Underspend, not good reason to depart from budget, unless phase substantially incomplete

The Costs Budget remains essential to costs recovery and monitoring continues to play an all-important role. The courts have previously ruled that an underspend of any phase constitutes a good reason to depart from the budget, however during a recent detailed assessment of costs in Utting v City College Norwich [2020] EWHC B20 (Costs) Master Brown adopted a different approach, agreeing with DJ Lumb in the case of Chapman v Norfolk & Norwich University Hospitals NHSFT [2020], as he commented:

“if an underspend were to be a good reason for departing from a budget it would be liable to substantially undermine the effectiveness of cost budgeting. As the Judge effectively observed, solicitors who had acted efficiently and kept costs within budget would find their costs subject to detailed assessment, whereas less efficient solicitors who exceeded the budget would, absent any other “good reason”, receive the budgeted sum and avoid detailed assessment.”

Consequently, the opportunity to secure a full recovery of budgeted costs (i.e. those estimated costs that have been incurred), is increased if the costs incurred fall within the budget.

Master Brown largely sided with DJ Lumb’s approach in the case of Chapman when he determined that underspending in a phase was not a good reason to depart from the budget. A budgeted phase coming up short is limited to the sum spent because of the indemnity principle, but that does not open it up to scrutiny more generally in the absence of further “good reason”.

Counsel for the Defendant in Utting submitted that if the amount of a phase does not match the budgeted sum then the costs of that phase are subject to detailed assessment including where there has been an underspend. The claim had settled some 20 days before trial following an unsuccessful joint settlement meeting. The bill claimed costs slightly lower than those budgeted but Master Brown deemed all phases to be complete, save for the Trial Preparation phase and Trial phase. For the phases regarded as complete he opined:

the fact that a party has spent less than its budget for a phase does not mean there is therefore in fact a good or appropriate reason for any further reduction and I was not satisfied that there was any additional “good reason” for any such reduction.

The Defendant was however given permission to argue “good reason” for departure in the Trial Preparation and Trial phases on the grounds that these phases had not substantially been completed and described this as:

“a clear and obvious distinction between an ‘underspend’ and the situation that arose in respect to the Trial and Trial Preparation phases where plainly there was, at the very least, substantial non-completion

This was the key difference to the approach taken by DJ Lumb in Chapman. The thrust of the ruling in Chapman seemed to be that once a budget was set, a party could spend a budgeted phase however it chose.

In Utting the Defendant sought to rely on the 2019 ruling in Barts Health NHS Trust v Salmon where not spending the totality of the budgeted figure for a particular phase, by virtue of the indemnity principle itself, did constitute “good reason”. The point of settlement of this case was pre-agreement of joint expert meeting agendas and before any JSM and so unsurprisingly the sums claimed in the Expert and ADR phases were less than the sum which had been budgeted for. Master Brown made reference to the fact he sat as an assessor in Barts Health NHS Trust v Salmon but justified taking a different tack in Utting on the basis that in Barts Health  “the assumptions upon which the budget had been prepared were not fulfilled”.

The approach taken in Barts health essentially incentivised a receiving party to overspend to avoid detailed assessment. DJ Lumb recognised this in Chapman and highlighted how it was problematic. Although Master Brown in Utting agreed with DJ Lumb as to the overall effect of the ruling in Barts Health, Master Brown went on to comment:

“There is however nothing per se unjust if a receiving party were to receive a sum by way of costs which is less than the budgeted sum. This is, of course, to be contrasted with the situation where a phase is not substantially completed, where it would, to my mind, be unjust for a receiving party to receive the full amount of a budgeted sum in circumstances where only a modest amount of the expected work had been done.”

As none of the cases referred to above are binding there remains an absence of clarity surrounding “good reason” to depart from a budget when the receiving party has underspent. The decision in Utting does however seem to have refined the approach in Chapman, causing Barts Health to appear to be more of an anomaly, further highlighting the importance of budgets and budget monitoring.

Anna Lockyer is an Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact her at anna.lockyer@clarionsolicitors.com and 0113 288 5619, or the Clarion Costs Team on 0113 246 0622

Filing a Costs Budget Late: High Court Decisions in 2020

Back in January of this year Lionel Persey QC, sitting as a Deputy Judge of the High Court, took a fairly lenient approach towards the defaulting party in the case of Manchester Shipping Ltd v Balfour Shipping Limited & Anor [2020] EWHC 164 (Comm) when he granted relief from sanctions to Defendants who filed a costs budget 13 days late.

The Judge took the stance that “The breach, although serious in terms of lateness, did not prevent the litigation from being conducted efficiently or at proportionate cost. No inconvenience was caused to the court or to other court users”. This ruling seemed to mark a shift from the strict application of CPR 3.14 which provides that: unless the court otherwise orders, any party which fails to file a budget despite being required to do so will be treated as having filed a budget comprising only the applicable court fees.

More recently however, His Honour Judge Simon Barker QC in Heathfield International LLC v (1) Axiom Stone (London) Ltd & (2) Medecall Limited [2020] EWHC 1075 (Ch) determined that the defaulting party, in this case the second Defendant, was to be treated as having filed a budget comprising only the applicable court fees.

The surrounding circumstances were that the defaulting party failed to file a Budget 21 days before the originally listed CCMC. This first CCMC was vacated 4 days before it was due to take place as a result of the parties making applications in respect of security for costs. The second Defendant attempted to excuse the fact it had not filed a budget on the basis that the parties had agreed for the CCMC to be relisted. The timing of this agreement was ambiguous and could not be substantiated. The second Defendant then failed to file and serve its budget 21 days before the relisted CCMC and did so late by at least 5 days. Furthermore, they did not file and serve a Precedent R or engage in budget discussions. Relief from sanctions was subsequently applied for 2 days before the re-listed CCMC.

Counsel for the second Defendant attempted to use Manchester Shipping in support but it was found to be incomparable on the facts.

HHJ Barker QC commented on the fact that the first Defendant’s response to the Claimant’s claim had been the cause of the second Defendant on a secondary alternative basis “but that does not entitle D2 to take a more relaxed or casual approach to participation as a party in this litigation”.

The sums of money in issue, at approximately £260k plus £100k for interest and statutory penalty, and the type of litigation as a claim for unpaid invoices were also referred to in the context that “costs may easily become disproportionate” thus “costs control and costs budgeting are all the more important”.

Reference was also made to the court’s discretion under CPR 3.14 being “entirely open”.

A form of hybrid relief was contemplated but ultimately it was decided that the defaulting party should be treated as having filed a budget comprising of court fees only.

Anna Lockyer is an Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact her at anna.lockyer@clarionsolicitors.com and 0113 288 5619, or the Clarion Costs Team on 0113 246 0622

Costs Budgeting following the 109th CPR update

The 109th update has clarified what falls within the “incurred” costs, and made some changes to the guidance regarding which phase costs fall into. Watch the video for more detail and some tips on how to manage the period between the drafting of the budget and the date of the costs management hearing.

Anna Lockyer is an Associate and Costs Lawyer in the Clarion Costs Department. You can contact her by email at Anna.Lockyer@Clarionsolicitors.com, or by phone on 0113 288 5619.

 

Appellant victorious in arguing indemnity costs

The Court of Appeal determined that poor conduct and a failure to accept an earlier Part 36 offer were grounds on which to award indemnity costs in the case of Lejonvarn v Burgess & Anor [2020] EWCA Civ 114. 

The appellant had provided some gratuitous help to her former neighbours in re-designing the landscape of their garden. They had a falling out and the respondent neighbours subsequently brought proceedings against the appellant on the basis that she had been negligent and owed them a duty of care. Three weeks after proceedings had commenced, the appellant made a Part 36 offer in the sum of £25,000, but this was not accepted. Although at trial it was found that the appellant had been negligent, the respondents had failed on the substantive issues and the £25,000 offer was not beaten. The respondents lodged an appeal which caused their costs to spiral as they pursued their case against the appellant. The respondents were unsuccessful at the appeal and the appellant was awarded costs on the standard basis.

The appellant then proceeded to challenge the standard costs award decision and appealed on the basis that this was incorrectly ordered and indemnity basis costs should instead have been applied. At the appeal hearing Coulson LJ considered the background and undertook a thorough review of authorities relating to indemnity costs, opining that:

No later than one month after the handing down of the judgment by the Court of Appeal…the respondents, having had time to consider the implications of the Court of Appeal judgment, should have realised that the remaining claims were so speculative/weak that they were very likely to fail, and should not be pursued any further.” 

Coulson LJ further explored the respondents’ unreasonable pursuit of the case to trial, considering it to be: 

An irrational desire for punishment unlinked to the merits of the claims” and “precisely the sort of conduct which the court is likely to conclude is out of the norm”.

It was determined overall that the first appeal trial judge had incorrectly applied the test to determine indemnity costs and indemnity costs were in fact appropriate in these circumstances from a specific point in time. 

The judgment in this case may be of assistance should you need to consider conduct and indemnity costs in a situation where a party beats their own Part 36 offer. Bear in mind however that it is nuanced to the specific facts of the case and the CPR is clear that entitlement to indemnity costs in these circumstances is not automatic.  

The outcome of this case was also interesting from a costs management angle as Coulson LJ found that costs assessed on an indemnity basis are not constrained by an approved budget. Please see my blog for further detail.

Anna Lockyer is an Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact her at anna.lockyer@clarionsolicitors.com and 0113 288 5619, or the Clarion Costs Team on 0113 246 0622

Court of Appeal finds approved costs budget irrelevant when indemnity basis awarded

The Court of Appeal decision in Lejonvarn v Burgess & Anor [2020] EWCA Civ 114 has determined that an approved costs budget is irrelevant where indemnity costs are ordered.

The appellant’s case was that whilst there was an approved costs budget of £415,000, her actual costs were £724,265.63. To allow this would effectively reward her for failing to keep within the budget. Interestingly the budget was only partially costs managed and therefore was subject to change in certain phases in any event.

Lord Justice Coulson acknowledged The figure produced by an approved cost budget mechanism (CPR r.3.12-r.3.18) is a different thing to the final assessment of costs following the trial. The former is prospective; the latter is retrospective. True it is that, in many cases, the approved costs budget will be the appropriate starting point for the final costs assessment. But that does not detract from the underlying proposition that they are different figures produced by different considerations with different purposes” and in any event “If there is an order for indemnity costs, then prima facie any approved budget becomes irrelevant.

Although Lord Justice Coulson was not persuaded that there was an approved budget in this particular case he made it clear that costs assessed on an indemnity basis are not constrained by an approved costs budget. He even went so far as to say that his obiter comments in the cases of Elvanite and Bank of Ireland v Watts which suggested the contrary, should be disregarded.

Anna Lockyer is an Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact her at anna.lockyer@clarionsolicitors.com and 0113 288 5619, or the Clarion Costs Team on 0113 246 0622