 14 September 2004.
14. Following the hearing on 6 August, the defendant commissioned a report from Dr. Chadwick. The claimants instructed an expert, Dr Hyland, about two weeks ago.
15. On 5 October 2004 the claimants issued this application, seeking an order capping costs. No prior indication had been given by the claimants of their intention to seek such an order. Mr Brown, for the claimants, stated in submissions that the question of cost capping had not been considered by the claimants until August, when Mr Coppel, who represented the claimants at the case management conference that day, raised it with the claimants behind the scenes. However, there had been no mention of this at the case management conference.
16. The matter is listed for trial, with a time estimate of three days, beginning 21 February 2005. Prior to trial, the following need to be dealt with:

(a) expert evidence, including a without prejudice meeting between experts, preparation and exchange of reports and preparation by the experts of a joint statement setting out what matters are agreed and what are disagreed. The parties have agreed that these steps be completed by 17 December.

(b) there is an outstanding recent request by the claimants for further disclosure by the defendant, which the defendant will deal with.

(c) there is an outstanding request by the defendant for disclosure of documents relating to the transfer of 57 London Road.

17. That will leave only final preparation for trial.

The claimants' case

18. The claimants' application arises essentially because the defendant had indicated that it expected its total costs to amount to £233,000. Within the ambit of the statutory remedy in this case - namely that objection will be taken to the county court - and given the means of the claimants, such costs are wholly disproportionate to the subject matter of the claim.
19. The costs claimed to have been incurred and yet to be incurred by the defendant are extremely high. By its Allocation Questionnaire, the defendant estimated that it had already incurred £33,000 in costs. On the basis of a three day trial, the Allocation Questionnaire estimated that the defendant's overall costs were likely to be £233,000 plus estimated disbursements of £33,320, plus VAT on both of those sums. By the time that Allocation Questionnaire was served, the defendant had served a five page defence and a four page request for further information. The defendant served a further detailed schedule of costs, which split costs into actual costs incurred up until 26 January 2004 and estimated costs thereafter. By 26 January 2004 the defendant claimed to have spent over 90 hours on documents alone, split between a partner charging £475 per hour and an assistant solicitor (admitted for less than one year) charging £220 per hour. An additional 13.7 hours were shown for attendances on client and counsel. In short, the defendant claimed that a total of 104.2 hours had been spent within four weeks of the claim form being issued. The defendant estimated a further 594 hours to be spent by the solicitors, including 345 hours on documents. The claimants' case is that those figures are wholly out of proportion to the value of the claim, to the complexity of the claim and to the nature of the issues raised.
20. Further, the defendant's costs and time spent are totally disproportionate to the anticipated costs and time of the claimants. As at 13 February 2004, the claimants' costs to date were £1,500 and their estimated overall costs up to and including trial were £27,394, including disbursements. The defendant thus expects to spend over 8.5 times as much on legal fees as does the claimant. The claimants' estimate of costs prepared in connection with this application indicates that the total time, from commencement of the claim to end of trial, is estimated by H & Co to be just under 85 hours. The defendant's solicitors thus expect to spend over 8 times as many hours on the matter as do the claimants' solicitors.
21. The relief sought is, now, limited to an order for removal or moving of apparatus under Paragraph 17 (9) of the Code. Costs at the level indicated by the defendant are likely to stifle legitimate objection under the Code.
22. Where there is a prospect of costs becoming disproportionate, the proper approach is for the court to exercise control over costs in advance, rather than to approach the matter reactively by waiting until after the case is over and costs are being assessed.
23. The exercise of the court's discretion must be informed by the need to ensure that the claimants' right to institute and continue proceedings is practical and effective: Article 6 European Convention on Human Rights and Section 6 (3) (a) Human Rights Act 1998.
24. The disproportionality of the time and legal costs expected to be incurred is underscored by the relative ability to meet such expenses. Mr Petursson, the first claimant, has prepared a statement. He has considered whether the claimants would be able to survive a costs order against them of up to £266,000 plus VAT, plus their own costs. If the defendant's final costs were no more than £70,000 plus VAT (a figure which Mr Petursson puts forward) that sum, added to the claimants' own costs estimated at £30,000, would give a projected sum of approximately £118,000 inclusive of VAT. He says that he and his wife would be able to survive such a claim, albeit with considerable hardship. He goes on to give information as to the claimants' combined income, value of their house, outstanding mortgage balance and funds available to them. He states that if an adverse costs order of £266,000 plus VAT plus their own costs were made, that would bankrupt them.

The defendant's case

25. The defendant's case is that their costs are not disproportionate either in total or in their component parts. The claimants have been aware of the defendant's costs since as early as February 2004 and no objection has been taken before now. The defendant says it has spent £194,000 up to this stage. From its February 2004 estimate, that leaves £40,000 left for preparation for trial and attending the trial itself. Mr Humphreys for the defendant submitted that it was unlikely that that estimate would be substantially exceeded.
26. The defendant has incurred additional cost by reason of the claimants' failures to comply with the court's orders dated April and August 2004. The defendant has thus been put to additional expense, in excess of that envisaged when the costs estimate was prepared. The extra expense has been incurred because:

(a) the claimants failed to apply to the court timeously to arrange for permission to rely on expert evidence.

(b) the claimants were late in making disclosure, and even then did not initially make full disclosure.

(c) the claimants misrepresented the position with respect to the log of symptoms; that led to wasted time and cost in requiring, ultimately, a physical inspection of the computer log.

(d) though a minor point, the claimants were late in serving their updated schedule of loss.

(e) the claimants have delayed in the appointment of an expert.

It follows that the claimants have caused the defendant wasted cost.

27. This application has been made very late, indeed too late. The defendant has already incurred substantial cost. Mr Humphreys makes what he describes as a "firm submission" that it would have to be a wholly exceptional case where it was appropriate for a court to make a retrospective costs cap order.
28. The claimants knew in August, at the case management conference, of the court's jurisdiction to make an order of the type now sought. However, this was not raised at the case management conference. In contrast the claimants did flag up the possibility that they might discontinue parts of their claim.
29. It was reasonable for the defendant to have instructed London solicitors with expertise in the Code objection procedure, especially in circumstances where very few claims have reached court. The fees charged by FBD are in line with City firm rates. FBD have fielded a small team; there has not been duplication between fee earners. The size of FBD's team mirrors that of H & Co. The defendant has properly and reasonably incurred costs proportionate to the amount of money involved, to the importance of the case in both parties, to the complexity of issue and given the financial position of each. Apart from unexpected matters, the defendant does not expect to exceed substantially the time estimate given for preparation for trial and the trial itself.
30. Mr Humphreys submits that the real reason for the making of this application is the claimants' realisation of the weakness of their case.
31. The defendant's human rights must be taken into account. This is a case where the defendant obtained express planning permission to erect the mast and apparatus. They incurred the expenditure in doing so. The claimants' case is that they should, nevertheless, be required to remove the mast and apparatus. Mr Humphreys suggests that this situation may be unique in our planning system.

The Law

32. In R v Lord Chancellor ex parte Child Poverty Action Group (1999) 1 WLR 347 Dyson LJ held that the discretion to make pre-emptive orders, even in cases involving public interest challenges, should be exercised only in the most exceptional circumstances. In R v the Prime Minister ex parte CND [2002] EWHC 2712 Admin, Simon Brown LJ, referring to the decision of Dyson J in CPAG and in R v London Borough of Hammersmith and Fulham, ex parte CPRE London Branch, said "Both those decisions emphasised that the discretion to make [a pre-emptive costs capping order] even in cases involving public interest challenges should be exercised only in the most exceptional circumstances."
33. The scope of cases in which the court has been prepared to consider making a pre-emptive costs capping order has widened. For example, in Smart v East Cheshire NHS Trust dated 26 November 2003, (a clinical negligence claim) Gage J concluded that the authorities supported the proposition that the court had jurisdiction to make pre-emptive orders for costs, whilst stating that such orders should only be made in exceptional circumstances. AB v Leeds Teaching Hospitals NHS Trust [2003] EWHC 1034 was a case concerning claims arising out of organ retention; a group litigation order was made. In that case Gage J concluded that the court had power to make a costs cap order. He said that he was fortified by the encouragement provided by the Court of Appeal in Solutia UK Ltd v Griffiths [2001] EWCA Civ 736 to conclude that in appropriate cases, of which group litigation orders are a prime example, the court should make a costs cap order. Gage J noted that, in the administrative field, it had been held that there should be exceptional circumstances before a pre-emptive order for costs was made - and he referred to ex parte CND. He said, however, that he saw no reason for such a requirement where a costs cap order was sought in a group litigation order particularly where there was a risk that costs might become disproportionate and excessive. In Adam Musa King v Telegraph Group Ltd [2004] EWCA Civ 613 the Court of Appeal approved use of costs capping in a defamation case.
34. In Leigh v Michelin Tyre Plc [2003] EWCA Civ 1766 Dyson LJ commented that there was "much to be said for costs budgeting and the capping of costs". He referred to the decision of Gage J in AB v Leeds Teaching Hospital NHS Trust. He said "…. whatever the scope of the jurisdiction to make such orders, it is quite different from the jurisdiction that is exercised retrospectively at the stage of costs assessment and when the court is required to decide the amount of reasonable and proportionate costs..... We recognise that the use of CPR 43 PD paragraph 6.6 to control costs by taking cost estimates into account at the assessment stage is not the most effective way of controlling the cost of litigation. It seems to us that the prospective fixing of costs budgets is likely to achieve that objective far more effectively."
35. Mr Humphreys has shown me a paper delivered in April 2004 by Carnwath LJ (Journal of Environmental Law, volume 16 issue 3) in which he discussed use of pre-emptive costs orders in the context of public interest cases. Carnwath LJ stated "individual litigants and NGOs need to know in advance what their costs liability is likely to be. ... It is the certainty of liability that is crucial. ... None of these developing principles is much use to an applicant unless he know in advance to what extent the court's discretion is likely to be applied in his favour."
36. These authorities indicate, as indeed is accepted by the parties, that the court has jurisdiction to make an order of the type requested by the claimants in this matter. They also demonstrate that costs budgeting and the capping of costs are desirable. The court should conduct cases in such a way as to keep costs within the bounds of the proportionate in accordance with the overriding objective. There has been some guidance as to the matters which the court should take into account when dealing with such an application. Indirectly, some decisions offer guidance as to the stage at which a costs capping exercise should be undertaken and whether it is appropriate for the court to make a retrospective order.
37. In Smart, Gage J said "It must be remembered that the circumstances in each case were that unless the Court was prepared to make a pre-emptive order of "no order for costs" or, as in ex parte CND, a pre-emptive order limiting the potential liability for costs to £25,000, the claimants would not be able to pursue their claims, claims which were said to be in the public interest. In my judgment these cases whilst of assistance are not determinative of the way the court's discretion should be exercised when dealing with costs cap applications ..The court should only consider making a costs cap order in such cases (as the instant case) where the applicant shows by evidence that there is a real and substantial risk that without such an order, costs would be disproportionately or unreasonably incurred; and that this risk may not be managed by conventional case management and a detailed assessment of costs after a trial; and it is just to make such an order. It seems to me that it is unnecessary to ascribe to such a test the general heading of exceptional circumstances. I would expect that in the run of ordinary actions it will be rare for this test to be satisfied but it is impossible to predict all the circumstances in which it may be said to arise."
38. In Solutia Sir Christopher Staughton referred to the power given by Section 65 Arbitration Act 1996 to limit costs. That Act provides that this exercise must be done at an early stage so that parties do not find, ex post facto, that they have spent more than the limit.
39. In Musa King, it was suggested that a costs capping order, "if made at an appropriate early stage of the proceedings and effectively policed thereafter, would be the most effective way of exercising ... control." Brooke LJ referred to the costs in the Solutia case and said " the fact that the court was uneasy about the sheer size of [the costs] judged retrospectively, led two of its members to draw attention to the desirability of a judge being able to control legal expenditure on a piece of litigation prospectively. ... This is a power which must be exercised, if at all, at an early stage, so that a party does not find that it has spent more than the limit if a costs cap was directed later on." Referring to the judgments of Gage J in AB v Leeds Teaching Hospital NHS Trust and Hallett J in Various Ledward claimants v Kent & Medway Health Authority and East Kent Hospitals NHS Trust [2003] EWHC 2551, Brooke LJ said "In my judgment Gage J and Hallett J were correct to consider that the court possessed the power to make a costs capping order in an appropriate case ... Needless to say, in deciding what order to make the court should take the principles set out in CPR 44.3 (which govern the retrospective assessment of costs) as an important point of reference." Brooke LJ later said "I have ... no doubt, for the reasons given by Sir Christopher Staughton in Solutia, that it would be very much better for the court to exercise control over costs in advance, rather than to wait reactively until after the case is over and the costs are being assessed." He went on to make reference to Section 65 Arbitration Act 1996 which makes it clear that, while the tribunal may direct that the recoverable costs of the arbitration be limited to a specified amount, any such direction must be done sufficiently in advance of the incurring of costs to which it relates or the taking of any steps in the proceedings which may be affected by it. Brooke LJ said "There are three main weapons available to a party who is concerned about extravagant conduct by the other side at the risk of such extravagance. The first is a prospective costs capping order of the type I have discussed in this judgment. The second is a retrospective assessment of costs conducted toughly in accordance with CPR principles. The third is a wasted costs order ... In my judgment recourse to the first of these weapons should be the court's first response when a concern is raised by defendants of the type to which this part of this judgment is addressed. The service of an over-heavy estimate costs with the response to the Allocation Questionnaire may well trigger off the need for such a step to be taken in future."

Should the court make a retrospective costs cap order?

40. In Smart and Ledward the court ordered a cap which was both retrospective and prospective. In Smart, liability and causation had been compromised. The settlement was approved in September 2003 at which time Morland J gave directions for trial of quantum issues. By the time the matter came before Morland J, the defendant had made an application for a costs cap order. In Ledward the parties agreed the need for a costs cap and that the cap should be retrospective. That retrospectivity, however, covered only the period from the date of the application for the cap until the date of the hearing of that application. It is clear that the element of retrospectivity in those cases was limited, covering either a period when liability had been conceded and before work on liability began, or only the period from the date of making the application until the date on which the application was heard.
41. In my judgment, on a proper analysis, a costs cap should normally be prospective not retrospective.
42. Further, the authorities suggest that the court expects an order capping costs to be made at an early stage. A party should know in advance if its costs are to be capped so that it can tailor its case accordingly.
43. It would be unfair for the court to order parties to comply with directions and then to impose a retrospective cap. In this case, it appears that the defendant has complied with court directions, and indeed has probably spent more time on this action than might otherwise be the case as a result of the claimants' failures to comply with orders. Both sides have the right to a fair hearing. To impose a retrospective limit on costs in this case would, in my judgment, amount to a breach of the defendant's right to a fair hearing. I accept Mr Humphreys' submission that it would be a wholly exceptional case where it was appropriate to order a cap retrospectively. This is not such an exceptional case.
44. The defendant claims to have incurred costs of £194,000 to date. It estimates future costs, assuming nothing unexpected, of about £40,000. To impose a limit on the defendant's profit costs for the whole action of a sum as low as £20,000, as the claimants seek, would be unrealistic. In making his submissions, Mr Brown gave a strong hint that he accepted that that figure might be considered by the court to be too low. The claimants have put forward a figure of about £70,000. A difficulty with that higher sum is that the claimants have not calculated it by reference to what the defendant is likely to need to spend on defending the action. It is based on the claimants' costs, though with adjustments to reflect the fact that the defendant has instructed a London firm.
45. I am not persuaded that it would be appropriate to cap the defendant's costs during the period 5 to 28 October 2004 (ie from issue to hearing of application), but even if it were, the available evidence does not enable me to make any assessment of the costs incurred during that period.
46. I reject the claimants' application for a retrospective costs order.

Should the court make a prospective costs cap order?

47. I next consider whether the court should make an order capping costs from now up to and including trial.
48. In exercising its discretion, the court should take all relevant matters into account. This includes the claimants' conduct. They failed to disclose the full log of symptoms they have kept, and indeed appear to have given the defendant incorrect information in relation to that log. Some, though not great, weight attaches to that matter. The claimants delayed in instructing an expert on the question of risk to health. The claimants delayed in bringing this application, though the possibility of such an application had been drawn to their attention in August. That delay has gone against them in regard to their application for retrospective cap. It also has some relevance when considering a prospective cap.
49. There is a great difference between the figures quoted by the claimants and those quoted by the defendant. It is understandable that the claimants feel intimidated by the defendant's costs estimate and anxious about their exposure to costs. However, H & Co accepted FBD's description of the action as one which involved complex and novel legal issues. The claimants initially claimed damages in excess of £150,000, and in June 2004 they indicated that that sum was rising. It is not surprising that a defendant faced with a substantial claim involving the issues in this case should instruct solicitors with expertise in the field and devote time to it. I understand the claimants' concern at the amount of time which the defendant claims has been and will be incurred: a period some 8 times that of the claimants is a matter of surprise.
50. However, in my judgment this is not an exceptional case, if that be the appropriate test. Alternatively, it is not a case where, without a costs cap, the risk that the future costs which will be incurred in this case will be disproportionately or unreasonably incurred or cannot be managed by conventional case management and a detailed assessment of costs after trial.
51. The appropriate time to consider a costs cap is at the early stage of an action when the parties and the court can together plan the steps needed to bring the matter to trial, the costs implications of those steps and whether a cap is appropriate. In this case, that stage has long since passed.
52. I have set out earlier the minimum steps which the defendant will have to undertake in order to prepare for and attend the trial of this matter. It appears that FBD have deployed a similar team, of partner and assistant solicitor, to that deployed by H & Co. The defendant has indicated that it is unlikely that it will exceed the estimate it has given of £40,000 for the remaining work. The claimants take issue with the total time and hourly rates which the defendant has indicated it will claim for the whole action, if successful, but they have not looked in detail at future costs ie between now and trial. The claimants have not attacked the defendant's costs in such a way as to enable me to conclude, even if I had thought it appropriate to do so, that future costs should be capped.
53. None of this should be taken as an indication that this court approves the defendant's hourly rates, deployment of fee earners or estimate of time spent. Those are matters which a costs judge is equipped to deal with at the detailed assessment stage, and which in this case, should be considered by the costs judge, should the defendant be in a position where it is entitled to have some or all of its costs paid. The costs judge will be able to consider proportionality and whether costs have been reasonably incurred.
54. In all the circumstances, I conclude that it would not be appropriate to cap the defendant's future costs. The claimants' application therefore fails.