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A decision, a long time in coming, proves to be of value

Long v Value Properties Ltd & Anor [2014] EWHC 2981 (Ch) (30 September 2014)

The consequences of Mitchell rumble on through the Courts, with this case being another example of the Courts seeking to reverse the Mitchell juggernaut.

This was an appeal from Costs Master Rowley, SCCO, and his decision to refuse relief from sanctions. In the light of Mitchell, Master Rowley ‘reached the conclusion he did reluctantly’ but concluded that Mitchell precluded any other approach. How many other reluctant decisions were reached by Courts up and down the country before the remedy of Denton?

Thankfully, this appeal, however long it took to come before an appeal court, proved to be of value.

The background facts are briefly stated in the Judgement. The issues were resolved by a Consent Order dated 15 August 2013. Detailed assessment proceedings were commenced on 17 October, two months into the three month period for doing so. All would have been well but for the Claimant’s solicitor’s inadvertent failure to serve details of additional liabilities at the same time. They were responsive to a request to extend time for Points of Dispute, only to find that issue was taken in the Points over their non-compliance. Thus the Defendant argued that the success fee for solicitors and counsel was not recoverable. At £48,462 this must have seemed like a significant windfall to the Defendant.

The relevant information was served with an apology approximately a week later, while pointing out that a call, e-mail or fax would have resolved this. It was said that the Defendant had not been prejudiced (but for preparing Points without the information), and extra time was offered for amending the Points. No agreement was reached and the application for relief followed, this coming before Master Rowley on 13 January 2014.

This appeal raised the following questions

• Whether a breach of the CPR had occurred here – did the failure to serve the additional information with the Bill amount to a breach? The appeal Judge decided that although unclear and based on implication the rule drafters must have intended the details to be served with the Bill.
• If so, what is the applicable sanction, if any, for that breach – a total disallowance of all additional liabilities or just for the period where the details were not provided? The appeal judge decided that the latter less draconian result was the correct one. The Master’s decision to disallow all additional liabilities was incorrect.
• Whether relief from any such sanction should be granted. In case he was incorrect the appeal Judge decided to grant relief. Interestingly he said he would have done so regardless of Mitchell.

As might be expected technical argument had ensued on all these questions. Without becoming mired in the technicalities leading to the decision there are few simple pointers to draw from this case:

1. Make sure the detailed assessment bundle includes all relevant details, including additional liabilities. Costs are hard enough to earn without giving away money.
2. If there has been a default put it right promptly.
3. Seek relief without delay
4. Opportunism is not favoured in these days, so if faced with reasonable requests, agree.

What of any cases still suffering from adverse Mitchell influenced decisions? It might be worth considering a belated appeal, subject to the merits of each case, including proportionality.

A long time may have elapsed but is there value in revisiting unfavourable decisions?

Consult with your costs experts.  PIC are happy to provide advice and to seek a practical way forward.