Co-Operative Group Ltd v Birse Development Ltd

Where an amendment application fails because the claimant cannot satisfy a condition requiring adequate particulars, the court may order the claimant to pay the costs of the application, including costs incurred on earlier stages that have effectively been wasted. Summary assessment may be inappropriate where the costs overlap with related applications, appeals, expert work or consequential costs that will require detailed assessment. In such circumstances, the court may make an interim payment on account of costs. A party seeking summary assessment must not assume that filing a statement of costs, without a formal application, requires the court to assess costs summarily.

The judgment concerned costs following the claimant’s unsuccessful attempt to re-amend its particulars of claim to maintain a claim for replacement costs relating to warehouse floors. Earlier stages included an application before His Honour Judge Davis, an appeal decided by the Court of Appeal in May 2013, and further applications before the Technology and Construction Court. The re-amendment application was ultimately dismissed on 2 August 2013 because the claimant had not provided adequate particulars and had failed to comply with the conditions imposed when permission was previously given.

The court had to determine responsibility for the costs, whether those costs should be summarily assessed, and whether interim payments on account were appropriate.

1. Costs responsibility. The claimant was ordered in principle to pay the defending parties’ costs of and occasioned by the re-amendment applications. Although the claimant had advanced the stronger arguments at the earlier June hearing, those arguments depended on the claimant providing adequate particulars. Its subsequent failure to do so meant that the expenditure incurred in that stage had effectively been wasted.
2. Exception for later submissions. The defending parties were not to recover the costs of and occasioned by written submissions on new arguments raised after the draft judgment, identified in paragraphs 17–20 of the earlier judgment. Those costs were to be paid by the relevant defending parties to the claimant on the standard basis.
3. Summary assessment. The court considered summary assessment possible because the individual hearings lasted less than a day. It declined to undertake it because the costs were intertwined with earlier applications, the Court of Appeal proceedings, possible expert costs, preparation and consequential costs. A summary assessment risked confusion and could fail fairly to compensate the successful parties.
4. Interim payments. An interim payment on account was the appropriate course. Birse Development Ltd and Stuarts Industrial Flooring Ltd were each awarded £50,000 on account of costs, inclusive of VAT subject to later assessment. Jubb & Partners’ unchallenged costs were summarily assessed at £25,630.50, payable within 14 days.

The judgment records that the litigation had previously been before His Honour Judge Davis and the Court of Appeal, which decided an appeal in May 2013. The present costs decision was made by the Technology and Construction Court after the case was transferred to that court. The citation of the earlier Court of Appeal decision is not stated.