THE PARTIES CANNOT CONTRACT OUT OF COSTS BUDGETING (& A LITTLE BIT ABOUT WITHOUT PREJUDICE CORRESPONDENCE)

An earlier post dealt with the decision of Mr Justice Roth in Agents’ Mutual Limited -v- Gascoigne Halman [2016] CAT 21.  However an earlier ruling in the same case contains a consideration of whether the parties can agree to sidestep budgeting.

THE CASE

The action had been transferred from the Chancery Division to the Competition Appeal Tribunal. An order had been made, by consent, whilst the case was still in the Chancery Division stating that the requirements for costs management be dispensed with.

THE DECISION

The judge held that the order did not cover any order for costs budgeting in the CAT.   However he also observed:

“34.          Finally, I should make clear that even if, contrary to the above, I had found that the parties had agreed to dispense with costs management in the CAT, that would not preclude the CAT’s power to make such costs management orders as it considered appropriate. Although I accept that any such agreement between the parties would be a very relevant factor to take into account, for the reasons set out above that situation does not arise in this case.”

DISCUSSION OF THE WITHOUT PREJUDICE RULE

There was a discussion about the way in which the Order in question had been made.

  1. “In his 4 th witness statement in support of this application, Mr Bronenfentrinker stated that the discussions on 4-5 July were without prejudice so that he was not able to reveal the detail of those discussions. That is misconceived as a matter of law: it has long been established that if there is an issue as to whether without prejudice communications resulted in an agreement or give rise to an estoppel, such communications are admissible in evidence. See eg Oceanbulk Shipping and Trading v TMT Asia [2010] UKSC 44; Phipson on Evidence (18 th edn), para 24-15. This was pointed out in the submissions for the Claimant, and in her 3 rd witness statement Ms Farrell stated that she attended the hearing before Sir Kenneth Parker and was involved in the discussions between the parties, and to her knowledge there was no such agreement or common understanding.”

    COSTS BUDGETING AND PROPORTIONALITY: RELATED POSTS

     

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