The High Court has sent a strong message about non-disclosure and failing to negotiate by penalising a party over costs.
In Kupeli & Ors v Sirketi (t/a Cyprus Turkish Airlines), Mrs Justice Whipple said the defendant should pay 33% of the claimants’ reasonable costs following its conduct in the case.
Whipple accepted the Part 1 trial was won by the claimants as they ultimately would receive a cheque from the defendant. She added that a percentage costs order was appropriate rather than one based on issues.
Lawyers for the claimants argued the defendant had caused unnecessary cost to be incurred, by failing to disclose all the relevant documents and not answering a pre-action protocol letter.
They went on to suggest the defendant put forward ‘confused and confusing evidence’, resulting in sending the claimant on ’wild goose chases’ for information.
An offer to settle was rejected, with no counter offer made. Suggestions of settlements, negotiations or ADR were rejected ‘out of hand’ by the defendant.
The defendant’s lawyers argued the claimants only won an amended claim served later in the litigation process and that a settlement was never going to be possible, especially after an ‘unrealistically high’ figure was set by the opposition.
Whipple agreed the defendant had failed to make full disclosure and that relevant documents should have been made available during the trial.
She also noted the defendant had resisted all early attempts at discussion or negotiation.
‘This case was crying out for some sensible attempt at negotiation before costs racked up and the parties’ attitude hardened,’ she added.
‘Even if the case could not be settled, an early meeting would surely have focussed the minds of those involved, and is likely to have led at least to some narrowing of issues, which would in the end have saved costs.’
Whipple ordered the defendant to pay 33% of the claimants’ reasonable costs of the Part 1 trial.
For the claimants: Matthew Bradley (instructed by Hudson Morgan Williams Solicitors)
For the defendant: Mr Jonathan Adkin QC and Ms Sophie Holcombe (instructed by Zimmers Solicitors)