Brierley v Howe (Re Costs) [2024] EWHC 2983 (Ch)

Judge Barber’s recent judgment addresses two issues that commonly surface on summary assessment of application costs: 1. the appropriateness of hourly rates charged by solicitors, and 2. the form and substance to be expected of an application to defer the payment of summarily assessed costs.

Key Takeaways:

  1. Whatever the ins and outs of the broader claim, is not unreasonable for the receiving side to expect higher rates for costs of suitably circumscribed and sufficiently complicated interlocutory applications.
  2. Litigants should not expect the court to entertain an 'on the hoof' application for further time to pay - any such application should be made in a timely fashion, supported by appropriate evidence.

Case Background

The dispute concerned 36 Bourne Street Ltd, a prominent antique and design business and the company's ownership and financial liabilities. Brierley (Petitioner) claimed she was entitled to half ownership as part of her role as managing director, a claim disputed by Howe (Respondent).

 Following the Respondent successfully defeating the Petitioner's strike-out application, the court addressed two costs-related issues.

 1. Hourly Rates: Justifying London Grade 1

The court considered whether the Respondent’s solicitors' time costs should be allowed at London Grade 1 rates, instead of London Grade 2, as argued for by the Petitioner. Judge Barber concluded that the strike-out application was "highly technical," warranting the expertise and specialisation reflected in Grade 1 rates. While certain phases of the broader litigation to follow might not demand such rates, the complexity of this specific application justified the higher charges.

 The court also addressed the Petitioner’s objection to the Respondent’s counsel's fees, which exceeded the combined fees of both senior and junior counsel for the Petitioner. The court emphasised the Respondent's counsel’s specialisation in company law and the need for such expertise in addressing the technical aspects of the application; and acknowledged the quality and skill of the legal representation, pivotal in supporting the claim for higher fees.

 2. Deferred Payment Application

The Petitioner sought to defer payment of the costs, citing financial difficulties but without having provided supporting evidence. Judge Barber rejected this request, emphasising the need for procedural efficiency and the overriding objective of litigation. The court highlighted that the Petitioner had ample time to prepare evidence of her means (to be deployed in the event that she lost) but had failed to do so; something that undermined her application.

 The court relied on guidance from prior cases, including Hussain v Ahmed [2021], Argus Media Ltd v Halim [2019], and Crystal Decisions (UK) Ltd [2008], to underline that deferral applications must be substantiated and timely. The court did however include a "rider" in its order, allowing the Petitioner to apply for a stay or extension of the payment deadline within a short timeframe. However, the court declined to postpone the issue until the next case management conference, citing concerns over potential delays and additional costs and pointing out that:

  • It must (or should) have been apparent to the petitioner and her legal team that one possible outcome of the strike out application would be that the petitioner would lose and face a costs order.
  • Had the petitioner wished to prepare evidence of means for the court to take into account on the issue of costs, she had plenty of time in which to do so.
  • If the consequences of losing were quite so impactful (noting that the parties exchanged schedules of costs some months before and so have known of the quantum involved for some time), the petitioner ought reasonably to have prepared evidence of her means in advance of handing down. Preparing such evidence, about her own affairs, would not have been a particularly onerous task.

 The Judge also criticised the Petitioner’s litigation strategy, describing it as defiant and unrealistic. She noted a pattern of pursuing contentious applications without sufficient reflection or constructive engagement, resulting in avoidable costs. This conduct, compounded by the Petitioner’s prior warnings about jurisdictional overreach, weighed heavily against her when assessing costs.

The Petitioner was ordered to pay £30,000 plus VAT in costs within 21 days, with the rider allowing for a stay application.

Brierley v Howe (Re Costs) [2024] EWHC 2983 (Ch)

Judge Barber’s recent judgment addresses two issues that commonly surface on summary assessment of application costs: 1. the appropriateness of hourly rates charged by solicitors, and 2. the form and substance to be expected of an application to defer the payment of summarily assessed costs.

Key Takeaways:

  1. Whatever the ins and outs of the broader claim, is not unreasonable for the receiving side to expect higher rates for costs of suitably circumscribed and sufficiently complicated interlocutory applications.
  2. Litigants should not expect the court to entertain an 'on the hoof' application for further time to pay - any such application should be made in a timely fashion, supported by appropriate evidence.

Case Background

The dispute concerned 36 Bourne Street Ltd, a prominent antique and design business and the company's ownership and financial liabilities. Brierley (Petitioner) claimed she was entitled to half ownership as part of her role as managing director, a claim disputed by Howe (Respondent).

 Following the Respondent successfully defeating the Petitioner's strike-out application, the court addressed two costs-related issues.

 1. Hourly Rates: Justifying London Grade 1

The court considered whether the Respondent’s solicitors' time costs should be allowed at London Grade 1 rates, instead of London Grade 2, as argued for by the Petitioner. Judge Barber concluded that the strike-out application was "highly technical," warranting the expertise and specialisation reflected in Grade 1 rates. While certain phases of the broader litigation to follow might not demand such rates, the complexity of this specific application justified the higher charges.

 The court also addressed the Petitioner’s objection to the Respondent’s counsel's fees, which exceeded the combined fees of both senior and junior counsel for the Petitioner. The court emphasised the Respondent's counsel’s specialisation in company law and the need for such expertise in addressing the technical aspects of the application; and acknowledged the quality and skill of the legal representation, pivotal in supporting the claim for higher fees.

 2. Deferred Payment Application

The Petitioner sought to defer payment of the costs, citing financial difficulties but without having provided supporting evidence. Judge Barber rejected this request, emphasising the need for procedural efficiency and the overriding objective of litigation. The court highlighted that the Petitioner had ample time to prepare evidence of her means (to be deployed in the event that she lost) but had failed to do so; something that undermined her application.

 The court relied on guidance from prior cases, including Hussain v Ahmed [2021], Argus Media Ltd v Halim [2019], and Crystal Decisions (UK) Ltd [2008], to underline that deferral applications must be substantiated and timely. The court did however include a "rider" in its order, allowing the Petitioner to apply for a stay or extension of the payment deadline within a short timeframe. However, the court declined to postpone the issue until the next case management conference, citing concerns over potential delays and additional costs and pointing out that:

  • It must (or should) have been apparent to the petitioner and her legal team that one possible outcome of the strike out application would be that the petitioner would lose and face a costs order.
  • Had the petitioner wished to prepare evidence of means for the court to take into account on the issue of costs, she had plenty of time in which to do so.
  • If the consequences of losing were quite so impactful (noting that the parties exchanged schedules of costs some months before and so have known of the quantum involved for some time), the petitioner ought reasonably to have prepared evidence of her means in advance of handing down. Preparing such evidence, about her own affairs, would not have been a particularly onerous task.

 The Judge also criticised the Petitioner’s litigation strategy, describing it as defiant and unrealistic. She noted a pattern of pursuing contentious applications without sufficient reflection or constructive engagement, resulting in avoidable costs. This conduct, compounded by the Petitioner’s prior warnings about jurisdictional overreach, weighed heavily against her when assessing costs.

The Petitioner was ordered to pay £30,000 plus VAT in costs within 21 days, with the rider allowing for a stay application.