Mex Group Worldwide Limited v Adam Duthie & Anor

Costs following a substantially successful strike-out and summary judgment application are determined by identifying the overall winner and making a broad-brush adjustment for issues on which the other party succeeded. Weak arguments that were properly left for trial do not ordinarily justify a further reduction where the successful party defeated the application on the stronger issues. An adjournment caused by the court’s unsuccessful attempt to facilitate settlement will generally be costs in the case where neither party behaved reprehensibly. An interim payment on account should reflect both the likely liability and uncertainty about detailed assessment, including disputed items.

The claimant sued its former solicitor and his service company concerning alleged breaches of confidence and wrongful retention of client documents. The claimant applied to strike out parts or all of the defence and counterclaim and sought summary judgment.

In the reserved judgment, [2025] EWHC 1360 (KB), the application was dismissed save for summary judgment on wrongful retention of documents and confidential information. The court adjourned the remedy for that wrongdoing. The defendants were mainly successful, and the parties disputed responsibility for costs, the effect of the claimant’s partial success, the costs of an adjourned hearing and the amount of any payment on account.

1. Adjourned hearing. The claimant’s allegation that the defendants had cynically misled the court or lawyers to manufacture an adjournment was rejected. The defendants had reacted to an adjournment made on the court’s initiative and reasonably concluded that a costs-only adjudication could not work because it necessarily required an assessment of the merits. No reprehensible conduct was established. The costs of and occasioned by the adjournment were therefore ordered to be costs in the case.
2. Costs of the application. The defendants were the mainly successful parties. No reduction was made for arguments concerning disclosure duties, de minimis disclosure or waiver of privilege. Those issues were properly left for trial in the context of stronger iniquity arguments, and the claimant had failed to defeat the application summarily on them.
3. A reduction was nevertheless appropriate for the claimant’s success on wrongful retention of documents and confidential information. Applying a broad-brush approach, the defendants’ costs were reduced by 25 per cent. The court modestly increased the reduction because the wrongfully retained documents had been used by the first defendant in resisting the application.
4. Payment on account. Starting with costs of £174,000, the 25 per cent reduction produced £130,500. A payment of 70 per cent of that figure, £91,350, appropriately balanced uncertainty about detailed assessment and the defendants’ present out-of-pocket position.
5. The reduced costs were payable on the standard basis, subject to detailed assessment if not agreed. The claimant was ordered to pay £91,350 on account within 28 days.