A High Court judge has set aside a previous costs decision after finding representations had sought to ‘camouflage’ reasons for a delay.
Mr Justice Turner refused permission to extend the time allowed for an appeal in Webb Resolutions Limited v E-Surv Limited.
The claimant had brought a costs claim against the chartered surveyor after a successful settlement in the Technology and Construction Court. The defendant was unhappy with the detailed assessment made in April and sought to appeal the decision – an appeal refused on paper in July.
The defendant’s solicitors, from Just Costs, asserted they did not receive the July order until 10 October and successfully persuaded Mr Justice Blair to agree an extension in November.
In a judgment published this week, Turner said Blair was misled – albeit, he stated, not deliberately – during representations made to him.
Turner said: ‘The representations made to him were phrased in such a way as to camouflage the real period of delay upon which his mind ought to have been focused.’
Turner said the defendant’s advocate’s point that the firm received the order declining permission two and a half months late was ‘simply wrong’, adding: ‘I absolve the defendant’s advocate from any suggestion that he deliberately misled the court, but on an objective analysis, the unintended impact of his representations was such as to mislead the court.’
Turner was also unmoved by the defendant’s suggestion in November that his client’s case was helped by the Mitchell judgment, which was published on the day of the hearing. In Mitchell, master of the rolls Lord Dyson refused an appeal for a late submission of a costs budget, arguing that it could not be considered a ‘trivial’ breach of compliance.
Turner added that in the Webb case the default was not trivial, after the defendant delayed for three times longer than the rules permitted.
He added that in the light of the Mitchell test for what will excuse non-compliance with court orders, these were ‘thoroughly bad reasons’.
In a statement, Rosling King, the firm representing Webb Resolutions, said its clients will now be awarded full costs of £24,344.
The statement added the latest judgment serves as a ‘warning to litigants to heed the Court of Appeal’s message in Mitchell and comply with court deadlines’.
A spokesman for Just Costs said both advocates at the hearing had been denied the opportunity to address the court on any substantive issue.
'It is extremely unfortunate that, having being denied the opportunity usually afforded to advocates, the judge sought to raise inferred concerns, without providing the advocates any opportunity to respond. The dangers of this can be seen by the inaccurate reference to the Mitchell decision. This case was of help to the appellants in respect of the substantive appeal. That was the context it was raised by the advocate, as is clearly shown in the 36-page official transcript.
'It is rejected that the advocate indirectly misled the court. Particularly when he spent almost two hours answering the questions of the first appeal judge, after the judge had confirmed he hard already read all the papers.'