First 'plebgate', now cost budgeting sanction. Harsh or to be expected?

First 'plebgate', now cost budgeting sanction. Harsh or to be expected?

It seems that Andrew Mitchell MP is back making headlines.  After the ‘Plebgate’ affair he decided to bring libel proceedings against NGN, the owners of the Sun Newspaper.  In doing so he chose a small two partner firm to act for him and it is the size of firm which has brought him back into the spotlight on account of the proceedings being subject to costs budgeting and the firm failing to file a costs budget.

As all practitioners should know this is not a good move if you want to be able to recover costs at the end of the proceedings.  One could perhaps feel for the law firm in question, small with no ability to obtain extra resources when needed, given just two days’ notice as to the date of the CMC producing the required costs budget was clearly going to run into difficulties.

Ultimate sanction imposed

Perhaps one would have thought, given the previous run of cases in this area, that the court would have shown some leniency in this case but instead Master McCloud took the hardest line possible and imposed the ultimate sanction of treating Mitchell as having filed a costs budget for court fees only.  Many may wonder whether the fact that she had to vacate court time to deal with the hearing, time which had previously be due to be used to deal with asbestos cases, may have contributed to what may be regarded as a harsh sanction.

However, Master McCloud took the view that the claimant’s lawyers knew what was expected of them and therefore they should not be able to hide behind excuses of insufficient resources; they should have dealt with the costs budget prior to being giving notice of the CMC.

Court of Appeal stance awaited

Permission to appeal has been given.  It will be interesting to see the stance the Court of Appeal take given that this will provide it with an opportunity to revisit this issue for the first time under the new rules since the decision in Henry v News Group Newspapers.

Do you think this decision was the right way forward by the courts in making it clear that non- compliance with the CPR provisions will not be tolerated or that some leniency should have been shown eg to reschedule the CMC to allow time to complete the costs budget but with a costs sanction for failure to provide it in time being applied?

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About the author:

Janna is a dispute resolution lawyer. She deals primarily with cross border issues and is active in the work being undertaken in relation to the implications of Brexit for Dispute Resolution lawyers. Janna also heads up a LexisNexis costs team bringing together expertise from across the company to deal with the costs issues facing the profession.