Dover Farm Developments Limited & Anor v Philip Paul Smith & Anor

Where competing applications are heard together, the court may depart from the usual costs order if the circumstances make that just. Relevant considerations include the absence of additional hearing burden, the parties’ conduct, whether the applications were properly prepared, the benefit of the hearing in facilitating settlement, and the costs actually and reasonably incurred.

When assessing costs claimed by litigants in person, the court should examine the work item by item. It should compare the litigant-in-person rate with two thirds of the corresponding notional solicitor rate and allow the lower figure, while recognising that a litigant in person may reasonably require more time for a task.

This was a defamation claim in which the defendants applied to strike out the claim and the claimants applied for permission to amend their Particulars of Claim. Both applications were considered at the same hearing before Master Fontaine.

The strike-out application was dismissed. The amendment application was refused because a complete draft amended pleading had not been provided, although permission was given to restore it on service of a proper draft. The claim was later stayed and settled at mediation, leaving the costs of the hearing for determination on written submissions.

The court had to decide the appropriate costs order and assess costs claimed by professionally represented claimants and litigants in person.

1. Disposition. The defendants’ strike-out application had no prospect of success and the claimants were entitled to recover its reasonable costs. The claimants were liable for the defendants’ costs of the amendment application, but the usual order was varied under Civil Procedure Rules 1998, r.44.2(2)(b).
2. In deciding whether to make a different order, the court considered that the applications were heard together, the defendants had not been burdened with an additional hearing, the claimants were professionally represented, and a complete amended pleading had not initially been supplied. The fact that the hearing enabled the parties to agree to a successful court-assisted mediation was also material.
3. The claimants’ costs were assessed by reviewing the work undertaken. Excessive preparation time and counsel’s fees were reduced. Further percentage reductions were made because the costs statement covered both applications and because the hearing helped establish the settlement process.
4. For the defendants’ costs as litigants in person, the court adopted the approach described in the Guide to the Summary Assessment of Costs and the White Book commentary: the claimed time at the litigant-in-person rate should be compared with two thirds of the notional solicitor rate, with the lower amount allowed. The absence of a properly itemised statement justified accepting the claimants’ calculation of £493.32.
5. Setting off the assessed liabilities produced a net sum of £4,104.12 payable by the defendants to the claimants, payable within 28 days of assessment and in any event by 4.00 pm on 1 December 2025.