HT-2021-000466 - [2024] EWHC 2110 (TCC)

On 13 October 2023 Mr Neil Moody KC heard an application made by Arcadis for various orders relating to disclosure. In large measure the application called for IRDL to make fresh or different searches for documents. He gave judgment on 15 November 2023 ([2023] EWHC 2864 (TCC)).

Costs were reserved by agreement.

In her skeleton argument, Ms Slow argues as follows:

95.

IRDL submits that it should get its costs of the application on the basis that:

1.

It enjoyed by far the greatest measure of success in the application (and Arcadis’ conduct of the application and approach thereto was strongly criticised in the judgment). Had Arcadis made a targeted disclosure request for the limited disclosure ultimately ordered, the hearing would never have happened;

2.

IRDL sensibly provided all the documents that had responded to the agreed search criteria of the DRD. This resulted in Arcadis having numerous documents to which it technically not entitled. This demonstrated IRDL’s open approach to disclosure and the fact it was confident in its approach to the disclosure process was robust and the primary issue with “missing” documents stemmed from those documents not being available for disclosure rather than IRDL trying to withhold them.

3.

IRDL throughout repeatedly offered to look for further documents outside of the search criteria / conduct new searches, if the proper scope of the further searches sought was sent out;

4.

It would have been awarded those costs had the order been costs in the case (reflecting that both parties enjoyed some success and the fact that resolving issues in relation to disclosure is a necessary part of litigation and the absence of any offers at the time of the application);

5.

It would have been awarded those costs had the order been the Claimant’s costs in the case (reflecting the above but also reflecting the Claimant’s entitlement to recover those costs only in the event of its ultimate success above any offers that may have existed or otherwise). It has subsequently succeeded.

96.

Alternatively, there should be no order for costs on the basis that:

1.

This reflects the fact that both parties enjoyed a measure of success (with IRDL succeeding in defeating 2/3 of the application but Arcadis obtaining an order for at least some further disclosure);

2.

This reflects the position as it would have been had the order been the Defendant’s costs in the case i.e. that the Defendant would be entitled to its costs of the application but only if it obtained an overall costs judgment in its favour (such as if it had made an offer at the time of that hearing which IRDL failed to better). This would reflect the fact that the argument about disclosure was part of a case which was only necessary because of the Defendant’s negligence and failure to make good IRDL’s losses thereafter.

97.

IRDL respectfully submits that there is no realistic scope in the context of this dispute for the Defendant to receive its costs of the disclosure application given that it lost the litigation overall, lost the application in the round and was criticised for the manner in which it advanced the application. If, contrary to this submission, the court considers there is some basis for the Defendant obtaining some costs of this application it ought to recover only a small percentage of those costs to reflect the degree of success enjoyed by IRDL in the application and the criticisms made of how the application was approached.

Ms Piercy argues that the application was necessary because IRDL had not carried out its disclosure exercise properly. In the event, she says, it led to a significant quantity of documentation being disclosed.

In my judgment, the appropriate order is that there should be no order for costs. Whilst the application succeeded in part, it also failed in large part. Accordingly I accept Ms Slow’s argument in paragraph 96.1 of her skeleton argument.