KA-2024-000232 - [2025] EWHC 1681 (KB)

The Judge found, “without hesitation”, that the Appellant should not be paid his costs on the basis that he could have avoided all the costs by accepting the Part 36 offer. This was a “generous” offer by the Respondent which the Appellant had not accepted: [6] of the costs judgment.

He then turned to the issue of “blame” which he said was “not quite as clear cut as Mr Mason points out”. As to the argument based on Barton and Woodward, he held that “there is a fine line between failing to assist the court and failing to assist an opponent”; and that “if one is preparing for a detailed assessment (and if one is preparing the bundles), the Court would expect the parties to liaise to make sure the bundles contain that which is going to be relevant; in those circumstances I would expect a degree of liaison”: [7.a].

He then held as follows:

“7...b. But in any event…that is only half the story. One of the main reasons why there was an adjournment on the last occasion was because it became apparent during the course of the hearing that (through no fault of his own) Mr Mason was unaware of the fact that documents that he needed to take the Court to were contained in a particular bundle (which the parties have been referring to as being ‘Bundle 2’), and that they therefore were available for the assessment. So, had Mr Mason been told of this (I find that he should have been told of this) and had the Court dismissed the Ainsworth point (as in fact it did), then there would have been no need for an adjournment, as we would have been able to do the first items in the documentary schedule.

8.

Therefore, whilst it is certainly true to say that the defendant was significantly at fault for having served a schedule very, very late in the [day], the claimant was also at fault.

9…I have to remind myself that I did make it very clear that there would be costs consequences.

10.

I think there ought to be costs consequence and I think the need for that does in fact justify a departure from the usual rule in CPR r36.17. Put another way, the injustice test is met. Therefore I am not going to award the defendant the entirety of their costs.

11.

But the amount by which I am going to reduce the course is really not going to be that great (because to my mind, yes there was an unnecessary adjournment, but all we lost was the tail end of the last hearing, which is probably an hour or so). So, I propose that rather than making a percentage order, what I will do is when I assess the costs, I am going to marginally reduce the defendant’s costs relating to the second day of the hearing to take account of the fact that a small part of the afternoon of the second hearing was thrown away. I will do that when I come to the assessment of costs, but it is only going to be a very small disallowance a very small reduction”.

By his order sealed on 22 November 2024 the Judge made various orders reflecting the outcome of the detailed assessment process. He summarised his reasons for ordering that the Appellant pay the Respondent’s costs of the assessment from 3 July 2024 to the date of the order, subject to an exclusion to reflect “the costs relating to the time spent on 6 August 2024 dealing with the aforesaid annotated schedule”, as being that “it would be unjust for the [Appellant] to pay the [Respondent]’s costs of that issue where the [Respondent] had caused those costs to be incurred by reason of having filed and served the schedule so late”.