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One-line explanation “enough for budget decision”

Ruling: It was clear enough what the DDJ felt

A costs budget decision that said simply “instruction of leading counsel is not approved” without explaining further was sufficient in the circumstances, the High Court has ruled.

Mr Justice Nugee cautioned that it was not, in general, “conducive to the efficient and cost-effective dispatch of costs management decisions” if every part of those decisions has to be justified with extensive reasons.

Easteye Ltd v Malhotra Property Investments Ltd & Ors [2019] EWHC 2820 (Ch) [1] concerns two disputed rights of way in Newcastle, and during the costs management hearing, the claimant sought £210,020 for the trial phase, including £139,000 for leading counsel and £30,500 for junior counsel.

The defendants offered £120,000 for the phase without breaking down the figure, although using the submissions, Deputy District Judge Pescod estimated that the defendant was offering £90,000 for counsel’s fees. The main area of contention was the need to instruct leading counsel.

Ruling on the paper, the DDJ said: “£120,000 is allowed in respect of the claimant’s trial phase and instruction of leading counsel is not approved.”

The claimant argued that the DDJ had not given reasons for his decision and that the court should retake the decision.

Mr Justice Nugee found that although the reasons were “briefly expressed”, they were given; the Court of Appeal in English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605 [2], an authority on inadequate reasons, noted that decisions in costs matters were “often expressed summarily”.

It was relevant that the DDJ was a retired full-time district judge and also had seen this case twice before.

The DDJ faced a “stark choice” between the two sides’ positions, and Nugee J said: “I think that on the material that I have been shown, it is possible to discern from the deputy district judge’s very briefly expressed reasons that he preferred the submissions of the defendants as to the appropriateness of employing leading counsel and that that can only have been because he was not persuaded that the value, complexity, and heaviness of the case justified leading counsel.

“As I have suggested, that is ultimately a question of judgment or assessment and even if he had spelled out at great lengths what the factors were, I rather doubt that at the end he would have said more than having regard to the perceived complexity, length, heaviness, importance, and value of the case he was not satisfied that it was reasonable and proportionate to engage leading counsel.

“I take the point that the claimant is left not knowing precisely whether he thought it was not reasonable, or although reasonable was not proportionate, but the overall message is clear that he was not satisfied that this was a case that justified leading counsel.”

He went on to reject the claimant’s argument that DDJ Pescod had made the wrong decision, saying it was not one that was perverse or could not be reasonably reached.

Refusing the appeal, Nugee J noted that it would be open to the claimant, if successful, to seek to persuade the judge conducting the detailed assessment to depart from £120,000 for the trial phase by showing good reason to do so.