North Midland Construction Plc v Geo Networks Ltd

Where a party is entitled to apply to strike out a claim for failure to serve Particulars of Claim on time, the costs of that application may be awarded even if the claim is subsequently saved by relief from sanctions. The court may consider the party’s overall conduct, including delay, confusing correspondence and attempts to use an extension obtained in one action to support another. Costs may be summarily assessed where the issues and evidence permit a fair broad assessment.

The judgment determined the costs of two applications by the defendant to strike out claim forms because Particulars of Claim had not been served within the applicable time limits. The claimant sought relief from sanctions in both actions.

Relief was granted in the Project Yellow claim but refused in the Fibrespeed claim, where the claim form was struck out. The remaining issues were whether the Fibrespeed costs should be summarily assessed and who should pay the Project Yellow application costs.

1. Fibrespeed claim. The court was prepared to assess the defendant’s costs summarily. Although some reduction was justified in respect of solicitors’ rates, the number of fee earners and the hours claimed, the work had been complicated by the claimant’s solicitors referring to the wrong claim and failing clearly to explain their actions. The challenge to leading counsel’s fees failed. The costs were summarily assessed at £17,850.
2. Project Yellow claim. The defendant was fully entitled to apply to strike out once the deadline for serving Particulars of Claim had expired. The claimant’s later service of the Particulars, on the day before the hearing, did not remove the costs already incurred. The hearing remained necessary because the claimant still required relief from sanctions.
3. The claimant’s without-prejudice save-as-to-costs offer did not assist. It failed to distinguish between the two actions and, in any event, the defendant had achieved a better result by succeeding in the Fibrespeed application.
4. In deciding liability for the Project Yellow costs, the court could consider the claimant’s overall conduct. This included its delay, inaccurate claim references and attempt to use consent to an extension in Project Yellow to obtain a similar extension in Fibrespeed. The claimant was therefore ordered to pay the defendant’s costs of the Project Yellow applications.
5. The Project Yellow costs were summarily assessed at £18,750.88. In both claims the assessed costs were payable within 14 days of judgment being handed down.