Failure to file Statement of Costs in interim applications– Does the offending party lose its costs?
The Court has seen two recent cases where parties have failed to file statements of costs, as they should have under Practice Direction 44. However, almost polar opposite positions have been taken, at the Judge’s discretion, given consideration of the specific circumstances of the cases.
In Vine v Belfield [2021] EWHC 3068 (QB) the Court determined that the Defendant’s non-compliance with Court orders had resulted in a trial of preliminary issues being adjourned. As a consequence, the Court was minded to award the Claimant the costs that had been thrown away. However, the Claimant had failed to serve a statement of costs in relation to its application and the Defendant sought to rely on Practice Direction 44 9.5(6) for the Court to take into account such a failing when making an order for costs. Specifically, the Defendant argued that the failing removed the opportunity for the Defendant to object to any such costs.
The Court rejected the Defendant’s submission and found that the Defendant’s non-compliance with previous Courts orders took precedence and thus it was right that the Defendant pay the costs thrown away by the exercise.
The Court did however observe that the Claimant’s failure to serve a statement of costs disabled the Defendant from having an opportunity to consider whether there were objections that could be taken to the costs and it therefore ordered a detailed assessment of those costs rather than seeking to summarily assess the costs at the end of the hearing.
Therefore, in this case, despite the Claimant’s failure to serve a schedule in support of his application for costs, the Defendant’s failures to comply with orders was a more serious concern, leading to the Claimant’s ability to recover costs for the application.
In Mahandru v Nielson [2021] EWHC 2297 (QB) the Claimant made an application for an interim injunction which was refused by the Court. The Defendant having been successful in the application it sought its costs of the application.
The Defendant sought its costs of £3,690.00 but no schedule was served as it should have been and the Claimant put forward arguments that as a consequence of the failure that there should be no order for costs.
The Judge ordered here that although successful in its application, the failure to serve the schedule was the fault of the Defendant alone. In these circumstances the Court decided to award the Defendant its costs in principle but when summarily assessing those costs to limit the recovery to Counsel’s fees only.
So, these are two different outcomes from the same failure. Sometimes therefore costs can be recovered even when a statement of costs is not filed, however this would all turn on the circumstances of the case and the specific actions of each party.
Claire Corrie – Costs Lawyer