Claimants in the ongoing Pan NOx emissions group litigation have had their recoverable costs reduced by 20% after the High Court found them ‘on the wrong side of the line’ with their budget.

Following the second costs management hearing in the claim, Lady Justice Cockerill and senior costs judge Rowley said there were examples suggesting the claimants had not taken ‘regard…of the general criticisms of over lawyering in the first CMH judgment’. They added that the ‘number of attendees at the quantum trial said to be required regrettably took the same approach, to put it mildly’.

The short judgment said: ‘It is plainly appropriate for the parties to adjust their expectations in respect of recoverable costs in the light of their experience of running the litigation. But that does require the parties to take heed of the nature of the court’s criticisms made previously.

‘The shorthand phrase of “over lawyering” applied to various aspects including the number of people involved in the fortnightly management meetings, the quantum trial (T3) and the general running of the cases between the lead and nonlead lawyers. The claimants’ budget sought to counter the court’s trenchant criticisms of over lawyering at the first CMH by providing further information, rather than seeking to curb the extent of the involvement of innumerable lawyers in running the cases.’

The judges found ‘a rather less substantial CMH might have been required if the claimants’ approach to the budgets had been more realistic’.

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The claimants, the judges noted, ‘plainly took the view that further explanation was the correct step, rather than any attempt to cut their cloth’ while the defendants ‘had largely taken on board criticisms made in the first CMH judgment and which therefore limited the extent of reductions’.

The judges departed from the usual costs order – for costs to be ‘in the case’.

‘The order should reflect the claimants having been on the wrong side of the line in terms of the original claims in the budgets in the light of previous guidance,’ the judgment said.

The judges decided a 20% deduction of any recoverable claimants’ costs of the second CMH was an ‘appropriate order’.