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Increase (or otherwise applying to vary) the budget under PD 3E paragraph 7.6 where there has been a “significant development?”

 

Some say No-

 

Elvanite Full Circle v AMEC [2013] 4 Costs LR 612 Coulson J

It is too late to increase a budget once the costs have been incurred, no application for variance has been made and no contingencies have been provided for that cover items of increase.

“The certainty provided by the new rules would be lost entirely if the parties thought that, after the trial, the successful party could seek retrospective approval of the costs incurred far beyond the level of the approved costs management order”

The Governors and Company of the Bank of Ireland and others v Watts Group PLC [2017] EWHC 2472 (TCC) Coulson J. The defendant won and the last approved budget was £384,424. That was the starting point for any consideration of an interim payment , in spite of the fact that costs were now said to be 616,000. However no application had been made to approve an increase in the budget  and per the reasoning in Elvanite, “. It may be too late for such an application anyway,…. I have not ordered assessment on the indemnity basis, so that cannot be a mechanism by which the relevant amount could be increased beyond the approved costs budget  in any event.”

Board of Trustees of National Museums and Galleries on Merseyside v AEW Architects [2014] 1 Costs LO 39 Akenhead J

“No reason to disagree with the principles set out by Mr Justice Coulson” . Nonetheless “… This is, however, a very obvious case, based on my knowledge of the case and case management, for a substantial upward departure from the approved budget. It is most appropriate however to leave the detail of this issue to the costs judge, but, doubtless, he or she can take into account what I have said”.

 

 

Capital for Enterprise Fund ALP v Bibby Financial Services Ltd [2015] 6 Costs LR 1059 HH Judge Pelling

The court does not have jurisdiction to amend an approved budget after trial nor to direct the cost judge to depart from it. Accordingly, an application for an indication whether the judge would have been willing to order an increase in the defendant’s budget had such an application been made, would be refused.

Yeo v Times Newspapers Ltd [2015] 4 Costs LR 687 Warby J

Application to revise the costs budget for an additional £21,000 for incurred costs and £15,440 for estimated future costs. Whilst the rules permit the court to depart from a budget where there is good reason to do so, on the facts, there had not been a” significant development in the litigation” within the meaning of PD 3E 7.6 to justify the approval of either additional incurred costs or prospective costs. Application dismissed.

 

Parish v Danwood Group [2015] 2 Costs LR 435 HHJ Behrens

Application refused to increase the costs budget in respect of disclosure, witness statements and experts.

Excelerate Technology Ltd v Cumberbatch [2015] 2 Costs LO 223 HHJ Simon Brown

Although items of costs had been reasonably incurred which had not been remotely foreseeable (trial overrunning by two days) without it having been practicable or viable to make applications for variance, the court cannot undertake a retrospective increase in the costs budget : all it can do is to record a note of the reasonableness and proportionality of any additional costs for the purposes of detailed assessment.

Car Giant Ltd v The Mayor and Burgesses of the London Borough of Hammersmith [2017] EWHC 464 (TCC) Mr Stephen Furst QC

The court should be slow to give any indication to the parties about the reasonableness of costs incurred in excess of the latest budget following the trial. A court should not seek to “trammel the costs judge’s jurisdiction where the costs judge has much greater experience in such matters than I have”. Accordingly, on application by the receiving party to vary the costs budget upwards, no indication about the reasonableness of the additional costs would be given in respect of the extra work undertaken on producing the trial bundle, the fact that an expert had attended all three days rather than just the first day of trial,  various unbudgeted mediation costs and the attendance of a grade D fee earner at trial.

 

Others say Yes-

Thomas Pink Ltd v Victoria’s Secret [2015] 3 Costs LR 463 Birss J

Application allowed to increase the costs budget by £50,000 after the trial had been completed and after the draft judgment had been provided to the parties, but before formal handing down. The trial had started a day later than anticipated and had included a day in the middle for the preparation of closing submissions. The revised budget was reasonable and the  increase would be approved.

 

Barkhuyson v Hamilton [2016] 6 Costs LR 1217 Warby J

Judgment post trial. The conduct of the defendant, who had litigated the case in a way which had been highly unreasonable, had thereby increased the claimant’s costs beyond the budgeted amount by generating work which had not been anticipated or budgeted for. Accordingly it was appropriate to depart from the budget in five respects ; a two hour PTR would be allowed instead of a telephone hearing; the cost of closing submissions, which had had to be put in writing ; the preparation of a witness statement by the claimant’s solicitor ; the costs arising out of the fact that the trial had been held in Exeter not Truro, and the costs of an adjourned hearing.

Sony v SSH Communications (2006) 6 Costs LR 141 Mr Roger Wyand QC

(NB at the end of trial on a summary assessment requested by the parties and subject to appeal to CA floating 24 July 2018)

Overspending on three phases of the budget : experts’ reports, trial preparations and trial. Although Sony had failed in its duty to seek to vary its costs budget when it had become aware of the overspend on experts, SSH had not been taken by surprise since its budget was higher for that phase, which was a good reason to depart from the budget.  Combining the other two phases,  trial preparation and the trial itself to reduce the overspend on the former  because of an underspend on the latter, would not be permitted. Whilst there had been  no good reason to depart from the budget for the trial preparation phase, the post-trial costs had been greater than could have been foreseen and were the  reason for the overspend. That was a good reason to depart from the budget for the trial phase.

Sharp v Blank [2017] EWHC 3390 (Ch) ***     Chief Master Marsh. Approval to an upwards revision in the budget by £1.5m even though by the time the application had been made, the defendants had spent a large proportion of the money. However, “ It is not appropriate only to take work which has cost more than was originally anticipated and to say that there has been a significant development . There must be something more than merely a modest increase in the anticipated cost of work to amount to a significant development “. Nonetheless, “ The court has jurisdiction when revising a budget under PD 3E. 7.6 to revise a budget taking the last agreed or approved budget as the base reference point….. Interim applications may be significant developments as may the consequences that flow from an interim payment….” [62].

Broom & Broom v Archer  Fraser J [2018] [2018] 3 Costs LO 317. Correcting a mathematical error in the budget where the offending party has not complied with PD 3E by re-filing and re-serving the budget in the form approved or agreed, with the recast figures and annexing to it  the order approving the budgeted costs, is not a “significant development” permitting the making good of the mathematical error. However,    amendments to the pleadings by the defendants , meaning that the claimants needed to amend their  Particulars of Case significantly to include further consideration by the experts not provided for in the budget, would constitute   a “significant development” sufficient to  justify an upwards revision of the budget

Sony Mobile Communications International AB (a company incorporated under the laws of Sweden) v SSH Communications Security Corporation ( a Company incorporated under the laws of Finland ) [2018] EWCA Civ XXX . judgment 12 October 201

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