Ong & Ors v Ping

On an assessment of costs on the standard basis, separately represented parties may recover costs of separate representation only to the extent that those costs were reasonably incurred and proportionate. The court must consider whether separate representation was reasonably necessary to present the parties’ case and protect their interests. Where representation became unnecessary, the costs judge should assess the costs that would reasonably have been incurred using one firm, rather than automatically disallowing all costs charged by one firm. Any doubt about reasonable incurrence or proportionality is resolved in favour of the paying party.

Following an earlier judgment concerning a discretionary trust of a London house, the court dealt with consequential applications for disclosure and costs. The children sought disclosure concerning the trust property, its traceable proceeds and the estates of Madam Lim. The court also considered whether Jane and the children, who had been represented by different firms of solicitors while pursuing aligned claims, could recover the costs of both firms.

The central issues were the proper basis for disclosure and whether separate representation was reasonably necessary for the purposes of recoverable costs.

1. Disclosure. The court exercised its jurisdiction to order a trustee to disclose trust documents to a discretionary beneficiary and its power to order disclosure for the purpose of ascertaining the whereabouts of trust property or traceable proceeds. The powers ancillary to a freezing order, ancillary to execution of a judgment, and under CPR Part 31 were not applicable or were premature in the circumstances.
2. The Defendant was ordered to disclose documents under his control concerning the proceeds of sale of the house and their traceable proceeds, to provide a witness statement identifying the searches undertaken, and to disclose documents and information concerning his administration of Madam Lim’s Singapore and England and Wales estates. Documents held by Madam Lim in Singapore were within his control for these purposes. The court did not require him to become personal representative of estates outside those jurisdictions.
3. Separate representation and costs. The approach in Lewis v Daily Telegraph Ltd (No. 2) [1964] 2 QB 601 did not require the Claimants to be restricted to one set of costs. Any procedural irregularity in their separate representation had been waived by the Defendant, so far as it concerned his rights, and the representation had caused no difficulty at trial.
4. Under CPR 44.3 and 44.4, the relevant question was whether the costs of separate representation were reasonably incurred and proportionate. Parties must have an opportunity to explain why separate representation was justified. The assessment may be conducted by the costs judge, although the trial judge may determine the issue where it has been fully argued and the judge is better placed to assess it.
5. Separate representation was reasonably justifiable up to and including 20 November 2012, when the Claimants served a single pleading on the Trust Issue. From 21 November 2012 it was not reasonably necessary because their interests were aligned and there was no practical conflict. The costs judge was therefore directed to assess the earlier costs without further direction, and thereafter to assess the costs which would reasonably have been incurred had one firm acted, allowing appropriate non-duplicated work from both firms.
6. The parties were directed to make written submissions on the remaining costs and payment-on-account issues within the specified periods.

First-instance consequential judgment following the court’s earlier judgment on the trust issue, cited in the judgment as [2015] EWHC 1742 (Ch) .