Practice and procedure – Other – Costs
This decision from the Technology and Construction Court is of interest as an example of an award of costs against a party for adopting an unreasonable approach to drafting and agreeing an order after a hearing. The parties attended a case management conference at which it was decided, with the consent of the parties, that the case would proceed in a certain way. The Claimant‟s solicitors subsequently prepared a draft order that contradicted the directions that had been given at the case management-conference. The Defendant‟s solicitors would not agree to this draft order and, after extensive correspondence between the parties, the matter came back to Court three and a half months later, with agreement on the terms of the order having been reached only a few days previously. Mrs Justice Edwards-Stuart said (at para 19):
"If a party is charged with drawing up an order it is the duty of its solicitors and counsel to produce a draft that fairly reflects what they think the judge decided or directed. Save for the most complicated directions, this seldom presents any difficulty. What [the Claimant‟s solicitors] did in this case was to produce an order that reflected the directions that they or their clients would like to have, and not the directions that the court in fact ordered. That is wholly unacceptable: it is not just unreasonable, it is verging on the contumelious (to use an old fashioned, but completely apt, adjective)."
The Claimant‟s solicitors were ordered to pay the costs unnecessarily incurred by the Defendant‟s legal representatives in their protracted attempts to obtain agreement to an order.
The extreme position adopted by the Claimant‟s solicitor and the long delay in submitting the agreed order mean that it is likely this case will be easily distinguishable. Nonetheless it may be of assistance in the event (which we hope is highly unlikely) that practitioners encounter sustained and unreasonable opposition in the course of attempting to agree the terms of an order after a hearing.