Webb Resolutions Ltd v JV Ltd (t/a Shepherd Chartered Surveyors)

Solicitors and counsel responsible for drawing up a court order must produce a draft that fairly reflects the directions actually given. They must not use the drafting process to obtain terms more favourable to their client. Persistent refusal to agree an accurate order may be unreasonable and, in an appropriate case, contumelious. The opposing party may recover costs unnecessarily incurred as a result, but not costs that would have been incurred in any event. The court may assess and reduce the amount claimed so that the recoverable sum reflects the costs caused by the unreasonable conduct.

The defendants applied for costs arising from the claimants’ solicitors’ refusal to agree an order made at a case management conference on 23 November 2012. The order required the assignment and lending issues to be dealt with first, with valuation issues to follow only if necessary. The claimants’ solicitors initially prepared a materially different order, resisted the defendants’ draft, and continued to withhold agreement after the court indicated the correct form. Agreement was given shortly before a restored hearing on 8 March 2013. The central issues were whether the conduct was unreasonable and what costs, if any, had been unnecessarily incurred.

1. Application granted in part. The claimants’ solicitors had failed to draft an order reflecting the directions actually given at the case management conference. The duty of those responsible for drawing up an order is to record what the court decided, not what the party or its client would prefer. The conduct was unreasonable and verging on contumelious conduct.
2. The defendants were justified in resisting the claimants’ proposed order. The claimants’ asserted difficulty in drafting an order that gave effect to the court’s wishes was not genuine. No application to vary the order or permission to appeal had been made.
3. The defendants could recover costs unnecessarily incurred through the prolonged attempt to obtain agreement to the correct order. They could not recover costs that would probably have been incurred even if the drafting process had proceeded normally.
4. The court accepted sums of £525 for solicitors’ costs and £575 for counsel’s fees as costs incurred in any event. It reduced the solicitors’ recoverable claim from £5,334 to £4,750, while allowing counsel’s claim of £2,175. The claimants were ordered to pay £6,925 within 14 days. The balance of the sum claimed was costs in the case.

The judgment in Webb Resolutions Ltd v E. Surv Ltd [2012] EWHC 3653 (TCC) supported the case-management decision to hear assignment and lending issues before valuation issues, because the actual valuation was irrelevant to the initial question whether the lending was negligent.

The judgment describes an earlier case management conference on 23 November 2012, followed by a restored hearing on 8 March 2013 at which the costs application was determined. No appellate history is stated.