A multi-disciplinary team of lawyers at law firm Legal Studio, led by property litigation specialist Matt Pugh and supported by leading silk Tim Ward QC of Monckton Chambers and the highly rated junior Andy Creer of Hardwicke, recently acted for Red & White Services Ltd in the widely reported case Red and White Services Ltd v Phil Anslow Ltd and Anor [2018] EWHC 1699 (Ch).
The case concerned a dispute over the use of bus bays at Cwmbran Bus Station, which has since been resolved, and involved complex and novel issues of competition law and property law.
The reported decision concerns the setting of cost budgets by Mr Justice Birss at a Costs and Case Management Conference in May 2018. Directions had been agreed between the parties prior to the CCMC, but the issue of costs budgets was contentious. The case was expected to involve complex expert evidence from economists, extensive disclosure, a substantial number of witnesses and a 10-day trial. The Defendant’s budget totalled £288,000 including £103,000 of incurred costs, whereas the Claimants and the Third Party’s budgets were around £1.5m each, with the Claimant’s incurred costs around £100,000 and the Third Party’s around £350,000.
Mr Justice’s Birss’ approach to budgets was somewhat unusual. Rather than going through the budgets phase by phase (or indeed in any detail), he simply looked at the totals and took the view that both the Claimant’s budget and the Third Party’s budget totals were disproportionately high when compared to the subject matter of the dispute. He also commented that the Defendant’s budget was unrealistically low and not a good guide but declined to comment as to whether that the Defendant had intentionally pitched its budget low as a tactic. We submitted that they had.
In approaching proportionality, instead of setting phase totals, Birss J decided to allow the Claimant and the Third Party to spent up to a further £800,000 each and to allow those parties the flexibility as to whether they sought to cut costs on disclosure, expert evidence, witness evidence, the trial or a combination of those phases. This may have been because at the time of the CCMC it would have been very difficult for the judge to make an informed decision as to whether, for example, an AI platform was required for e-disclosure.