[2025] EWHC 2307 (KB)

As mentioned above, in respect of the defendants’ costs, there were a number of phases where the claimants had made the same offer to each defendant (particularly Non-ALGLO defendants). On some occasions, that offer had been accepted by all defendants, on most occasions it was accepted by some of them and on one occasion (trial preparation) it had not been accepted by any of them. The argument was made, usually by Mr Lyons on behalf of his clients, that there had to be a range of figures which could be described as reasonable and proportionate and so it could not be the case that all defendants had to be allowed the same sum.

Additionally, we were told that this was not the approach taken at the first CMH and there are certainly instances where, for example, Ford had been allowed one figure and other Lead and ALGLO defendants had been allowed higher sums. Equally, however, there are plainly other instances, such as for the fortnightly meetings, where the ALGLO defendants were allowed the same sum and the Non-ALGLO defendants were also allowed a single (different) sum albeit the court recognised a “graduation” between them (see paragraph 86).

The nature of budgeting is to allow a sum that is reasonable and proportionate for each phase based on the assumptions of the parties and the views of the court. It is inevitable that this sum would differ between budgeting judges and so, to that extent, there is a range of figures that can be described as reasonable and proportionate that could be allowed. But this does not take away from the broad nature of budget setting for estimated costs yet to be incurred. There is nothing to say that the same, broad, figure should not be allowed for each defendant undertaking the same tasks in a phase. This is particularly so, in the absence of any compelling reason as to why a particular defendant’s costs should be higher (or lower) than any others.

It has long been the case that solicitors’ estimates which were exceeded by no more than 20% were conventionally treated as being within an acceptable range (see e.g. Morgan J’s comments in Mastercigars Direct Ltd v Withers LLP [2009] EWHC 651 (Ch) at paragraph 55ff). That approach persists in the CPR where, at paragraph 3 of the Part 44 Practice Direction, costs claimed at a detailed assessment which exceed a previously filed budget by more than 20%have to be supported by a statement of reasons, but not otherwise.

It seems to us that figures which are within 20% of the opponents’ offer may be considered to be within a reasonable and proportionate range of figures, always assuming that the comparator sum is considered to be reasonable and proportionate. On occasion, therefore, we have allowed a figure within this tolerance, rather than always adjusting figures so that they are the same. But we have not always considered this to be appropriate and so there are examples of both approaches which, it seems to us, is nevertheless consistent with the approach taken in the first CMH judgment.

However, where figures are more than 20% above that comparator figure, they are going to require specific reasoning to justify those higher figures. Whilst Mr Lyons, on behalf of Vauxhall and Peugeot Citroën (“PCD”), valiantly sought to portray his clients’ figures as being within the reasonable and proportionate range, we generally did not accept that to be the case. Consequently, on many occasions they have been reduced to figures agreed with other defendants.