The proper approach to costs – a view from the Technology and Construction Court

Gotch & Anor -v- Enelco Ltd [2015] EWHC 1802 (TCC) 03/07/2015

This recent decision from Mr Justice Edwards-Stuart, the Judge in charge of the Technology and Construction Court (TCC), provides the strongest indication yet that unreasonableness, intransigence and the taking of every point must now be regarded as unacceptable.

“With their introduction in 1999 the CPR introduced radical changes in the approach to litigation in England and Wales.  Recently, these changes have been substantially extended as a result of the Jackson reforms to introduce the additional requirement in the overriding objective to deal with cases “at proportionate cost”.

“By CPR 1.3 the parties are required to help the court to further the overriding objective. It is therefore time to say, in the clearest terms, that parties and their solicitors can no longer conduct litigation in a manner which does not keep the proportionality of the costs being incurred at the forefront of their minds at all times.

“It is no longer acceptable – if it ever was – for parties to pursue issues or applications that have no real impact on the issues that are central to the dispute.  Further, it is no longer acceptable for solicitors to carry on a war of attrition by correspondence, whether instructed to do so or not:  it is the parties who are the subject of the duty in CPR 1.3, not merely their solicitors.

“Litigation in the TCC is primarily commercial.  In a few cases, such as this one, the subject matter is, or is at least said to be, buildings intended for residential occupation.  Nevertheless, these are substantial properties.  So even in a case such as this, there will only rarely be any justification for fighting or taking points simply “as a matter of principle”.

“Whilst English law is an adversarial process, that goes to the issues in the case:  not to every aspect of the procedure.  Parties to litigation, in the TCC at least, are expected to conduct that litigation in the manner that is most expeditious and economical.  Bringing the right issues to trial in the most economical fashion, and taking steps to ensure that the costs are kept at a level that is proportionate to what is at stake, is to be at the heart of the process.

“Unreasonableness, intransigence and the taking of every point must in my view now be regarded as unacceptable, because conducting litigation in that way flies in the face of the overriding objective as it is now formulated.  These habits must disappear from the landscape of litigation in the TCC.  If they do not, offending litigants must expect to bear the costs.

“If access to justice is to have any real meaning, then the aim of keeping costs to the reasonable minimum must become paramount.  Procedural squabbles must be banished and a culture of cooperative conduct introduced in their place.  This will not prevent contentious issues from being tried fairly:  on the contrary it should promote it”.

In the current “post-Jackson” climate “a culture of cooperative conduct” would be a welcome breath of fresh air. Unfortunately, it seems highly unlikely that the large army of Defendants, who enjoy the luxury of being funded by Insurers, local authorities and some government bodies (the NHSLA springs to mind!), will ever be persuaded to adopt such an approach as the costs sanctions that could be imposed would in the end be met by Joe Public via their insurance premiums and taxes.

Perhaps this is too cynical a view. Only time will tell.

In the meantime, this is a decision worth quoting if faced with an uncooperative opponent and here is the link to the judgement: