It was open to Courtwell to apply for indemnity costs if they could show that Greencore鈥檚 behaviour in the dispute had been unreasonable to a high degree. But on the evidence both sides were at fault
The Facts
Courtwell Properties Ltd (鈥淐ourtwell鈥�) was the sub-lessee of industrial premises in Salford. Its sub-sub-lessee was Greencore PF (UK) Ltd (鈥淕reencore鈥�) who in turn had sub-let the premises for use as a bakery. Greencore鈥檚 sub-sub-leases expired and in April 2010 Courtwell prepared schedules of dilapidations showing total remedial work costs of 拢1,774,000.
As the bakers apparently had no intention of leaving the premises, Greencore鈥檚 building surveyor suggested that Courtwell had suffered no loss and requested that Courtwell confirm its intentions for the premises.
By September 2011 meetings had commenced between the parties鈥� expert building surveyors but throughout the dispute, relations between the expert surveyors and the expert valuers retained by each side were fractious and unproductive.
On 26 June 2012 Courtwell issued a letter of claim under the Dilapidations Pre-Action Protocol (鈥渢he protocol鈥�) seeking 拢700,000 based on capital diminution rather than remedial costs. Greencore was unable to respond within the 56 day period required by the protocol and in September 2012 asked for access to the site and suggested that the valuers should meet to narrow issues.
Courtwell replied that a meeting would not achieve much because of Greencore鈥檚 reliance upon a no loss argument. Courtwell said that in the absence of a response from Greencore under the protocol it would press forward and in November 2012 Courtwell issued proceedings in the TCC.
At the same time Courtwell proposed mediation. Despite further exchanges between the parties鈥� solicitors, no mediation took place.
Greencore denied that any loss flowed from any established breach of the sub-leases and in due course the court made directions and fixed a trial date for November 2013. In May 2013 the court approved Courtwell鈥檚 cost budget of 拢411,171.
The case settled on 25 October 2013 after Greencore accepted Courtwell鈥檚 Part 36 Offer for 拢800,000, inclusive of interest. Courtwell鈥檚 offer had not been served until 15 October 2013 and as this was less than 21 days before the start of the trial, CPR 36.10(4) applied meaning that the court was not bound to assess costs on the standard basis.
On 1 November 2013 Courtwell issued an application for indemnity costs and for an order that it could depart from its costs budget. Courtwell argued that it was entitled to indemnity costs on four grounds:
- Greencore鈥檚 failure to comply with the protocol
- Greencore鈥檚 failure to mediate
- Greencore鈥檚 pleading of a no loss defence; and, (iv) the conduct of Greencore鈥檚 experts.
The Issue
Was Courtwell entitled to an order for indemnity costs against Greencore on some or all of the grounds alleged?
The Decision
No. Courtwell had not demonstrated the high degree of unreasonableness required to justify indemnity costs. On the evidence, both sides were at fault for the non-compliance with the Protocol and the failure to mediate and it was unlikely that a mediation would have succeeded in any event.
On the third point, the no loss defence was not so implausible or hopeless that no legal and professional team should have put it forward.
Finally, where Courtwell鈥檚 allegations of misconduct by Greencore鈥檚 experts were disputed and had not been tested through oral evidence, it was impossible to come to a sensible and fair conclusion as to whether or not Greencore鈥檚 experts had behaved so unreasonably as to justify an order for indemnity costs.
Commentary
Where a Part 36 offer is accepted, costs will usually be assessed on the standard basis if not agreed but under CPR 36.10(4) if the offer is made or accepted less than 21 days before the start of the trial, assessment of costs on the standard basis is not mandatory. It was therefore open to Courtwell to apply for indemnity costs if they could show that Greencore鈥檚 behaviour and conduct in the dispute and proceedings had been unreasonable to a high degree.
The judge had little hesitation in dismissing Courtwell鈥檚 application, concluding that both parties had shared responsibility for the failure to mediate and for non-compliance with the protocol. The judge considered that the no loss defence was arguable on the facts and thought it unlikely that Greencore鈥檚 experts and legal advisers could all have acted unprofessionally or dishonestly when advocating this defence. Courtwell鈥檚 extensive allegations against Greencore鈥檚 experts were disputed and had not been tested by cross-examination, so the Judge was not satisfied that there was any compelling evidence of sufficiently poor conduct on the part of Greencore鈥檚 representatives so as to justify an indemnity costs order.
Whilst the exchanges between experts, including at experts鈥� meetings, are usually without prejudice, the judge warned that this did not in itself excuse dishonesty, unprofessional conduct, or other unreasonable behaviour by the participants.
The judge expressed doubts over the proportionality of Courtwell鈥檚 application in circumstances where what should have been a simple dispute had required the involvement of Leading Counsel and generated 12 detailed witness statements.
The aggregate costs of both parties on the indemnity costs application exceeded 拢100k and the Judge said that had the application succeeded he would have reduced Courtwell鈥檚 拢42k costs claim in order to reflect his serious concerns about the overall lack of proportionality.
The judge also suggested that parties should think twice about making indemnity costs applications that rely heavily upon evidence that is materially challenged by the opposition and which has not been tested in court.
James Mullen
Fenwick Elliott LLP
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