COSTS, COPYING AND PROPORTIONALITY

The judgment of His Honour Judge Lochrane in Ryanair Limited -v- Secretary of State for the Home Department [2016] EWFC B5 has attracted some attention. Here I want to look at the short judgment in relation to costs.

THE CASE

The claimant was appealing a fine of £4,000 imposed on the grounds that it should have noticed that passenger passports were fake. The issue was whether it was “reasonably apparent”.  The case had wider ramifications since large sums were being paid annually.

THE JUDGMENT ON COSTS
  1. Consequent upon my judgment in favour of the Appellant in this case, an application is made by the Appellant for its costs against the Respondent, the Secretary of State. Two schedules are produced amounting to a total of £17,245.09.
  2. In assessing the costs, the obligation is to ensure that costs are awarded which are reasonably incurred and reasonable in amount set against the proportionality of the costs claimed in relation to the issues at stake.
  3. The specific sums at stake in this case, of course, are comparatively small compared to the costs claimed. The specific sums are only £4,000, but it is very apparent that that must be set against the principles involved and the importance on both sides of the issues which were under discussion. It seems to me that a specific analysis, in the context of proportionality, of the sums claimed as against the costs bill is not, in my judgment, directly relevant here.
  4. The point is made in considering proportionality that the Secretary of State’s costs, if otherwise claimed, would have been in the sum of nearly £27,000 as against the £17,000 claimed by Ryanair, the Appellant. But, again, in considering that, whilst it is a relevant consideration, of course, one must, I think, remember that it has been accepted throughout that, albeit that Ryanair is the Appellant in this case, it is, in fact, the Home Secretary who has to make the running. It is the Home Secretary, effectively, who is the claimant in this case with the burden to satisfy. It seems to me that it is not altogether surprising in those circumstances that costs incurred by the Home Secretary in pressing her case would have been larger than those incurred by Ryanair in, effectively, defending it.
  5. Nonetheless, as I have said, this is a case which has involved a significant amount of documentation, not huge but, nonetheless, significant, and it has also involved the employment and proper instruction, very helpfully, of two extremely experienced Counsel, which has been obviously of great assistance both to the court and I think in the proper analysis of the issues to be determined. Of course, ultimately, there is a level below which it is simply not viable or practical to expect properly presented cases to be put before the court by properly instructed and competent Counsel.
  6. Having said all that, there are individual issues which are raised, albeit the Secretary of State raises no objection to the basic principle that costs should follow the event in this case. The bill presented by the Appellant identifies, in particular, one item of copying at £2,114.09. On any measure a large sum when applied simply to copying. I have had my attention drawn to the practice direction to Part 47 at para.5.22(v), which indicates that the costs of making copies will not, in general, be allowed, but the court may exceptionally in its discretion make an allowance for copying in unusual circumstances or where the documents copied are unusually numerous in relation to the nature of the case and, where this discretion is invoked, the number of copies made, their purpose and the costs claimed for them must be set out in the bill.
  7. First of all, I am afraid to have to say that I am not sure that the Appellant, Ryanair, has satisfied the requirement of establishing that the circumstances are sufficiently unusual in relation to the nature of the case to justify the consideration of the exercise of this discretion, but, nonetheless, going on, the practice direction requires that, if the discretion is to be invoked, the number of copies made and their purpose must be included as well as the costs claimed. The only item of that checklist addressed in this costs bill is the sum claimed. There is no reference to the number of copies or, indeed, their purpose.
  8. In those circumstances, it seems to me it is not open to me to consider the exercise of the discretion, even if I were so inclined in this case, and the sum claimed for copying must be excluded from the order for costs to be paid.
  9. Beyond that, Dr. Staker makes what I think Mr. Davidson referred to as a number of “pot shots” at specific items claimed in the bill. It is always a problem, I think, when considering what is reasonably incurred and proportionate in the circumstances when one is asked to descend to the minutiae of hours and consideration of documents, when one has not a detailed knowledge of the conduct of the litigation or, indeed, what was actually involved in the sums incurred.
  10. The only specific item against which Mr. Davidson has not raised a specific argument, but it seems to me has some significant merit in this respect, is the sum claimed under the schedule of work done on documents for considering an application for specific disclosure and preparing supporting documents in the sum of £378 , when, in fact, there was no application for specific disclosure. It is a little difficult to identify what work can reasonably be said to have been incurred in any proportionate sense in that respect.
  11. Doing the best I can, it seems to me that, despite Dr. Staker’s suggestion that some of these items are objectively unreasonable, it is not open to me, I think, to come to that conclusion; none of them seems to me on the face of it to be objectively unreasonable, given the complexities and the importance of this case on either side, save in the circumstances for that item 5 on the schedule of work done on documents for which there does not seem to be any real justification.
  12. I will approve the bill, with the removal of £378 in relation to the specific disclosure claim and the copying figure of £2,114.09. Somebody else can do the maths, but the two schedules, minus those figures, are the costs I assess the Secretary of State will pay to the Appellant in this case”

THE PRACTICE DIRECTION 47.5.22 (v)

“(5) The cost of making copies of documents will not in general be allowed but the court may exceptionally in its discretion make an allowance for copying in unusual circumstances or where the documents copied are unusually numerous in relation to the nature of the case. Where this discretion is invoked the number of copies made, their purpose and the costs claimed for them must be set out in the bill.”

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