Lawyers who served a costs budget two weeks late – then hesitated to apply for relief from sanctions – have been told the High Court will not grant them leniency.
The Honourable Mr Justice Bryan, refused the application for relief from Hill Dickinson, representing the defendant in BMCE Bank International Plc v Phoenix Commodities PVT Ltd & Anor, and effectively denied the firm its costs for the case.
The court heard that the parties had been given a deadline of 27 September for filing and serving costs budgets: the claimant complied but the defendant filed only on 11 October. It then took several days to submit an application for relief.
The judge said it was clear that the solicitor involved in the case ‘took his eye off the ball’ as he was away on a foreign business trip – that was regrettable but not a good reason for breaching court directions. ‘However hard pressed solicitors are, there must be compliance with the rules,’ said the judge. ‘All that can be said, at most, is that the breach was not deliberate, which would of course have been an aggravating factor, but there is no excuse for what has happened.’
The court heard that Hill Dickinson had offered to pay costs of any extra case management hearing which might have been made necessary by the late delivery.
The firm asked the court to take into account its ‘cooperative and helpful approach’ and said the breach had not been a deliberate refusal to engage with the costs process. While it was important to bear in mind the need for compliance with rules and practice directions, it was submitted it was also important ‘to make the penalty fit the crime’, taking into account the solicitor involved also ‘unreservedly apologises’ for the breach.
But the judge agreed with the claimant’s submission that this was ‘not a case of a near miss’. It was pointed out that in Lakhani the defaulting party was penalised for being a day late, and in this case the parties had to waste time and money coming back to the court for a further hearing.
Bryan J said it was important to consider the inconvenience caused to the court and other litigants. While there were cases where relief would be granted, the rules were ‘there to be observed and for good reason’.
The judge refused to grant relief from sanctions and directed that the defendants were treated as having filed a budget comprising only the applicable court fees.