A costs judge has refused relief from sanctions despite his “qualms” at the nature of the penalty for the breach involved.
Master Rowley – the newest member of the Senior Court Costs Office – ruled this week that through the Mitchell ruling and then Durrant, the Court of Appeal had been clear about the approach judges should take.
In Long v Value Properties Ltd & Anor, the claimant was in breach of section 32.5 of the Costs Practice Direction by failing, during detailed assessment proceedings, to serve the paying parties’ solicitors with copies of the conditional fee agreements involved and a statement setting out the details of the success fees.
The claimant’s solicitor said this was an “inadvertent omission” and sent the documents on when the issue was raised in the defendants’ points of dispute.
Master Rowley said that throughout the hearing he had been troubled by the ‘one strike and you’re out’ nature of the default – having failed to serve the documents, “unless the claimant’s solicitor recognised his error before the points of dispute were served (and even then it may have been too late), he had breached the rule and oversight would not be sufficient to bring him back into play however promptly an application was made”.
The position was made all the more stark by the sanction, he continued. He contrasted the situation with a failure to serve a notice of funding, where a notice could be served late and the success fee recoverable from that point; there is no similar provision for a failure to provide information at the start of detailed assessment proceedings and “as such it is all or nothing”.
Master Rowley suggested that this seemed “strange” given that “the complete absence of knowledge to the opponent caused by a failure to serve the N251 always seems to cause more prejudice than a failure to serve information regarding a CFA whose existence is already known”.
Nonetheless, he ruled that the non-compliance here was not trivial as defined by Mitchell and the claimant was not able to provide a good reason for it now that “oversight or human error is no longer to be regarded as a good reason”.
The judge said Durrant “makes it clear that the Court of Appeal’s general view is clear on applications of this sort”.
He concluded: “Therefore, whilst I may have qualms about the nature of the sanction imposed for a breach of this particular provision of the CPR, I am clear that I need to take that as being the correct sanction and simply concentrate on whether the breach was trivial and if not whether there is good reason for granting relief. Both of those questions are to be answered in the negative in this case.”