Abbotsley Limited & Anor v Pheasantland Limited & Ors

The court may determine costs before final judgment where wasted court time is clearly attributable to a party’s conduct, even though broader questions about trial length and written submissions should await the end of the trial. A party’s conduct may justify an indemnity costs order where it causes identifiable and unnecessary disruption or delay. The paying party’s VAT status does not determine whether VAT is recoverable; VAT is excluded only where the receiving party can recover it. A discrete costs decision should ordinarily be challenged within the ordinary appeal period rather than held over until final judgment.

Pheasantland Limited sought additional costs from the claimants in ongoing litigation. It relied on delays and wasted court time caused by the conduct of Vivien Inez Saunders, the second claimant and sole director and shareholder of Abbotsley Limited.

The application was informal and concerned five additional days of refreshers and four days for written submissions. The court distinguished general issues requiring assessment after the fifteen-day trial from specific incidents said to have caused wasted time, including interruptions, repeated lifting of the evidence embargo, further instructions and late or disputed evidence.

The central issues were whether the court had jurisdiction to make an additional costs order before final judgment, whether the identified conduct justified such an order, the appropriate basis and amount of assessment, VAT, and whether time for seeking permission to appeal should be extended.

1. Jurisdiction and timing. The court had a wide discretion to order costs under section 51 of the Senior Courts Act 1981 and CPR 44.2. It was inappropriate to determine at this stage the general issues concerning the need for written submissions or the length of witness evidence, since those matters could properly be assessed at the end of the trial. Clearly identifiable delays attributable to conduct could, however, be determined immediately (paras 6–7, 11–16).
2. Conduct and wasted costs. The court found that eleven incidents were directly attributable to Ms Saunders and had wasted court time or delayed the proceedings. The incidents included disruptive behaviour, emotional interruptions, repeated requests to lift the evidence embargo to obtain instructions or advice, and delays concerning evidence. The total wasted time was approximately seven and a half hours, or one and a half days (paras 15, 17–18).
3. Amount and basis. At a reasonable and proportionate rate of £3,500 per day, the wasted costs were assessed at £5,250 and ordered on the indemnity basis. VAT at 20 per cent, amounting to £1,050, was recoverable. The paying party’s lack of VAT registration was irrelevant because VAT is not recoverable only where the receiving party can recover it itself (para 18–19).
4. Order and appeal. Ms Saunders was ordered to pay £6,300 to Pheasantland within 14 days. There was no justification for extending the ordinary 21-day period for seeking permission to appeal until after final judgment. Any application for permission to appeal the discrete costs determination should be made within the applicable period (paras 19–21).