Haigh v Westminster Magistrates Court & Or

On a retrospective application to extend time, the court applies the same principles as on an application for relief from sanctions. Under [2014] EWCA Civ 906, the court must assess the seriousness and significance of the default, the reason for it, and all the circumstances, including efficiency, proportionality and compliance with court orders. In wasted costs proceedings, timely compliance is especially important because those proceedings are ancillary and should be conducted summarily. A delay may be serious or significant even without an unless order. Where the default is inadequately explained and the costs sought are disproportionate to the sum at stake, the appropriate response may be refusal of the extension and striking out of the wasted costs application.

The claimant had brought judicial review proceedings challenging a costs order made by Westminster Magistrates’ Court. After the substantive claim was dismissed, the first and second interested parties pursued wasted costs proceedings against the second respondent, Mr Jones QC.

The court had directed the interested parties to file an outline submission and draft hearing-bundle index by 20 October 2017. They failed to comply and sought a retrospective extension. Mr Jones applied for the wasted costs proceedings to be struck out as an abuse of process, relying on that default and earlier delay. The central issues were whether an extension should be granted and whether the wasted costs proceedings remained proportionate.

1. Applications. The interested parties’ application for an extension of time was refused. Mr Jones’s application to strike out the wasted costs proceedings was granted.
2. Applicable principles. Although the order contained no express sanction, the principles governing relief from sanctions applied to a retrospective extension of time: Altomart Ltd v Salford Estates (No.2) [2014] EWCA Civ 1408; [2015] 1 WLR 1825. The court applied the three-stage approach in Denton v T.H. White Ltd [2014] EWCA Civ 906; [2014] 1 WLR 3926: assess the seriousness and significance of the default, consider the reason for it, and evaluate all the circumstances so as to deal justly with the application.
3. Seriousness and significance. The two-week delay was serious or significant. The proceedings concerned an allegation of improper conduct and were satellite proceedings ancillary to the substantive judicial review. Compliance and expedition were therefore particularly important. The absence of an unless order did not make the default insignificant.
4. Reason for default. Work pressure affecting leading counsel and the solicitor was an unsatisfactory explanation. The interested parties had already received an extension and had known since the Stage 1 hearing that the documents would be required. Their conduct suggested a cavalier approach to court directions.
5. All the circumstances and proportionality. The amount actually in issue appeared to be £10,000, rather than the approximately £35,000 initially indicated. Had the lower figure been known, the court would have regarded the proceedings differently. Given the costs already incurred and the further costs of a Stage 2 hearing, the wasted costs exercise had become plainly disproportionate. Cumulatively, the seriousness of the breach, the inadequate explanation and the disproportionate nature of the proceedings required refusal of the extension and strike-out.

The judgment records that the substantive judicial review had previously been dismissed by the same Divisional Court in [2017] EWHC 232 (Admin), with outstanding matters addressed in [2017] EWHC 559 (Admin). This judgment determined the subsequent procedural applications concerning the wasted costs proceedings.