Firm ordered to pay wasted costs for “negligent conduct”

Cook: Regularising service should have been matter of upmost urgency

A Kent law firm has been ordered to pay wasted costs on the indemnity basis for its “negligent and unreasonable conduct” in bringing a claim the court had no jurisdiction to hear.

Master Cook said Kesar & Co in Bromley had failed to engage properly with the jurisdiction and service problems the case faced.

In January, the defendant in Jovicic & Ors v The Serbian Orthodox Church-Serbian Patriarchy [2020] EWHC 2229 (QB) was granted a declaration that the court had no jurisdiction to try the claims of abuse against church clergy and that the claim forms be set aside.

The claimants were all Serbian or Croatian citizens living outside of England and Wales and it was common ground that none of the alleged events occurred here.

Master Cook also made a declaration that the purported service of the claim forms on the church’s London parish was invalid and of no effect because it took place outside the permitted four-month period of time permitted by rule 7.5(1).

He ordered the claimants to pay costs on the indemnity basis and directed Kesar & Co to show cause why it should not pay the defendant’s costs of the applications.

There were two core grounds for the wasted costs application: that the claim forms had been permitted to expire before service and that the court could never have had jurisdiction to try these claims. As a result, the costs of the application to challenge the court’s jurisdiction were in the first instance wasted and in the second incurred unnecessarily.

Master Cook rejected the submission that there was a “mere negligent failure” on the part of director Mladen Kesar to serve the claim forms.

“In my extempore judgment, I expressed the view that Mr Kesar seemed to have no proper understanding of the effect of CPR rule 7.5 or the difficulty presented by CPR rule 7.6(3) [on applying for an extension]…

“On any view the expiry of the claim forms was an important issue. Mr Kesar chose to do nothing about this until the day before notwithstanding that his attention had been drawn to the very point by DWF [for the defendant] in correspondence.”

He did not seek an urgent listing of his application, the judge observed, and then filed and served the claims in July, telling the court that it could vacate an upcoming hearing on his applications to extend the time for service.

Master Cook said: “It must have been blindingly obvious to any competent solicitor that proceedings had been served without an extension of time for service having been granted and that regularising the situation was a matter of the upmost urgency.”

Mr Kesar continued to ignore the service issue even after the defendant sought orders to set aside service.

“Against this background, the defendant’s application to strike out the claims was always going to succeed unless Mr Kesar took some active steps to regularise the position before the strike-out hearing, however he took none.

“In the circumstances I do not see this as a mere negligent failure to serve the claim within the required period. Mr Kesar’s conduct goes beyond that and continued down to the date of the strike-out hearing. Mr Kesar could not have reasonably believed that he had done all that was necessary in this regard.

“Having specifically asked the court to vacate the hearing of his application to extend time, the onus was on him to actively progress the matter.”

On jurisdiction, the judge described as “nonsensical” the statement in the particulars of claim that it was served on the defendant “in the form of the eparchy/diocese of Great Britain and Scandinavia”.

He explained: “First, the claimants were not suing the eparchy/diocese of Great Britain and Scandinavia for anything. Second, Mr Kesar chose not to apply to amend the claim forms. Third, the eparchy is domiciled in Sweden not London.”

It was, he continued, “wholly unreasonable and negligent” to issue these claims in this jurisdiction.

“DWF did all that was in their power to alert Mr Kesar to the correct jurisdictional position, however in my judgment he chose to proceed with a wholly unarguable position through to the hearing of the strike-out application”.

As a result, “all costs incurred after 27 December 2018 when the defendant instructed DWF were caused by the negligent and unreasonable conduct of Kesar & Co”.

It was clear that the defendant had no realistic prospect of recovering its costs from any other party and Master Cook ordered Kesar & Co to pay them on the indemnity basis.

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