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A costly error: the failure to file a schedule in Mahandru v Nielson [2021] EWHC 2297 (QB) - Rochelle Powell, Temple Garden Chambers

16/09/21. This was an appeal brought by the claimant in the underlying action, Mr Rajeve Mahandru, against an order of Ms Recorder Frost, by which she refused his application for an interim injunction requiring the defendant, Dr Ejiro Nielson, to readmit the claimant to the property where he had been living before he was admitted to hospital. Applying the “balance of convenience” test in American Cyanamid v Ethicon [1975] AC 396, the appeal was dismissed. The judge then went on to consider costs.

Judgment on Costs

The defendant, who had been successful in defending the appeal, brought an application for costs in the sum of £3,960. However, no schedule of costs was served. The claimant argued that the appropriate order in such circumstances was to make no order for costs. Mrs Justice Steyn stated that making such an order would be unjust, given the ordinary rule that the successful party is entitled to their costs. Nevertheless, the judge held at [28] that:

the fault for not providing a schedule of costs clearly lies with the defendant and it seems to me, in the circumstances, the only sums that I can properly summarily assess are the costs which I am told have been incurred in respect of counsel’s appearance at the hearing today and drafting of the skeleton argument.”

Accordingly, the order made was that the claimant to pay the defendant’s costs summarily assessed in the sum of £1,250, a reduction of almost 70%.

Civil Procedure Rules

Mrs Justice Steyn’s judgment serves as a helpful reminder of the duties of parties and legal representatives under Practice Direction 44 9.5:

Duty of Parties and legal representatives

(1) It is the duty of the parties and their legal representatives to assist the judge in making a summary assessment of costs in any case to which paragraph 9.2 above applies, in accordance with the following subparagraphs.

(2) Each party who intends to claim costs must prepare a written statement of those costs showing separately in the form of a schedule –

(a) the number of hours to be claimed;

(b) the hourly rate to be claimed;

(c) the grade of fee earner;

(d) the amount and nature of any disbursement to be claimed, other than counsel's fee for appearing at the hearing;

(e) the amount of legal representative's costs to be claimed for attending or appearing at the hearing;

(f) counsel's fees; and

(g) any VAT to be claimed on these amounts.

(4) The statement of costs must be filed at court and copies of it must be served on any party against whom an order for payment of those costs is intended to be sought as soon as possible and in any event –

(a) for a fast track trial, not less than 2 days before the trial; and

(b) for all other hearings, not less than 24 hours before the time fixed for the hearing.”

Conclusion

The lesson is that if seeking costs make sure details are provided to both the Court and opposing party at least 24 hours prior to the hearing. The failure to do so may be fatal to any application for costs.

Image ©iStockphoto.com/sompong_tom

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