COSTS AT THE END OF THE CASE: THE JUDGE CAN MAKE OBSERVATIONS ABOUT MATTERS OUTSIDE THE COSTS BUDGET

The judgment of H.H. Judge Simon Brown Q.C in Excelerate Technology Ltd -v- Cumberbatch [2015] EWHC B1 Mercantile contains some interesting observations at the end. This illustrates the need for trial counsel to be aware of both the costs budget and the need to ask the trial judge to consider matters outside the trial budget.

THE CASE

The claimant brought an action alleging breach of fiduciary duty by a former director in using the claimant’s confidential information to set up a competing the company. The claimant was successful at trial and obtained damages of £155,343.00.

KEY POINTS

  • In cases subject to costs budget the courts appear willing to make substantial awards for interim payments of costs.
  • The judge was willing to make observations that costs incurred outside the budget were prima facie reasonable.

THE ORDER FOR COSTS

As noted above there are interesting elements of the order for costs.

  • There was no reluctance to make a substantial order for an interim payment of costs (£155,409.66 – presumably based on the costs budgets provided).
  • There was specific reference to additional costs outside the budget which the judge stated were prima-facie reasonable.

“ORDER

  1. David Osmond be joined as a Third Defendant for the purpose of the Claimant’s application for the costs of the action.
  2. There be judgment for the Claimant against the First and Second Defendants in the sum of £ 158,343.00 together with interest assessed at £ 7,248.00.
  3. The £ 62,500.00 paid into court pursuant to the order made on 10 October 2013 together with accrued interest (calculated as £ 223.45) shall be paid out to the Claimant’s solicitors forthwith in partial satisfaction of the judgment debt.
  4. The balance of the judgment debt and interest of £ 102,867.55 shall be paid by 30 January 2015.
  5. The First, Second and Third Defendants shall pay the Claimant’s costs of the action to be assessed upon a detailed assessment on an indemnity basis if not agreed.
  6. The First, Second and Third Defendants shall make a payment on account of costs in the sum of £ 155,409.66 such payment on account to be paid by 30 January 2015.

Judge’s observations on Claimant’s costs additional to their costs budgetThe following costs (excluding VAT) are considered to be prima-facie reasonable:

(A) Costs for hearings 19.11.14 and 12.01.15 £ 6,985.00

(B) Costs for Claimant’s application 09.12.14 £ 1,782.50

(C) Costs re First Defendant’s IVA £ 3,562.50″

 

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