John Duncan Grierson v Robert James Grierson
[2024] EWHC 3048 (Ch)
Edel Marie Magee & Ors v John Wade Crocker & Ors
19 September 2024
[2024] EWHC 2353 (Ch)
High Court
A legal battle over costs followed a successful lawsuit. One side had to amend their case late, affecting the cost decision. Serious accusations of dishonesty were made but didn't result in the highest possible penalties. The judge decided who had to pay what and ordered some money upfront to settle things partially.
Key Facts
- •The case involved a dispute between Fitzpatrick Trustees and Mr. Crocker concerning costs arising from a trial.
- •The trial involved a claim for declaratory relief and injunctive relief.
- •The Fitzpatrick Trustees' initial claim relied on assignment, later amending to include novation.
- •Mr. Crocker brought a Part 20 claim against Mr. Fitzpatrick, alleging deceit.
- •The court had previously ruled on the amendment application and the main claim.
Legal Principles
The unsuccessful party typically pays costs, but the court may make a different order (CPR 44.2(2)).
CPR 44.2(2)
The court considers various factors, including the conduct of the parties, when deciding on costs (CPR 44.2(4) and (5)).
CPR 44.2(4) and (5)
In cases of late amendments substantially altering the case, the defendant may be entitled to costs up to the amendment date (Beoco Ltd v Alfa Laval Co. Ltd).
Beoco Ltd v Alfa Laval Co. Ltd [1995] QB 137
Indemnity costs require conduct outside the ordinary and reasonable conduct of proceedings (Excelsior Commercial and Industrial Holdings Ltd, Esure Services Ltd v Quarcoo, Digicel (St Lucia) Ltd v Cable & Wireless plc).
Excelsior Commercial and Industrial Holdings Ltd [2002] EWCA Civ 879; Esure Services Ltd v Quarcoo [2009] EWCA Civ 595; Digicel (St Lucia) Ltd v Cable & Wireless plc [2010] 5 Costs LR 709
Unsuccessful dishonesty claims often lead to indemnity costs orders, but there's no presumption (Thakkar v Mican [2024] EWCA Civ 552).
Thakkar v Mican [2024] EWCA Civ 552
CPR 44.2(8) requires a payment on account of costs unless there's good reason not to.
CPR 44.2(8)
When determining a 'reasonable sum' for a payment on account, the court considers factors like agreed or approved budgets (Thomas Pink Ltd v Victoria’s Secret UK Ltd [2015] 3 Costs LR 43; Lifestyle Equities CV v Royal County of Berkshire Polo Club Ltd [2024] Costs LR).
Thomas Pink Ltd v Victoria’s Secret UK Ltd [2015] 3 Costs LR 43; Lifestyle Equities CV v Royal County of Berkshire Polo Club Ltd [2024] Costs LR
Outcomes
Fitzpatrick Trustees to pay Crocker's costs of the Amendment Application.
The amendment was made late, but Crocker's opposition wasn't unreasonable given the circumstances.
Crocker to pay 90% of Fitzpatrick Trustees' costs of the Claim and Part 20 Counterclaim.
Fitzpatrick Trustees were largely successful, but a discount reflects their late amendment and unsuccessful arguments on assignment and promissory estoppel.
Crocker to pay Fitzpatrick's costs of the Part 20 Claim on the standard basis.
While serious allegations of dishonesty were made, the court didn't find Crocker intentionally dishonest; other factors also weighed against indemnity costs.
Crocker to pay payments on account of £400,000 to the Fitzpatrick Trustees and £385,723.14 to Fitzpatrick.
Based on a percentage of their incurred and budgeted costs, adjusted to reflect the final cost orders.