Kew Green Group Limited & Anor v Jamerson Lamb & Ors

On consequential matters following a strike-out application, costs should reflect the substance and practical effect of the outcome. Where neither side has clearly succeeded, the court may make no order as to the application costs. A party who succeeds in striking out part of a claim is in principle entitled to the costs of litigating those parts, but only where those costs are sufficiently identifiable and materially attributable to them. Costs of an abandoned disclosure application may be awarded on the standard basis, while indemnity costs require conduct outside the ordinary and reasonable range.

This supplemental judgment concerned consequential matters after the court’s main judgment on an application by four defendants to strike out or obtain summary judgment on substantial parts of claims brought by their former employers. The main judgment held that specified parts of the particulars of claim were bound to fail and should be struck out.

The remaining issues concerned whether one paragraph should instead be amended, the costs of the strike-out application, the costs of an abandoned specific-disclosure application and related abandoned strike-out issues, costs attributable to the struck-out allegations, interim payment, set-off and trial directions.

1. Strike-out. The court rejected the proposed amendment to paragraph 42 of the particulars of claim. Changing the date from November to August 2019 was not a modest amendment and would change the case. Paragraph 42 was therefore struck out.
2. Strike-out application costs. Neither side had clearly succeeded. The defendants had eliminated a free-standing post-employment fiduciary duty and other allegations, but major claims concerning confidential information, solicitation of employees and continuation or renewal of hotel management agreements remained for trial. The effect on disclosure, evidence, case management and costs budgets was likely to be minimal. The appropriate order was therefore no order as to the costs of the strike-out application.
3. Specific-disclosure application. The defendants had abandoned the application and were ordered to pay the claimants’ costs on the standard basis. The court declined indemnity costs. The conduct relied on did not take the proceedings outside the ordinary and reasonable range, and the court drew no inference that the application had been brought as a delaying tactic.
4. Struck-out allegations. In principle, a successful party may recover costs of the action attributable to struck-out parts of the claim, not merely the application costs. Here those costs were not readily severable and were unlikely to have been materially increased by the struck-out allegations. No separate award was made.
5. Assessment and directions. Costs items were to be attributed, where possible, between the disclosure application and strike-out application at detailed assessment after trial. No interim payment was ordered. The defendants’ liability for disclosure-application costs could be set off against later costs or other liabilities. Trial was directed in a window from 9 to 30 April 2024.

Not an appeal. The judgment determined consequential matters following the court’s main judgment, [2023] EWHC 1289 (KB), in the same proceedings.