Joanne Laura Brierley v Christopher Howe & Anor

The court dealt with costs following the first respondent's successful strike out application. Applying the general rule in CPR 44.2(2)(a), the judge found no good reason to depart from the usual costs order in favour of the successful party and ordered the petitioner to pay the first respondent's costs of and occasioned by the strike out application.

The judge held that summary assessment was appropriate and that London grade 1 was justified for the respondent's solicitors/counsel given the technicality of the application. Having heard submissions on quantum, the court summarily assessed costs at 30,000 plus VAT.

The judge refused the petitioner's request to defer consideration of timing of payment to a later hearing, observing that the petitioner had ample time to file evidence of means but had not done so. Instead the court ordered payment within 21 days subject to a narrowly drawn "rider" permitting the petitioner to issue, within a short prescribed window, a fully evidenced application for a stay or extension; if such an application is issued in time, the payment deadline is extended until final disposal of that application or further order.

The court took into account the petitioner's litigation choices, the fact she had retained a large legal team and had been warned pre-presentation about the need to keep s 994 allegations within legitimate bounds. The judge rejected the argument that the petitioner should be immune from interim costs liability ahead of trial.

This is a first instance judgment concerning costs after the hearing of a strike out application brought by the first respondent in proceedings concerning 36 Bourne Street Limited under the Companies Act 2006 (notably section 994 and earlier section 306 proceedings). The strike out challenge had succeeded earlier; the hearing reported here determined costs, quantum and timing of payment.

Nature of the application: the court was asked to determine (i) whether the respondent's costs should be summarily assessed or dealt with by detailed assessment; (ii) the appropriate quantum and grade for solicitors and counsel; and (iii) whether payment should be ordered immediately, deferred, or subject to a stay/extension pending evidence of the petitioner's means.

Issues framed:

• Application of the general costs rule in CPR 44.2(2)(a) and whether an alternative order was justified;
• Whether summary assessment was proportionate and the correct approach to quantum including appropriate London grade and counsel fees;
• Whether the petitioner had shown good reason to defer payment or to be allowed a later application to stay/extend the payment deadline, and what evidential material was required;
• Whether the petitioner's conduct and prior warnings about the permissible scope of a section 994 petition affected the costs outcome.

Court's reasoning and conclusions: the court concluded the respondent was plainly the successful party and the CPR general rule applied. Summary assessment was proportional given the hearing length (approximately one day). The judge accepted that London grade 1 was appropriate for the respondent's advisers given the technical nature of the strike out application and recognised the specialist status of the respondent's barrister. After considering submissions (including objections to relative counsel fees) the costs were summarily assessed at 30,000 plus VAT.

The petitioner sought deferral of payment or postponement of the issue to a case and costs management conference; the judge refused those requests because the petitioner had ample time to file evidence of means and had not done so, and because deferral until the CCMC would be prejudicial and inefficient. The court imposed a 21-day payment deadline but incorporated a limited rider allowing the petitioner to issue, within a prescribed short period, a fully evidenced application for a stay or extension; if made in time, the payment deadline is extended until resolution of that application or further order.

The judge recorded that the petitioner had retained a large legal team (including senior King's Counsel and junior counsel), that her own costs for the strike out were approximately 34,000 inclusive of VAT and that the respondent's schedule was about 45,000 inclusive of VAT. The petitioner had been warned in correspondence as early as 17 February 2023 about the need to identify relevant conduct for a s 994 petition but had persisted with allegations the court found not justiciable under s 994. The judge considered the petitioner's litigation choices and prior conduct material to the costs decision.

The court took into account authorities and guidance cited to it (including Hussain and Anor v Ahmed [2021] EWHC 2213 (Ch), Argus Media Limited v Halim [2019] EWHC 215 (QB), Crystal Decisions (UK) Limited [2008] EWCA Civ 848 and paragraph 20 of the Guide to the Summary Assessment of Costs 2021) but held they did not require the court to refuse to set a deadline for payment. The judge also observed potential Article 6 implications if a successful defendant were prevented from enforcing costs orders.

The court ordered that the petitioner pay the first respondent's costs of and occasioned by the strike out application, summarily assessed at 30,000 plus VAT, to be paid within 21 days. The order was subject to a rider permitting the petitioner to issue, within a short prescribed window, a fully evidenced application for a stay or extension; if such an application is made in time, the payment deadline is extended until final disposal of that application or further order. The rationale was that the first respondent was the successful party under CPR 44.2(2)(a), summary assessment was proportionate, London grade 1 was justified, and the petitioner had not provided timely evidence of means to justify deferral.