Robin Simon Graham Makin (formerly known as X) v The Transcription Agency LLP & Anor

The unsuccessful party will ordinarily pay the successful party’s costs, but the court may make a different order after considering all the circumstances, including party conduct. Indemnity costs are justified where conduct takes the case out of the norm, assessed in a fact-sensitive way and by reference to the overall requirement to deal with the case justly. Persistent, aggressive and unfounded allegations of dishonesty or professional misconduct may meet that threshold. Where costs are subject to detailed assessment, the court should ordinarily order a reasonable payment on account unless there is good reason not to do so. The receiving party’s costs budget may provide a sensible starting point, while the court may use the payment-on-account jurisdiction to reduce later satellite litigation.

The claimant brought proceedings against the transcription provider and a High Court Master after both relied on the judicial exemption in refusing subject access requests for personal data. Following a three-day trial, the claim was dismissed: [2023] EWHC 1092 (KB). The court then directed a further hearing to determine costs.

The defendants sought their costs on the indemnity basis and interim payments on account. The claimant argued that there should be no order for costs, or that costs should be assessed on the standard basis. The issues were whether costs should follow the event, whether the claimant’s conduct was out of the norm, and what interim payments were appropriate.

1. Costs following the event. Under CPR 44.2, the unsuccessful claimant was to pay each defendant’s costs. There was no misconduct by either defendant, the Government or its lawyers, and no sufficient reason to depart from the general rule.
2. Indemnity costs. The claimant’s conduct was out of the norm. In relation to the first defendant, he aggressively pursued unfounded allegations concerning insurance, confidentiality, disclosure and the professional conduct of its solicitors, and drew that defendant into disputes unrelated to the pleaded claim. In relation to the second defendant, he repeatedly insinuated dishonesty, interference with justice, lack of independence and improper Government influence, despite having no evidential basis and despite an earlier order determining that she was entitled to representation by the Treasury Solicitor. The allegations were serious, wide-ranging and persistently maintained. Indemnity costs were therefore appropriate.
3. Retainer and indemnity issues. Whether the second defendant had a valid retainer or was indemnified was a matter for the costs judge on detailed assessment. The court nevertheless had no reason to doubt the representation that she was backed by a Crown indemnity, including capacity to repay any wrongly ordered payment with interest.
4. Payment on account. CPR 44.2(8) required a reasonable sum on account unless there was good reason otherwise. It was not just to delay payment so that the claimant could relitigate an issue already determined. Early payment would narrow the detailed assessment dispute and reduce further satellite litigation. The court ordered 90% of budgeted costs and 50% of incurred costs for each defendant.