The University of Manchester v John McAslan & Partners Limited & Anor

At a costs and case management conference, the usual order is that costs be in the case. The court may depart from that position where a party’s conduct causes additional costs which would otherwise have been avoided, particularly where an allegation or submission is firmly rejected and generates substantial further evidence and argument.

Where only the additional costs caused by that conduct are recoverable, the court should identify and award those costs without attempting premature summary assessment or ordering payment on account if the necessary counterfactual assessment cannot yet be made.

The claimant, The University of Manchester, brought proceedings against John McAslan & Partners Limited and Laing O’Rourke Construction Limited, with Gifford Global Limited as third party. The judgment concerned costs arising from a Costs and Case Management Conference, following earlier argument about conditions to be attached to the claimant’s permission to adduce expert evidence.

The Second Defendant alleged that the claimant was engaged in expert shopping. The court had rejected that suggestion and held that the claimant’s disclosure concerning the change of experts was sufficient and appropriate. The issue was whether the ordinary costs order should apply or whether a costs order should reflect the additional costs caused by the Second Defendant’s submissions.

1. Costs order. The ordinary position at a Costs and Case Management Conference is that costs be in the case. That position applied to the costs of the First Defendant and the Third Party. Their involvement in the dispute about the claimant’s expert evidence did not justify a different order, since the differences were primarily between the claimant and the Second Defendant.
2. Departure from the default position. The Second Defendant’s position included an allegation that the claimant was engaged in expert shopping. The judge firmly rejected that suggestion. The claimant’s disclosure of 13 September 2022 was sufficient and appropriate to satisfy the requirements applying when a party wishes to change experts. The subsequent correspondence, documentary evidence and lengthy oral submissions generated costs which would not otherwise have been incurred after that date.
3. Scope of recovery. The Second Defendant was ordered to pay the claimant’s costs incurred after 13 September 2022 in dealing with the submission that conditions should be attached to permission to adduce expert evidence. The order was confined to those additional costs rather than all costs of the conference.
4. Assessment and payment. Summary assessment and payment on account were declined. The court first had to determine which costs would have been incurred in any event in preparing for and attending the conference, and which additional costs resulted from the Second Defendant’s submission. The draft order was approved subject to that costs direction.

The judgment records earlier case-management proceedings in the same litigation, including a judgment dated 25 November 2020, [2020] EWHC 3198 (TCC), concerning the particularisation of the claimant’s case, and a further judgment handed down on 2 November 2022. This judgment determined the consequential costs issues.