[2025] EWHC 2738 (Ch)

This judgment is further to my 15 September 2025 judgment, neutral citation number [2025] EWHC 2343 (Ch) (the “Judgment”), following the 25 July 2025 hearing before me. I use the same abbreviations as in the Judgment. This judgment deals with D1 and D2’s costs of the Application brought by D3, specifically D1 and D2’s contention in consequential submissions that C should pay their costs of the Application, and that I should summarily assess those costs. C’s submission is that there should be no order as to costs.

I have carefully taken into account the written submissions on costs of C on the one hand and D1 and D2 on the other, and am grateful for them. No-one has suggested that an oral hearing is required to deal with costs. I consider that it would not be appropriate to have such a hearing, given the full written submissions I have received and that neither party has requested such a hearing.

In the Judgment, I concluded that I should strike-out C’s claims against D3 unless C applied within 28 days for permission to amend its Particulars and permission was granted to remedy the defects. Originally D3 had contended that the Particulars did not, and could not be improved to, disclose reasonable grounds for bringing the claim or a real prospect of success. However, following service of C’s skeleton, which D3 contended set out claims that went beyond those set out in C’s Particulars of Claim, D3’s position at the hearing before me was that I should grant a conditional strike-out of the type referred to in the first sentence of this paragraph, and I ruled that was correct.

Part of C’s claim asserted that C had not been paid its “Owner’s Agent Fees” under the Promotion Agreement for the period between September 2017 and 30 August 2018: Judgment [15], [32(8)(a)]. C did not specify in the relevant paragraph of the Particulars of Claim- [38]- who C contended was liable to pay the Owner’s Agent Fees out of D1 and D2 on one hand or D3 on the other.

D3 contended in its Defence that it was not liable to pay any Owner’s Agent Fees, on- among other things- the basis that the relevant clause of the Promotion Agreement (cl.3.1(e)) only contained a promise by D3 to reimburse D1 and D2 for Owner’s Agent costs that D1 and D2 had borne, not a promise by D3 to C to pay such costs: Judgment [35(1)]. D3 also claimed contribution against D1 and D2, and in the course of D1 and D2’s defence to D3’s contribution notice D1 and D2 contended that any payment of Owner’s Agent fees was an obligation on D3 rather than D1 and D2. Therefore, D1 and D2 set up a competing construction of cl.3.1(e) to that of D3: Judgment [41(2)].

Turning against that backdrop to D1 and D2’s role in the Application, D1 and D2 stated in their short skeleton that the Application was primarily a matter between C and D3. D1 and D2 did however resist any suggestion that the Court should reach a determination at the hearing on the construction of cl.3.1(e) as part of the Application, contending that this should only be ruled on at trial after hearing live evidence and reading the contemporaneous documents: [12] of D1 and D2’s 18 July 2025 skeleton for the 25 July 2025 hearing.

Therefore, D1 and D2 were seeking to protect themselves against the outcome of D3’s Application, not resisting C’s position on the Application.

Following receipt of C’s skeleton of the same day, D3’s solicitors wrote to C’s solicitors on 21 July 2025 making an open offer to adjourn the Application pending service of a draft amended particulars by C, providing that C paid D3’s costs thrown away by reason of the adjournment. By letter of 22 July 2025, C rejected that offer through its solicitors.

Also on 22 July, D1 and D2 wrote through their solicitors to the parties, agreeing to the consent order put forward by D3 under cover of D3’s 21 July letter with certain amendments, specifically (a) that C paid D1 and D2’s costs thrown away as well, (b) affording D1 and D2 as well as D3 the ability to serve an amended defence following receipt of amended particulars from C, and a consequential amended defence to any amended contribution notice from D3, and (c) that C paid D1 and D2’s costs of and occasioned by C’s amendments to its particulars of claim. C did not respond directly to that letter but as it rejected D3’s open offer, any possibility of a consent order fell away at that stage.

D3 filed a further skeleton on 23 July, setting out the contention that I should grant a conditional strike-out of the type set out in the first sentence of [2] above.

At the hearing before me, D1 and D2 supported through Counsel D3’s position that I should grant such a conditional strike-out, and made clear that Counsel appeared to protect D1 and D2, together with making certain other submissions that I mention below.