Key Issues in Hope Capital Limited v Alexander Reece Thomson: Costs Post-Judgment and Permission to Appeal

Citation: [2023] EWHC 3157 (KB)
Judgment on

Introduction

In the High Court of Justice decision concerning Hope Capital Limited & Anor v Alexander Reece Thomson LLP, various substantive legal topics were explored, predominantly focusing on costs related issues post-judgment, and the principles guiding the decision whether to grant permission to appeal. This article dissects the key elements arising from the judgment by Mr Justice Constable, providing insights into the legal principles applied and their relevance to the specific facts of the case.

Key Facts

The core issue revolved around the costs incurred following the court’s dismissal of the Claimants’ case against the Defendant for admitted negligence which resulted in no actionable loss. Two principal debates unfolded: whether a proportional reduction in the Defendant’s costs should apply due to Claimants’ partial success on breach, and the basis upon which the Claimants should pay the Defendant’s costs. The Claimants conceded to pay the Defendant’s costs post expiry of the first Part 36 Offer but sought to mitigate these costs due to acknowledged negligence and partial success on certain issues.

Furthermore, discussions ensued on whether costs should be assessed on a standard or indemnity basis, and whether the court should consider the Defendant’s costs budgets. The Defendant made several Part 36 and Calderbank Offers throughout the pre-trail and trial proceedings, influencing the debates over costs.

Costs Assessment

The judgment reiterates principles from “CPR Part 44” and precedents like “Triumph Controls – UK Ltd v Primus International Holding Co” and “F&C Investments (Holdings) Ltd v Barthelemy” to affirm that a winning party is generally entitled to their assessed costs unless conduct deems otherwise. The judgment considered if the Defendant’s failure to admit negligence earlier in proceedings warranted a departure from this principle, ultimately concluding it did not, as the issue of breach was not significantly impactful on the trial’s conduct or costs.

Standard versus Indemnity Costs Basis

Key principles emerged from the “Excelsior Commercial and Industrial Holdings Ltd v Salisbury Hammer Aspden and Johnson,” where a costs order on an indemnity basis is deemed appropriate only if the case is taken ‘out of the norm’ due to a party’s conduct or other circumstances. However, the pursuit of a weak claim alone does not justify an indemnity order unless the claim is ‘hopeless’ per “Elvanite Full Circle Ltd v Amec Earth and Environmental (UK) Ltd.” The judgment drew upon these principles and further cases, including “ARCADIA GROUP BRANDS LTD & ORS v VISA INC & ORS,” to consider the Defendant’s arguments for indemnity costs, ultimately finding the Claimants’ approach to the litigation within a reasonable range and hence not ‘out of the norm.‘

Permission to Appeal

In denying permission to appeal, the judgment adopt principles outlined in “Charles B Lawrence v Fen Tigers Ltd” by the Court of Appeal, considering whether the law was incorrectly applied or argued, and assessing whether the appeal has a reasonable chance of success. Consent to appeal was not granted, as the judge found the original judgment followed the correct legal principles and reasonable application to the case’s facts.

Outcomes

Mr Justice Constable held that there should be no proportional reduction in the Defendant’s costs pre-offer and that these costs should be assessed on a standard basis. This outcome reflects an application of legal principles that, despite the Defendant’s late admission of negligence, the overall success in defending the claim did not warrant a deviation from the general rule of cost.

In terms of indemnity costs, the Claimants’ refusal to accept various offers and continuation in promoting their claim did not take the case ‘out of the norm’, thus the judgment rejected the imposition of indemnity costs.

Costs Applications Costs

The Defendant’s application for disclosure regarding Ms Cowan’s medical evidence was acknowledged as justified although it did not proceed to a full hearing. The court ordered the costs of this application to be in the case. Furthermore, the Claimants were ordered to pay the costs of the Defendant’s application from 14 November 2023 due to insufficient timely engagement with the Defendant’s enquiries pre-hearing.

Finally, permission to appeal the main judgment was denied, as the judge saw no reasonable argument that the legal principles were incorrectly applied or that the factual conclusions reached were in error.

Conclusion

In the case of Hope Capital Limited & Anor v Alexander Reece Thomson LLP, the legal principles revolved around the proper assessment of costs and the circumstances under which an indemnity basis for costs is appropriate. By denying indemnity costs and permission to appeal, Mr Justice Constable underscored the importance of reasonable and normative conduct in litigation, applying established legal principles to the factual matrix of the case in question. The judgment serves as a nuanced reminder of the principles guiding cost assessments and appeals in the UK legal system.

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