Mark William Lee & Anor v BDB Pitmans LLP

Where substitution is ordered conditionally, the resulting declaration should be framed so that it can operate when the relevant liability issue is determined, whether at a preliminary trial or after the full trial. A respondent to the substitution application cannot re-argue that application later. Permission to appeal should be granted where appropriate, but the conduct and sequencing of related appeals is ordinarily for the Court of Appeal. Costs of amendments may be costs in the case where the amendments caused little wastage and were prompted by the opposing party’s late clarification of its position. Substantial costs following a lengthy hearing should ordinarily be subject to detailed assessment, with a payment on account reflecting the likely level of recoverable costs.

This was a consequentials judgment following judgment on two applications. Broadfield sought summary judgment on the claimants’ claim. The claimants sought permission to amend their Particulars of Claim and, if necessary, to substitute Pitmans for Broadfield.

The court determined the form of declaration concerning conditional substitution, granted permission to appeal the substitution order, declined to postpone the appellants’ notice pending a related appeal, and resolved the parties’ disputes about amendment costs, assessment of costs, and payment on account.

1. Declaration. The substitution declaration should cover the possibility that the relevant issues concerning Broadfield’s assumption of liability would be determined as a preliminary issue or only after a full trial. Pitmans, as respondent to the substitution application, would have no basis to re-argue that application. The court therefore adopted wording proposed by the defendants.
2. Permission to appeal and case management. Permission to appeal the substitution order was granted because the same issue was listed for consideration by the Court of Appeal in Office Properties. The court declined to postpone the deadline for Broadfield and Pitmans to file an appellants’ notice. The case management of appeals involving overlapping parties and legal issues was for the Court of Appeal. Postponement would also have excluded the claimants from participating in the related appeal while the other parties remained represented.
3. Amendment costs. The usual order requiring the amending party to pay the costs of and occasioned by amendments was inappropriate. The additional drafting would largely have been required in any event, there was virtually no wastage or duplication, and the amendments followed Broadfield’s late failure to state its position on liability. The amendment costs were therefore costs in the case.
4. Assessment and payment on account. The costs of the substitution and summary judgment applications were ordered to be subject to detailed assessment if not agreed. Summary assessment was disproportionate given the length of the hearing, the substantial sum at stake, and the likely need for a further hearing. Broadfield was ordered to pay £120,000 on account, representing 70% of the claimants’ incurred costs.

The judgment records that permission to appeal the substitution order was granted. No appellate decision is stated.