A High Court judge has threatened both parties with losing all their costs after accusing them of attempting to seek an ‘opportunistic advantage’.
Mr Justice Fraser (pictured) explained that both parties in GBM Minerals Engineering Consultants v GB Minerals Holdings had been unable to agree who should bear the estimated £97,456 costs of preparing for and attending a pre-trial review last month.
Fraser was handed 13 emails between solicitors from both sides which he said ‘do not make edifying reading’ and show the parties are ‘determined to fight bitterly over every possible inch of ground’.
The claimant, represented by Christopher Wright & Co LLP, submitted that its own amendments should have been agreed and that the defendant unreasonably opposed them. The claimant proposed a net payment from the defendant of £10,000.
The counter-claiming defendant, represented by Farrer & Co, made an offer that the claimant make a net payment of £14,479 to the defendant after suggesting that the claimants’ amendments were required only because statements in the original pleadings were false. The defendant, too, made an application to amend its case.
Fraser explained that each set of amendments was opposed, and each was granted, making this an unusual case.
But he stated the fact that each party opposed the other’s application to amend their pleadings was an attempt to seek ‘opportunistic advantage’.
The defendant, said the judge, had ‘no good reason’ to oppose the claimant’s amendments, while the claimant’s argument that its opponent should have brought its application earlier was ‘opportunistic’.
Fraser said the correct order for costs on each of the applications was no order for costs. He ruled that each party will therefore have to bear its own costs of the hearing of each application.
The judge added: ‘This could be said to be the very antithesis of cost-effective and efficient litigation. If the parties insist on litigation of attrition, they may find (without in any way pre-judging any particular costs applications in advance) the court approaching the matter by not awarding costs to either party.’