BL-2022-MAN-000036 - [2025] EWHC 2084 (Ch)

Mr Wilton submits that Vincents’ application to strike out or summarily determine the claim would have succeeded had the remaining claimants not produced a wholesale amendment. Furthermore, whilst the court allowed an informal application to amend, significant amendments were not permitted. Mr Wilton submits that the appropriate order is for the remaining claimants to pay:

In his written submissions, Mr Wilton relates the history of the applications, summarises the remaining claimants’ proposed amendments, and refers to the principal holdings in my second judgment. He then addresses (uncontroversially) the applicable principles governing the award of costs. The court’s general discretion as to costs is detailed in CPR 44.2. The general rule is that the unsuccessful party should pay the costs of the successful party, but the court will consider all the circumstances of the case, including the conduct of the parties, and whether a party has succeeded on part, if not the whole, of its case. Matters of conduct can include whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue, and the manner in which a party has pursued or defended his case. The orders the court may make include an order that a party should pay a proportion of another party’s costs, a stated amount in respect of costs, costs from or until a certain date, and the costs of particular steps taken, or of a distinct part of the proceedings.

At the time of preparing his written submissions on costs, Mr Wilton had not been able to find any precedent as to the costs of a strike out or summary judgment application which had not succeeded only by reason of amendments made by the respondent. He submits that where it is clear that the application would have succeeded absent those amendments, the starting point should be that costs should be paid by the respondent as it follows that the case was fundamentally defective, and would have been dismissed but for the amendment.

As to the costs of the application to amend, viewed in isolation, Mr Wilton concedes that, as the White Book states (at paragraph 17.3.10): “Parties ought to consent to amendments they cannot reasonably oppose and, if they do not, they may be penalised in costs.” But he says that that plainly is not the case where the opposition is reasonable. To the extent that an application fails, there is no reason why the applicant should not pay the costs, or at least why that failure should not be reflected in the court’s order as to costs. In any event, the relevant context here is Vincents’ own application, which acted as the catalyst for the amendments.

Mr Wilton submits that it is also noteworthy that an amendment may change a case so radically that the respondent to the amendment should be entitled to recover the costs of responding to the previous case. As Stuart-Smith LJ observed, in Beoco Ltd v Alfa Laval Co Ltd [1995] QB 137, as cited in the White Book (at paragraph 17.3.10):

Mr Wilton then addresses the appropriate form of order. He does not say that the remaining claimants should pay the costs of Vincents’ defence of the unamended claim. Notwithstanding the far-reaching changes to the claim, there remains a ‘family resemblance’. But it is a material consideration that Vincents has thus far had to defend a very different, and wholly generic, case. Substantial costs will have been thrown away. Mr Wilton submits that Vincents should have the costs of and occasioned by the amendments and that the remaining claimants should pay their full share (i.e. 71%) of Vincents’ costs up to 22 July 2024, by which time Vincents had had an opportunity to review the draft amended particulars of claim. The remaining claimants should also be ordered to pay 50% of Vincents’ costs thereafter. That is for the previous, and also the following, further, reasons:

Mr Wilton has appended to his submissions Vincents’ statements of costs for the hearings on 20 March (in the total sum of £39,850.32) and 5 December 2024 (in the total sum of £33,798.15). No VAT element is included within these figures. Mr Wilton invites the court to assess the costs summarily, on the basis that at least £2,000 of the costs in the second schedule concerns work undertaken before 22 July 2024, making a total of £41,850.32 incurred by that date. The remaining claimants should pay 71% of this sum, i.e. £29,713.73. Conversely, £31,798.15 (the costs in the second schedule less £2,000) was incurred thereafter: the remaining claimants should pay 50% of this latter sum, i.e. £15,899.07. That makes a total of £45,612.80. Alternatively, if the court is minded to require a detailed assessment, Mr Wilton invites the court to direct a payment on account of 60% of £41,850.32 (£25,110) plus 30% of £31,798.15 (£9,539), which is a total of £34,649.

By way of a supplement to his written submissions, at the end of his skeleton argument for the CCMH, Mr Wilton respectfully prays in aid the court’s decision in Bellhouse v Zurich Insurance Plc [2025] EWHC 1551 (Comm). That case also featured a strike-out application which did not succeed, but only on the basis that the respondent had to undertake a comprehensive amendment of its case in order to address serious deficiencies in its original pleadings. The court concluded that the applicant was the successful party and should receive its costs. Mr Wilton acknowledges that in that case there were admittedly aspects of the respondent’s conduct which were wholly unreasonable, and which, he accepts, have not been replicated here. Therefore, he does not suggest that indemnity costs are appropriate here, as they were in the Bellhouse case. However, the overall incidence of costs in that case is said to support Vincents’ overall submission that where a party’s case is fundamentally deficient, it should expect to pay the costs of an application for summary determination in circumstances where the claim is only allowed to proceed by reason of a comprehensive amendment which is necessary in order for the respondent to produce a viable claim. Having said that, the detailed order sought in this case remains that outlined in Mr Wilton’s earlier costs submissions, for the particular reasons he gives there.