Probiz Central Ltd v Beech & 3 Ors

This is my second extemporary judgment in the case of Probiz Central Ltd (as claimant) and Ian Beech and three others (as defendants), claim number 2MA30440. This second extemporary judgment of today should be read in conjunction with the earlier extemporary judgment I delivered this morning refusing the application of the claimant respondent company for an adjournment of this application for security for costs. That earlier extemporary judgment set out the background to the instant application. Having refused the adjournment, I now have to address the substantive application, dated 11^th January 2013, by the defendants for security for their costs of the claim. That application is made against the background of the pre-existing order for security for costs made by Master Marsh when the claim was pending in London. His order was dated 5^th July and followed a hearing which took place on 21^st June. The Master handed down a written judgment on 5^th July, a transcript of which is included within exhibit IB2 to Mr Beech’s supporting witness statement (his second) of 11^th January 2013.

Master Marsh found that the claimant’s position was precarious: see paragraph 31 of his judgment. He also indicated that this litigation was being conducted in a vigorous manner: see paragraph 34. Before me today there has been no challenge to the fact that, as found by the Master, the threshold condition for an application for security for costs set out in CPR 25.13(2)(c) is satisfied. It is not disputed that the claimant, the respondent to this application, is a company and that there is reason to believe that it would be unable to pay the claimant’s costs if ordered to do so. That is not in issue.

The applicants are represented by Mr David Casement QC, who has submitted a written skeleton argument dated 2^nd April 2013. The respondent claimant is represented by Mr Jeremy Richmond (of counsel), whose written skeleton argument is dated 27^th March 2013. I have borne the contents of those written skeletons in mind. I have also borne in mind the detailed oral submissions which have been advanced to me.

Mr Casement, at paragraph 5 of his written skeleton, identifies two specific issues to be considered on this security for costs application before one goes on to consider the future costs not already encompassed by Master Marsh’s order. What Master Marsh had done was to award the defendants security for costs in the sum of £70,000 for the defendants’ costs incurred, and to be in incurred, in this claim up to, and including, inspection of documents. Paragraph 3 of his order provided that the defendants should have permission to apply for further security for costs, including the VAT which had not been covered by his order, upon completion of inspection in respect to the further stages in these proceedings. He went on to give further case management directions, including one for the transfer of these proceedings to this (the Manchester) District Registry, so that the corporate claim with which I am presently concerned could be case managed and tried together with an unfair prejudice petition (number 1414 of 2011) which had been presented by the first defendant on 8^th August 2011.

The two specific points which Mr Casement identifies as needing to be addressed are, first, an overrun on the costs to date and, in particular, the costs of disclosure and inspection; and, secondly, the fact that the defendants assert that their costs estimates to date have proceeded on the footing that the court would be dealing only with issues of liability, and not also with issues of quantum. In addition, there is a need to consider the value added tax for which Master Marsh’s order made no provision, both in respect of the past and future costs for which security has already been ordered, and also the future costs of other parts of the overall litigation.

I deal first with the overrun on the costs to date and, in particular, the costs of disclosure and inspection. It is said that the actual costs incurred in respect of disclosure and inspection have been substantially greater than were estimated before Master Marsh. The costs estimate before him had been prepared on 4^th April 2012 in advance of service of the reply in this litigation, although I note that the reply had been served on 1^st July, some three weeks before the hearing which took place before the Master.

The reasons for that costs overrun are set out in Mr Beech’s second witness statement at paragraphs 21 to 29. There is a certain lack of clarity as to the precise extent of the overrun as between the original costs estimate and the costs actually incurred. That uncertainty is compounded by the inclusion of VAT in certain of the figures that have been placed before the court. Mr Richmond’s position is quite simple. He says that the Master dealt with costs up to and including inspection of documents. For the reasons which he sets out at paragraph 23 of his written skeleton argument, Mr Richmond submits that none of the factors identified justify this court in varying Master Marsh’s order in respect of costs up to the stage of disclosure and inspection, since, first, none of the factors identified by Mr Beech were caused by the conduct or default of the claimant/respondent and/or, secondly, all of those factors were properly foreseeable by the defendants at the time of the initial hearing.

The applicable legal principles governing subsequent applications for security are set out in paragraph 25.12.11 at page 757 of the current (2013) edition of Civil Procedure:

“Where a previous application was unsuccessful or resulted in an order for security now said to be insufficient, the applicant may re-apply if they can prove some significant and relevant change of circumstances…. A relevant change of circumstance may be easily shown if the previous order described the security as being in respect of costs up to a specified stage in the proceedings and that stage has now been reached.”

Mr Richmond took me to two decisions of the Court of Appeal. The first is the case of Gordano Building Contractors Ltd v Burgess [1988] 1 WLR 890, a decision of the Court of Appeal. That case is not directly in point. It decided that, as held in the headnote, a plaintiff - in other words a respondent - who has been ordered to give security for costs, and can prove a material change of circumstances since the date of the order, is entitled to apply for the order to be varied or set aside. Here, of course, we are not concerned with an application by the claimant/respondent to vary an order for security; we are concerned with an application by the defendants and applicants for further security for costs. The only relevance, as I see it, of the Gordano decision is the court’s citation, with approval, in the leading judgment of Lord Justice Mann (at page 894, letters C to F) of obiter observations by Lord Justice Kerr in the earlier unreported case of Parkinson v Myer Wolff and Manley (unreported, 23 April 1985, Court of Appeal).In that case, Lord Justice Kerr is quoted as having stated (obiter) that just as a defendant may, from time to time, make further applications for security in the light of changed circumstances, so a plaintiff may be entitled to apply for the variation or discharge of an order previously made if his circumstances have changed.

The Court of Appeal in Gordano approved those obiter observations and adopted them. The other Court of Appeal authority cited by Mr Richmond is the case of Kristjansson v R Verney & Co Ltd (t/a Fuerst Day Lawson Fish) [1998] ADR.L.R. 06/18 (the neutral citation number of the case is [1998] EWCA Civ 1029). I was taken to passages in the judgment of Sir John Knox at paragraphs 35, 39-40 and 51-54. I have also noted what Sir John had to say at paragraphs 19 and 37 of the report.

Mr Richmond says that the relevant questions are: first, has there been a relevant change of circumstances? and, if so, secondly, was such change of circumstances foreseeable at the time of the initial hearing? He submits that a defendant who has applied for security for costs cannot return to court for further security in respect of matters that could have been raised, or were reasonably foreseeable, at the time of the initial application; otherwise, he says, when would matters end?

Mr Casement submits that here security has been ordered. The applicants are seeking further security for costs; therefore, he says, the sole question is whether it is just to make an order for further security. He refers specifically to paragraph 35 of Sir John Knox’s judgment in Kristjansson,where he recorded that it was common ground that once a successful application for security had been made, a subsequent application for increased security could perfectly well be made. Mr Casement submitted that the Kristjansson case was concerned with when the court could revisit an order for security which it had previously refused. Mr Casement submitted that where an application for security has succeeded, the sole question is the exercise of the court’s broad discretion as to whether to order security, applying the test of whether it would be just to do so.

In my judgment, the position, both on the authorities and as a matter of principle, is this: that if the court has ordered security then, in respect of the stage up to which security has been ordered, and subject to any express provision of the court’s order providing for such security, a material change of circumstance must be shown if the court is to be invited effectively to revisit its earlier order. Effectively, the court has to be satisfied of the matters that would be required on an application under CPR 3.1(7), which are considered at paragraphs 3.1.9 and following (at pages 59 and following) of the current (2013) edition of Civil Procedure.

Effectively, there must have been a subsequent material change of circumstances, or there must be new material which, for some valid reason, was not placed before the court at the time of the earlier order. Insofar as security for the costs expressly provided by Master Marsh’s order (that is to say, the costs of the claim up to and including inspection of documents) is concerned, it seems to me that there must be demonstrated some material change of circumstances since his order was made which was not, and could not have been, in the contemplation of the parties, or of the court, at the time the Master made his order. I am not satisfied that any of the matters identified in paragraphs 21 through to 29 of Mr Beech’s second witness statement satisfy the requisite test. At paragraph 21, Mr Beech says that the original costs estimate has been exceeded, and he has been informed by his solicitors that this is mainly as a result of the disclosure and inspection task in this matter having been very substantial, and it having taken a number of weeks to compile a very detailed list of documents.

I note that in the estimate of costs that was put before the Master, it had been estimated that the disclosure exercise would take 120 hours: see page 69 of the application bundle. Mr Beech goes on, in paragraph 22, to say that there was no provision for the costs of dealing with the electronic disclosure questionnaire and the agreement of search terms. They had also not considered proposed search terms or custodians when the security for costs order was made. I note that at paragraph 6 of the Master’s order, he addressed the exchange of electronic disclosure questionnaires, and liaison by the parties to endeavour to agree any issues in connection with electronic disclosure. I am satisfied that in a commercial case of this kind, and involving the sums of money engaged, that electronic disclosure is an issue that should properly have been addressed at the time of the application for security for costs. I am not satisfied that there was any material change in circumstances in that regard; nor do I consider the extent of the disclosure exercise described at paragraph 23 as justifying the revisiting of the Master’s earlier order.

At paragraph 24, reference is made to the fact that there was an initial anticipation that Mr Beech’s process of standard disclosure in this litigation would not be too time consuming as he was the petitioner in the other proceedings which have been case managed and are to be heard at the same time as the corporate claim. Nevertheless, as I have indicated, 120 hours was allowed for the process of disclosure, and a further 90 hours for inspection of documents: again see page 68 of the application bundle. Again, I do not consider that that is something which justifies revisiting the Master’s order. Reference is made to the more extensive nature of the list of agreed search terms than those suggested, but not agreed, in the petition, and the need for legal advisors to review documents to see whether they fell within the tests for standard disclosure.

Again, that is a matter that, in my judgment, does not justify revisiting the Master’s order for security. Reference is also made, at paragraphs 26 and (to a minimal extent in view of the costs involved) paragraph 27 to additional matters. Again, they do not, in my judgment, justify revisiting the order, nor does the correspondence referred to at paragraph 28. I accept Mr Richmond’s submission that there is no proper basis for revisiting the costs awarded by the Master by way of security for the litigation up to disclosure and inspection.

The second of the matters specifically identified by Mr Casement are the costs to be incurred in dealing with quantum. He refers to paragraph 4 of my order of 28^th February in which I directed the parties, pending the case management conference before Judge Pelling QC on 3^rd May, to continue to prepare both sets of proceedings on the basis that the trial to commence on 28^th October should be a trial of all liability and quantum issues. It is said that the effect of this is that work must be undertaken to address quantum, including further disclosure, expert evidence and witness evidence.

In his third witness statement, dated 2^nd April, Mr Beech states that the costs set out in the costs estimate lodged in support of the application do not include costs that have been incurred dealing with the issue of quantum. That is because:

“My legal representatives were approaching the matter on the basis that the trial listed to commence 28^th October 2013 would be limited to issues of liability and, as a consequence, so would disclosure and witness statements.”

Mr Beech’s third witness statement exhibits an estimate of the additional costs to be incurred in dealing with quantum in respect of disclosure. It is said to involve a further 84 hours’ work, in the sum of £14,680, an additional 120 hours is to be spent in relation to witness statements, a further 75 hours is to be spent addressing expert evidence, and experts’ fees are estimated in the sum of £25,000.

As I have said, an additional 84 hours is anticipated in relation to disclosure. That is in addition to the 280 hours that are referred to at page 72 of the previous costs estimate. So far as witness statements are concerned, a further 120 hours is envisaged on top of the apparently 390 hours referred to at page 73 of the original costs estimate prepared for the purposes of this application. I must confess to finding the additional number of hours to be quite staggering. Moreover, I am not satisfied, on the evidence, that that increase is in any way justified, as is apparent from the letter which is exhibited to Mr Gahan’s witness statement of 3^rd April, as part of exhibit MDG5, and dated 6^th November 2012 (to which I made reference in my earlier extemporary judgment). Turner Parkinson appear to have acknowledged that disclosure was not limited to liability; although, as I have also mentioned earlier in my previous judgment, Mr Casement says that there are other indications in the letter that Turner Parkinson did regard disclosure as being so limited.

Nevertheless, as I indicated in the course of the extemporary judgment I delivered on 28^th February, there had been no direction, either by District Judge Khan or by Judge Pelling, in earlier case management directions, for any split trial or any limitation of the scope of the issues to be considered at trial. Had that been contemplated, I would have expected express consideration to have been given to a delineation of the issues that (a) were and (b) were not to be addressed at trial, given that it is always important to make it quite clear what issues are being excluded from the scope of any trial if any form of split trial is being considered. I am not satisfied, on the evidence, which comes on the applicant’s side from Mr Beech himself, without any confirmation from any legal representative of his, that the costs estimate prepared for the purposes of this application was prepared on the basis that quantum issues were being excluded.

Even if that is not the case, then it seems to me that ample provision in terms of hours to be expended by legal representatives had already been made in the existing costs estimate for all matters necessary to be addressed in advance of, and at, trial. Mr Richmond submitted that, at the present time, the court should proceed on the basis that security for costs should be given only in respect of matters concerned with liability, and not with quantum. Indeed, he submitted that this application for security should not be addressed in advance of the resolution of the issue whether there should be a split trial, which is to be considered by Judge Pelling at the case management conference on 3^rd May. I reject that submission for the reasons given by Mr Casement. My order of 28^th February has provided that the parties should proceed on both liability and quantum; as Mr Casement says, the parties will have to continue to prepare for trial on that basis. They cannot afford, given the imminence of trial, and the weight of this litigation and the necessary trial preparation, to wait until after the case management conference before continuing to prepare witness statements addressing both quantum as well as liability.

I would therefore have rejected Mr Richmond’s submission that I should only order costs up to the case management conference at which the issue of the split trial is to be addressed. In any event, it seems to me that the court cannot, and in justice to the applicants should not, defer ordering staged security on the basis that the proceedings are to continue, in terms of preparedness, on the basis of my existing direction. Nevertheless, for the reasons I have given, I am not satisfied that it is appropriate to allow any further sums in respect of the additional costs estimate exhibited to Mr Beech’s third witness statement.

Even if I had taken a different view, I would have ordered nothing in respect of either the expert’s evidence, or the expert’s fees, given that there is presently no provision in any case management order for there to be any expert evidence at trial. Indeed, at the moment it is not clear to me the disciplines of the experts who might be deployed by the parties, or the extent of the issues to which any expert evidence might be directed. I note that there has been no previous direction for expert evidence, even though it is the claimant/respondent’s evidence and case that they have always considered that the trial will address issues of quantum as well as liability. It is implicit in that that they considered that there was no need for expert evidence on quantum issues. The nature of the issues to which expert evidence might properly be addressed has not been particularised in any of the applicant’s evidence; so I would have rejected any security for costs in respect of expert’s evidence and fees in any event.

So far as value added tax is concerned, Master Marsh’s order makes it quite clear that the defendants have permission to make applications for further security for costs, including the VAT, which had not been covered by his order. Therefore it is unnecessary for the applicants to show any special reasons or grounds for now seeking to extend the scope of the existing order for security to VAT. Having said that, however, I am not satisfied that the present state of the evidence justifies making any provision by way of security for irrecoverable value added tax. What Mr Casement says is that there are four defendants, on whose behalf security for costs is sought. Of those four, one is registered for VAT and can recover it back; but the other three are individuals who are not so registered and who cannot recover the value added tax back.

Mr Casement therefore seeks VAT on costs at a discounted rate of 15 percent, reflecting 75 percent of the VAT exigible. The difficulty with that is that there is no evidence presently before the court as to how, and on what basis, the defendants are being billed, or are likely to be billed. Mr Casement says that it would be wrong, and indeed a criminal offence, for the fourth defendant, registered for VAT, to be paying the bills of the other three defendants, and recovering the VAT back. However, what is said by the claimant is that the fourth defendant was set up as a corporate vehicle by the three individual defendants to further their alleged breaches of duty and of contract or interference with contractual relations. I do not know whether, in those circumstances, the fourth defendant may have given any indemnity in respect of costs to the three individual defendants, and whether, effectively, it is bearing the costs of these proceedings as the beneficiary of the alleged, but denied, breaches of duty.

The issue of VAT and its recoverability was expressly addressed in Master Marsh’s order. So far as the evidence before the court is concerned, the position is not clearer than it was before Master Marsh. It does not seem to me that it is therefore appropriate for the court to be revisiting that aspect of his order on the present evidence. Therefore I am not prepared to include any provision for VAT within the scope of any security ordered.

That leaves me to consider the security sought in respect of future costs. As to that, Mr Richmond says, as I have indicated, that I should only award security up to the stage of the case management conference. He says that it is only at that point that the issue of the scope of the trial will be resolved. Indeed, Mr Richmond goes on to speculate that at the case management conference the judge may order that the petition should be heard before the corporate proceedings, or, Mr Richmond acknowledges, the other way around. I accept Mr Casement’s submission that it is most unlikely that Judge Pelling, who has had the case management of these proceedings to date, will take the view that the two sets of proceedings should be divorced. I accept Mr Casement’s submission that there is a substantial overlap between the petition and the corporate action. I also accept Mr Casement’s submission that the application which is to be heard immediately before the case management conference by the third defendant to strike out the claim against him does not in any way affect the present application for security for costs

There is no suggestion by the claimant, which has not seen fit to put in any evidence, beyond the recent witness statement from Mr Gahan, that the strike out application will in any way effect the quantum of costs; and I cannot see that the costs will be affected by whether the claim proceeds against the third defendant or not. The costs will, as far as I can see, be the same whether he is there at trial or not, given that all four defendants are represented by the same solicitors and counsel.

Mr Richmond also suggested that the court should only order security up to the stage of witness statements. He went so far as to submit that the security should extend to witness statements on liability only, on the footing that the court should proceed on the basis that the court will order a split trial, as the defendants contend it should. I find that submission surprising, given that the claimant is resisting the notion of any split trial and refutes the defendants’ assertion that anyone ever thought that the trial should be split along those lines.

I would also, if necessary (which I think it is not), have accepted Mr Casement’s submission that there is unlikely to be any material reduction in the brief fee if the trial is split, given that issues of liability and quantum are apparently inextricably linked, in certain respects at least. Therefore it seems to me, for the reasons I have already given, both in refusing the adjournment application and also earlier in this judgment, that the interests of efficient case management and the overriding objective, and the need to ensure that this case proceeds smoothly to a trial on the date which is set for it, all dictate that I should deal with the present application for security for costs in its entirety, and on the basis of the material which is presently before the court, and on the basis upon which this action is presently directed to proceed to trial in accordance with existing case management directions. The court should not assume in any way that those case management directions will be varied. If they are, then a consequential adjustment to any order for security for costs can be made. If security for costs is being ordered on a staged basis, as Mr Casement invites the court to do, then any future court order will be able to make any necessary adjustments to the phasing, and level, of security ordered at different times. I therefore must address the quantum of the security for costs going forward. This was addressed at paragraph 14 of Mr Casement’s written skeleton argument. I have already indicated that the sum should not be adjusted to reflect actual costs actually incurred by the defendants, nor should it be adjusted to reflect the additional estimate for costs exhibited to Mr Beech’s third witness statement.

On that footing, Mr Casement seeks, by way of security, the various sums set out at paragraphs 14, subparagraphs 2, 3 and 4. First he seeks £59,972.50 by 18^th April as security up to and including witness statements. That figure is arrived at by taking the figure in the schedule of £74,500, multiplying that by 70 percent, and adding VAT of 15 percent - in other words, three quarters of the VAT applicable at a rate of 20 percent. I have already indicated that no provision should be made for VAT. Secondly, Mr Casement seeks £31,153.50 by 28^th June as security up to and including preparation of trial bundles. He explains that that is based upon a total costs expenditure of £38,700, multiplied by 70 percent, but with VAT. As I have said, the VAT element should be excluded. Finally, Mr Casement seeks £242,158.70 as security up to and including trial. That Mr Casement invited the court, in his skeleton, to order to be provided by 30^th August; but in his oral submissions he invited the court to accelerate this to the end of July.

Mr Richmond did not mount a detailed challenge to the costs estimate. He did, however, counsel the court to be astute to the prospect that some of the costs of the petition may have leaked into the costs estimate, which should be strictly confined to the defence of the corporate claim. Mr Richmond also submitted that there is likely to have been a general increase in the costs of disclosure as a result of the way in which that exercise has been approached by the defendants, which would in turn leak into the costs of preparing the witness statements. He submitted that those increases should not lie at the door of the claimant. He also submitted that the costs of a manual search of documents would increase the costs of the disclosure exercise. He submitted that the costs of preparing the trial bundles should fall on the claimant, rather than the defendants, and therefore that the asserted costs of that exercise are exaggerated. He also submitted that the brief fees of counsel should clearly be staged. In particular, he refuted any suggestion that all the costs of trial would have been incurred by the end of July, or even by Mr Casement’s original date of 30^th August.

Mr Casement submitted that the applicants are only seeking 70 percent of their costs by way of security, and that allows a margin of error which is capable of accommodating the points made by Mr Richmond. Mr Casement also emphasised the lack of any evidence from the claimant, and in particular the fact that no schedule has been produced by the claimant setting out its own up-to-date estimate of costs. Therefore, said Mr Casement, it was impossible for the court to undertake any comparison of the originally estimated costs on the part of the claimant and those which it had actually incurred so as to judge the level of their increase.

In the course of his submissions, I have pointed out to Mr Casement that a significant fee earner in terms of the applicant’s costs estimates was Miss [Carling Wheel?] whose hourly rate had increased from £160 to £180 plus VAT because she had progressed from being a grade C fee earner to a grade B fee earner. The point I put to Mr Casement was whether it was right that the increased costs of a grade B fee earner should fall upon the paying, rather than the receiving, party in terms of an order for security for costs when it had been considered appropriate that a grade C fee earner should be retained to deal with certain matters. Mr Casement made the perfectly valid point that, one, Miss Wheel had had considerable experience and involvement in the case, and it would be wrong for the applicants to have to dis-instruct her and engage some other person, who would inevitably have to spend hours getting into the case; and, secondly, that with her greater experience she would no doubt be able to deal with the work more quickly and efficiently. In the end, Mr Casement indicated that that was a matter that could perhaps be addressed in the 30 percent reduction which was implicit in his application for only 70 percent of the applicants’ estimated costs.

I bear all of those submissions in mind in approaching the costs going forward. I bear in mind the fact that a principal fee earner is now being charged at a rate of £20 an hour more than the rate applicable to the level of fee earner who was originally engaged to take the case forward. I bear in mind the substantial number of hours’ work that the costs estimate indicates. As I have said, what is envisaged is some 390 hours’ work on witness statements. That must be viewed against 280 hours that have been spent so far on disclosure. I bear in mind that some 162 hours is envisaged in preparation for trial, including some 100 hours by Miss Wheel and 22 hours by Mr Fitzpatrick, the grade A fee earner and partner charging £245 an hour. Bearing all of those factors in mind, it seems to me that I should adopt a broad-brush approach and take 60 percent of the solicitor’s costs rather than the 70 percent for which Mr Casement was contending. That, of course, will exclude any element of VAT.

I accept Mr Casement’s submissions as to the staging of these payments. It seems to me that the dates originally set out in his written skeleton argument are appropriate, given the way in which the matter must progress towards trial; but I would reject Mr Casement’s second-thought submission that the final tranche of £242,158.70 should be payable at the end of July. That would be some three months before trial. There was no evidence before the court as to the arrangements that were being made for the delivery of counsel’s briefs, and any arrangements for the staging of instalments of counsel’s brief fee. The last item on the schedule includes items such as counsel’s refreshers, and solicitor’s attendance at trial, which would clearly not be incurred until much later than, even, 30^th August. In my judgment, Mr Casement’s first thoughts were correct, and his date of 30^th August for the final instalment was appropriate.

So what I would propose to do is to make an order for staged security payments in terms of paragraphs 14(2), (3) and (4) of Mr Casement’s skeleton, but excluding any element for VAT from those figures. Any order for security should also make it clear that it is subject, and without prejudice, to any further orders of the court, so that either Judge Waksman or Judge Pelling may be in a position to make appropriate adjustments to my security order.