Gangar, R (on the application of) v Serious Fraud Office

Where a late adjournment causes an otherwise innocent party to incur costs, the court may order the party responsible for the unsuccessful adjournment to pay those costs. A solicitor’s failure to act is ordinarily a matter between solicitor and client and does not, without more, make the opposing party unreasonable for refusing an adjournment. An order for costs should not be made against solicitors without formal notice or an opportunity to show cause.

Barclays Bank applied to vary a restraint order concerning properties, including properties in which David Affleck had an interest. Mr Affleck had been served with notice but sought an adjournment on the afternoon before the hearing, explaining that his solicitors had failed to act. Black J adjourned the application and reserved costs. By the restored hearing, Mr Affleck had obtained new legal advice, no longer opposed the application, and the order sought was made by agreement. Barclays sought £6,229 for the costs of the restored hearing. Mr Affleck invited the court either to decline those costs or to order them directly against his former solicitors.

1. Costs of the restored hearing. Barclays was entitled to recover the costs thrown away by the adjournment. The request had been made only on the afternoon before a hearing fixed several weeks earlier. Barclays also had good reason to attend because a concurrent application concerning Alan White was proceeding. The fact that Black J granted the adjournment did not establish that Barclays had acted unreasonably.
2. Effect of the solicitors’ default. Mr Affleck’s complaint that Chadwick Lawrence had failed to deal with the matter was essentially between him and his solicitors. It did not provide a particular reason why Barclays should have agreed to an adjournment. The subsequent agreement of the same order confirmed that the adjournment had served no useful purpose apart from enabling Mr Affleck to obtain legal advice.
3. Order against solicitors. The court declined to order costs directly against Chadwick Lawrence. Before such an order could properly be made, the firm would require formal notice, or at least an opportunity to show cause. The uncertainty about the professional relationship and other issues between Mr Affleck and the firm also made a direct order inappropriate.
4. Disposition. Mr Affleck was ordered to pay Barclays’ costs of the restored hearing, summarily assessed at £6,229. No order was made concerning the costs reserved by Black J. The order did not prejudice any contractual right Barclays might have to recover costs.

The judgment records that Black J adjourned the earlier hearing on 4 March 2008 and reserved the costs of that hearing. At the restored hearing, the same substantive order was made by agreement. The present court determined the costs of the restored hearing.