Richard v The British Broadcasting Corporation (BBC) & Anor

At a costs management conference, a court should exercise caution before commenting on incurred costs. The exercise is summary and based on limited information. A comment is discretionary, is not a finding of fact, and is not binding on the costs judge at detailed assessment. It should be specific and well founded, and should be made only where it has practical utility. Costs budgeting is not directly comparative: different budgets may reasonably reflect different assessments of the work required. For the purpose of lifting the cap on costs management work, “exceptional” means significantly out of the norm, rather than wholly exceptional. Unexpected work alone is insufficient, but a combination of unusual circumstances may satisfy the threshold.

The claimant brought proceedings against the BBC and the Chief Constable of South Yorkshire Police. The judgment concerned a costs management conference directed by Mann J on 5 May 2017. The immediate issues were whether the court should comment on the claimant’s incurred costs, what figures should be allowed for specified budget phases, and whether costs incurred in preparing the budget and dealing with costs management were exceptional so that the cap in Practice Direction 3E paragraph 7.2 could be lifted.

1. Incurred costs. The power to comment on incurred costs under CPR 3.15 and Practice Direction 3E was discretionary and broad. Any comment had to be considered in the context of the summary nature of costs management and the limited information available. A comment would be taken into account at detailed assessment under rule 3.15(4), but would not bind the costs judge, who would have fuller information and could disagree with it or put it aside.
2. The court should approve totals for future costs by budget phase, rather than conduct a detailed assessment in advance. It should consider whether budgeted costs fell within the range of reasonable and proportionate costs. Incurred costs could not meaningfully be characterised as unreasonable or disproportionate merely because they appeared substantial. A general or anodyne comment risked being given disproportionate weight at detailed assessment and offered no real benefit. The request for a comment was therefore rejected.
3. Budgeted phases. In assessing the witness statement phase, the court took account of the case’s importance, public interest, complexity, High Court docketing and listing category, together with the inclusion of counsel’s review and conferences in that phase. £115,000 was allowed. For trial preparation, 440 hours of solicitors’ time was excessive; £95,000 was allowed. For the trial phase, the budgets were not directly comparative, and the number of fee earners attending was excessive. £310,000 was allowed.
4. Exceptional costs management work. “Exceptional” meant significantly out of the norm, not wholly exceptional. Unexpected further work alone would not suffice. Here, the preparation of two budgets on an assumed split trial, subsequent redrafting after adjournment of costs management, and the BBC’s rejected request for a comment, taken together, were exceptional. The cap was lifted.

The judgment records that the costs management conference had been directed by Mann J’s order dated 5 May 2017. No appeal history is stated.