[2024] EWHC 2084 (TCC)

So far as the basis on which costs should be assessed is concerned, I have some sympathy with Mr Brogden’s submission. There are some undoubtedly unsatisfactory aspects of this application which he has relied upon and I have alluded to in judgment. Nonetheless, I am in agreement with Mr Singer on this point.

The real crux of this case is not whether the application was issued ex parte without notice and ought to have been advertised prior to that happening, nor is it that the proposed undertaking in respect of further adjudications was a complete answer to the application.

The application was unusual and one which invited the Court to exercise a jurisdiction which it rarely does, but nonetheless it was properly arguable on the basis that four adjudications being pursued at one time, creating particular pressure on Beck, was oppressive and unreasonable. The application was, in the event, heard on notice with both parties represented. There are, I agree, unusual aspects to this application, but not such as take it outside the regime for assessment on a standard basis, so I will deal with assessment of costs on the standard and not the indemnity basis.

I am asked to summarily assess the costs which I have already said I will do on a standard basis, the point of which is that the burden is on the party seeking its costs to show that those costs were reasonably incurred. The total costs bill put forward by the respondent to the application, Eros, is £115,436.50. That has to be seen in the overall context that this application was issued late last Friday afternoon and emailed to Eros’ solicitors at just after 5 o’clock on the Friday. I accept from Mr Brogden that that timing is likely, in itself, to have caused some increase in costs. As I put it a moment ago, all hands had to be on the pumps, and although leading counsel is involved in the extant adjudications, he was not available at that short notice, and Mr Wilken has had to step in at short notice to act as leading counsel. There can be no complaint or no suggestion that instructing leading counsel was not reasonable. Both parties have had leading counsel on their teams and understandably so for an application of this seriousness.

However, and bearing in mind that the hourly rates for Shoosmiths are £442.50 for a grade A partner, £243.75 for a grade C associate at one level and £228.75 at another, £161.25 for the trainee, and £243 for the costs lawyer who will have drawn up the statement of costs, I have taken, for the purposes of forming a view about this costs bill, an aggregate hourly rate of £500. That might be thought to be generous. It is certainly generous in terms of the solicitors but it takes account of the potentially higher rates for counsel, particularly leading counsel. Taking that broad brush figure and dividing it into the total costs bill indicate that 230 hours of work have been done on this case in the course of just less than a week, which seems to me quite extraordinary, even for an application of this seriousness.

The witness statement of Mr Pawlowski which had to be considered and the responsive statement of Mr Reid were properly, and I have already praised them for this, statements which set out the factual sequence of events in relation to the adjudications and surrounding matters rather than seeking to argue the case. However, the effect of that was that what was involved was putting the documents into chronological order, which I would reasonably assume they were already, given that they related to adjudication proceedings ongoing, and then reducing those to a narrative, cross-referenced to the bundle which is an administrative task that can be carried out, and presumably was carried out, by the trainee or the lowest grade of associate.

That amounted to £35,000 of solicitors’ costs. The remaining £70,000 is made up in brief fees for two counsel, whose work would have included advising on this matter, digesting the witness statements, advising on the witness statements, and then drawing up the skeleton argument that reflected that. How that could all amount, on my rough calculation, to 230 hours of work in the course of a single week, I fail to see. Mr Brogden is clearly right that this was an important matter for his clients, it needed to be hard fought, but that does not to my mind justify quite extraordinarily high number of hours and this extraordinarily high level of costs.

I do recognise that there will have been some uplift because of the manner in which Eros was “bumped” with this application, and I am going to make a generous allowance for that in assessing the costs, but I am going to take a broad brush approach and assess them at £70,000.