The Claimant in Masten v London Britannia Hotels Ltd obtained a default costs certificate in the sum of £363,695.25 when the Defendant missed an agreed date to serve points of dispute. Although the points of dispute should have been served by 28 February 2020, the default costs certificate was not issued until 10 June 2020 and the application to set aside was filed on 26 August 2020. The reasons for not serving points of dispute were essentially a combination of overwork, administrative error and the effects of the pandemic.
It was held that an application to set aside a default costs certificate must be made under CPR rule 47.12 rather than as an application for relief from sanctions; the criteria for relief from sanctions can apply, but the extent of that is open to argument.
It was accepted that the application had been made promptly in the circumstances of the claim and that there were good reasons for the detailed assessment to continue; in particular the claim was subject to costs management and the Claimant’s budget had been exceeded by at least £56,000.
The Master nevertheless went on to reject the application upon application of the Denton criteria. The default was found to be serious and significant and the Defendant offered no good reason for it. The Master found that setting aside the default costs certificate would cause inevitable prejudice to the Claimant.
It was also held that the failure to file points of dispute was negligent and the loss of opportunity to challenge the bill was the consequence of that negligence.
This article was featured in our January 2021 newsletter, see the full newsletter here.
Robert Patterson is an Associate in our Costs and Litigation Funding team. If you have any questions please contact him on 0113 3363337 or at robert.patterson@clarionsolicitors.com.
