One-day delay in filing costs budget can be “entirely irrelevant”, says judge

flood dispute

Flood dispute: flexible approach to Mitchell

A Birmingham technology judge has said that delays of a day or more in filing a costs budget can become “almost entirely irrelevant or immaterial” where costs management orders are delayed.

Judge David Grant was sitting as a High Court judge in a case involving a flooding claim. The fourth defendant was a day late in filing her costs budget, so it was served six rather than seven days before the first case management conference (CMC).

Ruling in Wain v Gloucestershire County Council and others [2014] EWHC 1274 (TCC), Judge Grant said that “perhaps part of the problem in cases involving late filing of costs budgets” was that the consequences under CPR 3.14 were “extremely severe”.

However, he said experience in the Birmingham Technology and Construction Court in costs management over the last few years had shown that where budgets were filed a day or more late, “experienced and competent practitioners” had “invariably” been able to deal with the process of costs management at the first CMC.

“Much depends on the particular circumstances of the case, and in particular whether the parties are able to deal with the material contained in the costs budgets on the day in question, and whether or not any disruption to the court’s timetable has been or will be occasioned by such breach.”

Judge Grant said these considerations were particularly relevant where orders were not made at the first CMC, occasions which were “not infrequent” and could occur where, following decisions about the numbers of expert witnesses and the length of the hearing, revised costs budgets were necessary.

“In such circumstances an initial delay of one day or more in filing a costs budget can become almost entirely irrelevant or immaterial on the subsequent occasion when the court in fact makes a costs management order.”

Judge Grant said there was a “palpable distinction” between the general position of the claimants in the case before him, who had many years to prepare their case, and of the fourth defendant, who had only recently been involved.

He said that although the Court of Appeal did not define what was meant by the word “trivial” in Mitchell, he regarded the breach in this case, when properly analysed and having regard to all the circumstances, as trivial.

Among the reasons cited by Judge Grant were that the delay was of only one day, that the claimants had not suffered any prejudice and, unlike the position in Mitchell, no disruption had been caused to the court’s timetable.

“The only additional burden placed upon the court has been the need to take some time during today’s hearing to consider the point, and also for me to spend some time both before the commencement of this hearing and during the short adjournment to prepare this ruling.”

The judge ruled that the fourth defendant should be entitled to rely on her costs budget as served.


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