Sprint Electric Ltd v Buyer's Dream Ltd & Ors

A costs management order should be made only where it can usefully assist the just and proportionate conduct of the litigation. Where the great majority of costs has already been incurred, those costs cannot be managed retrospectively and the order may serve little practical purpose. The court may therefore decline to make an order under CPR 3.15 where the litigation can proceed justly and at proportionate cost without one. Questions concerning the recoverability of multiple counsel’s fees may be addressed by the trial judge or on detailed assessment.

The claimant’s proceedings involved an unfair prejudice petition and a source code claim. The issue before the court was whether a costs management order should be made. Counsel for the parties were essentially neutral on the question. By the hearing, the parties accepted that the lion’s share of the costs had already been incurred, although their projected and incurred overall costs were broadly similar.

The court also considered the differing use of counsel between the parties and whether the costs of two counsel might ultimately be recoverable.

1. The court declined to make a costs management order. Under CPR 3.15, the relevant question was whether the litigation could be conducted justly and at proportionate cost in accordance with the overriding objective without such an order.
2. The court concluded that it was too late for a useful costs budgeting exercise. The great majority of the costs had already been incurred, and those costs could not be the subject of a costs management order. Any order would therefore extend, at most, to a relatively small part of the overall costs.
3. The similarity between the parties’ overall projected and incurred costs did not require an order. The court recognised that the costs were differently constituted. One side had one counsel dealing with both matters, while Mr Prescott’s side had different counsel for each matter. This explained why the total counsel’s fees on that side were significantly greater.
4. The court left any question whether engaging two counsel was excessive to the trial judge, who would be better placed to assess it. Counsel’s fees could in any event be considered on detailed assessment.

The application for a costs management order was refused.