Agents' Mutual Ltd v Gascoigne Halman Ltd (t/a Gascoigne Halman)

A consent order concerning reserved costs must be construed in its surrounding circumstances. Where the parties compromise the costs consequences of an adjournment by agreeing that there be no order as to costs, costs incurred preparing the adjourned issue may fall within that compromise. The court may have jurisdiction under rule 3.1(7) of the Civil Procedure Rules 1998 to vary an order where a discrete costs issue was overlooked and the application is prompt, but that issue need not be decided where the application fails on construction of the earlier order.

The claimant and defendant were engaged in proceedings involving competition issues transferred to the Competition Appeal Tribunal. The defendant had obtained an order requiring the claimant to provide security for costs, with the remaining security application adjourned. The parties subsequently agreed an order reserving certain costs and providing that there be no order as to costs arising from the adjournment.

After a later hearing, at which the claimant was ordered to provide further security and each party bore its own costs, the defendant applied to vary the later order. It sought costs incurred preparing arguments about its entitlement to security before the earlier hearing. The central issue was whether those costs had already been compromised by the earlier consent order.

1. Application dismissed. The defendant was ordered to pay the claimant’s costs of opposing the application. Any observations on the court’s jurisdiction to vary the order were unnecessary to the result.
2. The earlier order had to be construed against its surrounding circumstances. The defendant had argued before Sir Kenneth Parker that costs had been wasted because the claimant changed its position on the morning of the hearing and accepted that it should provide security. The defendant had indicated that it would pursue those costs with an estimate.
3. On the following day, however, the parties agreed an order providing that there be no order as to costs as part of the overall compromise. The costs now sought were part of the work said to have been wasted by the adjournment. They therefore fell within paragraph 24 of the Parker Order and could not be recovered separately under paragraph 23.
4. The court did not need to determine the claimant’s argument that the application was outside the jurisdiction to vary an order under rule 3.1(7) of the Civil Procedure Rules 1998. The judge stated, obiter, that he would not have rejected the application on that basis, given that it concerned a discrete costs issue omitted by oversight and had been made promptly, with reference to Tibbles v SIG plc [2012] EWCA Civ 518.
5. The court nevertheless criticised the course adopted. The issue should have been raised when costs were argued at the September hearing. Pursuing it later by an application to vary generated unnecessary satellite costs.