Peak Construction (London) Ltd v Savva & Ors

In managing interlocutory applications, the court may extend time for compliance where a short extension is proportionate, while taking account of delay and the history of compliance. A penal notice may properly accompany an order requiring disclosure where compliance remains possible and enforcement issues can be dealt with separately if necessary.

Indemnity costs require the case to have taken itself out of the norm. Non-compliance with an order does not, by itself, justify indemnity costs where the alleged misconduct is not sufficiently connected with the applications being determined.

The claimant sought an unless order arising from incomplete compliance with an earlier order made by Snowden J, particularly concerning disclosure of bank statements. The defendants sought an extension of time to file their defence. The claimant also had an application for default judgment, but did not pursue it at the hearing and sought an adjournment.

The court had to determine the appropriate compliance and filing dates, whether a penal notice should be attached, whether the default judgment application should be adjourned, and the basis and amount of costs for the applications being heard.

1. Unless order and disclosure. The time for compliance with the disclosure required by paragraph 18 of Snowden J’s order was extended until 4.00 pm on Friday 4 March. The history of delay and incomplete compliance justified limiting the extension, but a short extension remained proportionate.
2. Penal notice. A penal notice was appropriate. It was normal in the circumstances, had appeared on the earlier order, and formed part of the working out of the freezing order. The notice was not disproportionate because the defendants could comply, while any enforcement issue could be considered at a separate hearing.
3. Defence. The time for filing and serving the defence was extended until 4.00 pm on Friday 4 March. Although the proposed defence was difficult and technical, professional commitments did not justify a lengthy extension. A short extension was proportionate, on the premise that an acknowledgement of service would be filed.
4. Default judgment. The default judgment application was adjourned to Monday 14 March. Further evidence from the claimant was to be filed by noon on 9 March and evidence in response by noon on 11 March.
5. Costs. The test for indemnity costs was whether the matter had taken itself out of the norm, and the court retained a general discretion. The unusual letter and witness statement threatening disclosure to other parties did not sufficiently establish that the applications had been taken out of the norm. Costs were therefore awarded on the standard basis and summarily assessed at £24,000. Costs relating to the adjourned default judgment application were reserved.