Kingsley v Orban

MR JUSTICE NUGEE: I have before me an appeal from a decision of Deputy District Judge Brafield sitting in the Kingston County Court dated 9 September 2013, in which he ordered the defendant, Mr Laurence Kingsley, to pay the claimant’s costs, the claimant being Judith Orban, and assessed those costs summarily in the sum claimed by Miss Orban’s solicitor, Mr Mark Williams of W Davies in the sum of £2,208 plus VAT, making a grand total of £2,649.60.

The background to the action is that Mr Kingsley, who is a former solicitor and now carries on practice as what he calls a legal consultant, had provided legal services to Miss Orban. He claimed that money was due to him for those services and issued a statutory demand in the sum of £6,500. That was dated 18 June 2013 and the statutory demand was in respect of a bill dated 16 April 2012 for the supply of legal services from a date in July 2011 to 8 January 2012. That, as I say, was dated 18 June; it does not appear to be disputed that the last day available under the Insolvency Rules for Miss Orban to apply to set that aside was Monday 8 July 2013.

On 27 June Mr Kingsley was contacted by Mr Williams of W Davies, who indicated that he had been instructed in relation to the statutory demand, and Mr Kingsley suggested that he should put his reasons for setting aside the statutory demand in writing. That was done by Mr Williams on 1 July in a letter which said at the outset that “the sum demanded is disputed and unless you confirm in writing by 4pm 3 July 2013 it is withdrawn we shall have no option but to apply for the court to set aside the demand”; then again the end of the letter repeated “we request you formally withdraw the section 9 and confirm this in writing by 4pm 3 July, failing which our client shall have no choice but to apply to have the demand set aside”. Mr Kingsley replied to that by letter dated 2 July taking issue with the points of substance raised by Miss Williams but not at that stage saying anything about withdrawing the demand.

Mr Williams had received that letter by 3 July and at 13:27 on 3 July sent an email to Mr Kingsley saying that “we have no option but to apply to set aside as previously warned” and, at the end, “If you genuinely wished to deal with the issues raised then you should have agreed to withdraw the demand”. That seems to have prompted a telephone call on the morning of 4 July from Mr Kingsley to Mr Williams at about 10:15. There is an attendance note made by Mr Kingsley of call in which he says “I have asked him [Mr Williams] if he would deal with the issues if I withdrew the demand. He said he would. I said in that case I withdrew the demand, which at his request I would confirm in writing”. Mr Williams in his witness statement gives a rather longer explanation of that telephone call in which he said that:

“[Mr Kingsley] then sought to badger me into providing a formal undertaking that I respond to his letter of 2^nd July. I was simply not prepared to. I said I would deal with the issues in dispute (which is not quite the same thing), but I made it clear I was not undertaking to address the issues raised in his letter. I was simply not prepared to be tied up with the withdrawal of the demand as being conditional in any way, and was not prepared to undertake to deal with something that was not within my full control or remit.”

He then says:

“During this increasingly difficult conversation the respondent [Mr Kingsley] eventually said he would withdraw the demand. I said I wanted this confirmed in writing and made it expressly clear that I would continue with the preparation of the application to set aside until such time as the confirmation had been received.”

He then sent an email that same morning, 4 July, at about 10:40:

“I refer to our telephone conversation just now, in which you indicated you would withdraw the demand.

As discussed, you need to confirm that the demand is withdrawn in writing. An email is sufficient. Until such time as this is received, the application to set aside will continue to be made due to the short period of time remaining. We will look to you for these costs, as we gave you until 4pm yesterday to withdraw the demand.”

Mr Kingsley did not reply by email as Mr Williams had invited him to, but sent a letter dated 4 July which he put in the DX, which reads as follows: “Referring to our telephone conversation this morning at 10:17am, I confirm in writing, as requested, I will withdraw the statutory demand and look forward to you dealing with the issues raised in our respective letters in accordance with your and Mr Williams’s undertaking.”

By the morning of 5 July Mr Williams had arranged to meet his client, Miss Orban, at the Kingston County Court. He needed to meet her in person because the application to set aside the statutory demand required to be supported by a witness statement to be made by her. He lives in Kingston and it was convenient therefore to go to the court from home before going into the office and working and, as he told the deputy district judge and as the deputy district judge accepted, neither he nor his client were available on the Monday. At the time that he was at the Kingston County Court issuing the application he had therefore not received Mr Kingsley’s letter. On his return to the office he found the letter; that is confirmed by an email which is sent on 5 July at 12:06, which says:

“We now have your letter of 4 July. As we had not received written notice yesterday, and as discussed we proceeded with the application to set aside as warned. That was lodged this morning at court prior to the writer being in receipt of your letter. As warned we will seek to recover our costs in respect of this given your failure to withdraw the demand in writing following our letter of 1 July and our conversation last week on 28 June by 4pm on 3 July.”

It then took issue with the suggestion that Mr Williams had given an undertaking to deal with the matters raised in the letter, saying “we confirm we are dealing with the dispute on behalf of our client but we did not undertake to do so”.

In due course the application came before the court. By the time it came before the court in September 2013 there was no dispute that the statutory demand should be set aside. Mr Kingsley made a witness statement on 3 September saying “I remain willing to consent to the setting aside of my statutory demand but have not received a draft consent order from the applicant”; and Mr Williams, in his witness statement in response on 5 September, said: “As the respondent has agreed to withdraw the demand, the only remaining issue is one of costs of the application.” The deputy district judge first decided whether Mr Williams had acted over hastily in proceeding to issue his application by 5 July and he said this at paragraph 7:

“The merit issue is this: was Mr Williams over-hasty in issuing his application, given that Mr Kingsley had said on the telephone that he was going to withdraw? I find that Mr Williams was not over-hasty. These applications are brought under great pressure of deadlines and time limits. A prudent solicitor always has to have these in mind. Mr Williams has said, and I entirely accept, that he was not free to deal with this business on Monday 8th July 2013. Neither was his client. The only day when he could make the application was on Friday 5th July 2013. This, in my view, is a sign of a prudent and conscientious solicitor who, when faced with a deadline allows himself at least one day’s grace rather than get into arguments as to whether or not deadlines have been observed.”

Before me Mr Anderton, who appears for Mr Kingsley, first of all pointed to the fact that Mr Kingsley, having agreed to withdraw the demand verbally, did not dispute that it was reasonable for Mr Williams to ask for that request to be confirmed in writing. He says that the deputy district judge, who goes on to consider whether it was reasonable to require the confirmation in writing, was therefore dealing with an issue which was not really in issue. That is, as far as it goes, a fair point, but it does not seem to me to address the actual finding of the judge, which is that in paragraph 7, which I have already read, where the relevant question was: was it overhasty in the circumstances to proceed to the court the next morning on 5 July? Mr Anderton, when I asked him what else Mr Williams should have done, said that between sending his email at 10:40 on 4 July and going to court on 5 July he could and should have telephoned Mr Kingsley to explain that he was going to go to court the next morning. I think that that is taking too strong a view of the matter. Mr Williams had spoken to Mr Kingsley first on 27 June, then written a letter on 1 July setting a clear deadline of 4pm on Wednesday 3 July warning that otherwise the client would apply to have the demand set aside. He had, on the morning of 4 July, not received any agreement to withdraw the demand; the latest communication he had from Mr Kingsley was his letter of 2 July, which arguably underlined merits in the statutory demand and contained no offer to withdraw it. When he was told on the telephone that Mr Kingsley was willing to withdraw the demand he requested that to be confirmed in writing; a request which, it is not disputed, was a reasonable request. He also made it clear in his immediate email of 4 July that until that was received work would continue on the application. It does not seem to me, in those circumstances, that it was necessary for Mr Williams to follow that up with a telephone call to indicate precisely what the work required would be and that he would be attending court the next morning. Mr Kingsley was warned in clear terms that, until Mr Williams had received a confirmation in writing, work would continue to be carried out, and it does not seem to me that the deputy district judge was at fault in finding that Mr Williams was not overhasty in going to court the next morning. As the deputy district judge points out, Mr Williams’ email of 4 July suggested that an email confirmation would be sufficient. Mr Anderton made the point that the deputy district judge refers in paragraph 8 to the email as having been expressed in urgent terms and required an urgent response and requesting an email reply, and he points out that it did not request an email reply but suggested that an email reply would be sufficient. That I think is an over-technical reading of the email as the deputy district judge says in paragraph 11. Mr Williams acted prudently in the light of the present pressing deadline. I find that Mr Kingsley should have been on notice of the risk of this happening - it had been signposted very clearly - that he had been given adequate warning and it was easily within his power to stop the application by a simple email reply on 4 July saying “I hereby confirm the writing as requested and I withdraw the statutory demand”. With that simple email all of this would have been saved. It seems to me that the deputy district judge took an entirely correct view of the matter in that respect and I have still not understood, despite Mr Anderton addressing me, why Mr Kingsley did not take that simple and cost effective method, putting a stop to the work that Mr Williams had told him that he was going to carry on doing. I therefore dismiss the first ground of appeal. The deputy district judge was not only entitled to but, in my judgment, entirely right to take the view he did, and in those circumstances it was appropriate for Mr Kingsley to pay Miss Orban’s costs of preparing and issuing the application to set aside the statutory demand, and, since that is what was in issue on 9 September, it necessarily followed that he was also, in principle, entitled to award Miss Orban the costs of the preparation for the attendance at that hearing. He then proceeded to summarily assess the costs. It is a fact that the Practice Direction to Part 44 at paragraph 9.5(4) provides that a statement of costs, which, by subparagraph (3) should follow as closely as possible form N260, by subparagraph (2) has to be prepared by each party that intends to claim costs. By subparagraph (4):

“(4)

The statement of costs must be filed at court and copies of it must be served on any party against whom an order for payment of those costs is intended to be sought as soon as possible and in any event –

(a)

for a fast track trial, not less than 2 days before the trial; and

(b)

for all other hearings, not less than 24 hours before the time fixed for the hearing.

9.6

The failure by a party, without reasonable excuse, to comply with paragraph 9.5 will be taken into account by the court in deciding what order to make about the costs of the claim, hearing or application, and about the costs of any further hearing or detailed assessment hearing that may be necessary as a result of that failure.”

Mr Williams did not comply with that Practice Direction. He produced a form N260 Schedule of Costs at court and gave it to Mr Kingsley just after 2pm when the hearing was listed for, though the hearing did not in fact start until 2:10. It is not suggested that there was a reasonable excuse for failing to do that; Mr Williams told me that he could not remember why he had not served it in time; he suspected it was because of pressure at work, but, as is made clear in the Mitchelldecision, pressure of work is not in general a reasonable excuse for failing to comply with orders, rules and practice directions, and I proceed on the basis that paragraph 9.6 applied and that there was a failure by a party without reasonable excuse to comply with paragraph 9.5.

That then raises the question of what the reaction of the court should be to such a failure. Here guidance has been given by Neuberger J in a case called MacDonald v Taree Holdings (2000) All ER (D) 2204, which was an appeal from a deputy district judge who, in that case, had refused to grant the appellant, Mr MacDonald, the costs of a successful application to set aside a statutory demand because the schedule had not been provided. In that case the schedule was provided at 11:15am for a hearing at 3pm in the afternoon. Neuberger J gave quite a lot of guidance on the appropriate reaction of the court, starting at page 9 of the transcript. He said the correct approach is this:

“Where there is a failure to comply with the Practice Direction and a schedule of costs is not served more than 24 hours before the hearing, the court should take that into account but its reaction should be proportionate.”

He then approved a distinction between a mere failure to comply – that is, a failure to comply without aggravating factors – and a case where there is a failure to comply plus some aggravating factor. In relation to the latter position he said: “then it may very well be right to deprive the party who would otherwise be entitled to his costs or a significant proportion of his costs”. He then gave some examples: “For instance, if it can be shown that the party concerned was specifically asked for his schedule of costs in time and was supplied with his opponent’s schedule of costs in time and the court is satisfied the failure to comply was deliberate, that may well justify depriving him of all or some of his costs. Similarly, if the party concerned can be shown to have had a history in the litigation of failing to serve a schedule within time and it had been drawn to his attention and he still fails to comply, that would be an aggravating factor. It would be wholly inappropriate for me to pretend that I could set out all the aggravating factors, and those are but two examples.”

In this case Mr Anderton relied upon two aggravating factors. The first was that by the time the case came on for hearing Mr Williams was aware that the sole issue for determination was costs, as I have already referred to, and in those circumstances the question of what costs he was seeking to recover should have been at the forefront of his mind, and the failure to comply was particularly glaring as the whole hearing was focused on costs. That I think, although in one sense true, rather overstates the position, as in most hearings there is a substantive issue to be resolved and then the costs of arguing the substantive issue to be decided subsequently. The substantive issue to be resolved was indeed a question of costs, but the question was whether Mr Williams was justified in proceeding to apply to have the statutory demand set aside and focused on the events as I have referred to earlier of the 1^st to 5^th July. That is a slightly different question which had to be determined first before deciding what costs should be awarded for the costs of the application and the hearing as a whole. I do not regard that by itself as being an aggravating factor; it is part of the feature of the case that the ultimate aim of Mr Williams was to recover costs, but I do not regard that by itself as taking it into Neuberger’s J category of aggravating factor.

The second matter on which Mr Anderton relied was that Mr Kingsley had asked for a breakdown of the costs and had not been given it. The history of this starts on 24 July when Mr Williams wrote to Mr Kingsley confirming they would be prepared to vacate the hearing by consent, and then said:

“The only issue is one of our costs as explained previously. We are prepared to limit our costs to be met by you in the sum of £500 plus VAT, obviously if you are not able to agree this and a hearing is necessary, the level of costs we seek will be more. This offer on costs is open to 8th August.

We will prepare and file a witness statement in respect of costs after 8th August for use at the hearing, and accordingly our costs (to which we will look to you for) will increase beyond this point.”

The response on 25 July among other things said, “With regard to your costs please provide a breakdown to enable me to consider them.” Mr Williams sent an email on 26 July restating that the only issue was one of costs:

“We have made an offer. I am a grade A solicitor, with a usual charge-out rate of £230 plus VAT. The offer on costs at £500 plus VAT (and it is not all my costs and does not represent all my time incurred in respect of this matter) is reasonable even taking into account the hourly rate usually allowable in Kingston on an inter partes basis.

It is not cost effective for us to become embroiled in endless correspondence on the issue, and unless our offer is accepted we will incur additional costs as warned in our letter of 24 July 2013 in respect of any adjourned hearing.”

Mr Kingsley came back on 31 July where, after dealing something else, he said “secondly, there is the matter of your claim for costs which I am anxious to deal with as soon as possible. To this end I request a brief breakdown of the work involved with dates”. The answer, on 1 August, was: “Our offer, as contained in our letter of 24 July 2013, is only open until 8 August. We are not going to engage in further incessant correspondence in respect of it.” A letter in reply of 2 August took a number of points including, fourthly, “I have made it clear that I am willing to pay any reasonable costs to which you may be entitled. When I asked for some indication of what they encompass you ignored my request.” Mr Anderton characterised that as a refusal to engage with the issue of a breakdown of costs and that the work that Mr Williams had been asked for, which was to break down his costs, was work that he was always going to have to do and relied on that as a second aggravating feature. Mr Williams’ response is that the offer was simply that: it was a take it or leave it offer; he had indicated his hourly rate; he had said that that was less than the costs that he had in fact incurred and he had made it clear that he was not prepared to engage in further correspondence.

It is impossible to view this matter in isolation without having regard to the tone of the correspondence between Mr Kingsley and Mr Williams’ firm which had taken place beforehand, which had descended to a level which I find rather surprising and which the deputy district judge obviously also thought had not done Mr Kingsley any favours. He is recorded in the transcript as saying, “Having seen the nature of the correspondence in this case, which is considerable, I am bound to say, Mr Kingsley, I think you have made a difficult situation far worse by the attitude and the points you have raised. The nature of your correspondence I find unhelpful and evasive instead of getting to grips with what the issue was.” It includes a letter addressed not to Mr Williams but to Mr Oxley, the senior partner of the firm, describing himself as feeling unable to deal with Mr Williams, whom he found to be particularly uncouth and unpleasant, and setting out the detailed complaints of the way in which Mr Williams was said to have behaved, which necessitated a lengthy response from the complaints officer of the firm, a Mr Andrew Cairns. I do not find, in those circumstances, that Mr Williams was unwilling to engage with a matter which he did not see the necessity of; he had made it clear the £500 offer was a take it or leave t offer; he did not want to spend more time engaging in correspondence on it and the deputy district judge found that the £500 offer was a perfectly reasonable offer.

It is relevant that Mr Kingsley, although a litigant in person, was not inexperienced in the law; he was, as I said, formerly a solicitor and himself offers legal services to litigants and indeed the underlying dispute is in relation to his bill for legal services which he has rendered. He is therefore quite capable of understanding the sort of work that is involved in applying to set aside a statutory demand and forming his own view as to whether £500 was a reasonable figure for that or not. It was confirmed to me that when that offer had lapsed, with no suggestion by Mr Kingsley that he wanted more time to consider it or any counter offer and the matter was then heading for a contested hearing, Mr Kingsley did not either himself serve a schedule N260 or request a schedule N260 specifically from Mr Williams and, just as the point can be and has been made that Mr Williams might have focused on the necessity for a schedule given that the hearing was ultimately one about costs, so the point might equally be made that if Mr Kingsley, having been warned on more than one occasion that the costs would increase if the matter had to go to a hearing, had wanted to know what the amount in issue was by the time he went to the hearing, he could have asked for it.

I do not find, in all the circumstances of the case, which, as I have said, includes the background between the parties, that it was an aggravating factor for Mr Williams in the circumstances not to have engaged with the requests made at the end of July and beginning of August, and I do not find that they are directly relevant to his failure to serve the schedule in September. That means that this is to be approached as a case in Neuberger’s J classification as one where there are no aggravating factors. In relation to that, his guidance is as follows:

“Where there is a mere failure to comply, and that is a failure to comply without aggravating factors, it seems to me that the first question for the court should be: what, if any, prejudice has that failure to comply caused to the other party? If no prejudice, then the court should go on and assess the costs in the normal way. If satisfied it has caused prejudice, the next question is: how should that prejudice best be dealt with?”

He then says that there would normally be three answers; the first would be to give the paying party a brief adjournment of, say, quarter of an hour or so to consider the schedule and then proceed to assess costs, adding that “if that course were taken then the court should bear in mind the fact that the paying party has not had as much time as it should have done and it should err in favour of a light figure rather than a heavy figure in any case of doubt. The second possibility would be for the court to stand over the matter for a detailed assessment”; and then he deals with a further possibility, which is to stand over the assessment of costs and to keep the basis on the summary basis.

Before me Mr Anderton did not suggest that either the second or the third possibilities were appropriate in this case, but he did say that there was prejudice to Mr Kingsley in being presented with the schedule only at court, having had no time to prepare a response to it and suggested that that was something which the court could take into account. I accept that there is inevitably, even for someone with Mr Kingsley’s long experience in the law, some prejudice in not having any notice in advance of what a schedule of costs says and that there might have been points that he would have wished to make had he had the opportunity to consider and study that schedule in good time, but I do not think however the prejudice should be overstated and the transcript shows that Mr Kingsley was able to make a number of points. He made the point that two hours was too long for preparing the witness statement. The deputy district judge himself raised the question whether there was duplication in two items on the schedule and had to clarify that there was no duplication. Mr Kingsley also addressed the deputy district judge on whether Mr Williams’ witness statement had gone into the background of the matter in too much detail, his submission being that only the last two pages were directly relevant to costs and that eight of the ten pages were not justified.

So it is not the case that Mr Kingsley was quite unable to make any points. Nevertheless, and even taking into account the fact that Mr Kingsley did not draw the deputy district judge’s attention to paragraph 9.6 of the passage in the White Book which refers to Neuberger’s J decision in MacDonald v Taree Holdings I accept that it would have been preferable for the deputy district judge to have granted Mr Kingsley a short adjournment of 15 minutes or so had he asked for it to consider any points arising on the schedule.

The question is: what should I now do, given that that would have been the ideal way of proceeding? It seems to me that I should now take into account such points as Mr Anderton wishes to urge on behalf of Mr Kingsley in opposition to the summary assessment, on the assumption that had Mr Kingsley had an opportunity to consider the matter, those are points which he would also have wished to raise before the deputy district judge. Those points can be summarised as follows.

Firstly, it is said that Mr Williams is a grade A fee earner and the matter could have been handled by a grade B fee earner whose charge-out rate would of course have been less, and Mr Anderton pointed to the fact that this was what he called a low value statutory demand, being, as I have said, a demand for £6,500. In my judgment, it was entirely reasonable for Miss Orban to use a grade A fee earner. What is in issue in insolvency proceedings is not the amount of the statutory demand, in this case £6,500, but the question of whether the petitioner is able to make out a case for making the respondent bankrupt. That is something which is potentially far more serious than simply a question of £6,500 and I accept that it was reasonable in the circumstances for Mr Williams to handle the matter as a grade A fee earner; that is even leaving out of account the nature of the correspondence with Mr Kingsley, which, as I have briefly referred to, went beyond what might normally be involved in a routine disputed debt, and with hindsight it can be seen that the engagement of a grade A fee earner was not only justifiable but was probably very sensible.

The second point is that, according to the guidelines appearing in the White Book, the appropriate hourly rate for a grade A fee earner in the Kingston area is £217 an hour and Mr Williams has charged out at £230 an hour. There is obviously some force in that point. I do not know what the deputy district judge’s reaction to it would have been had the point been taken at the time, although it is fair to say that more than once the deputy district judge, who must have seen the hourly rate and must have a much better idea than I do of the current hourly rates, and what is reasonable regarding them in the Kingston County Court, said on more than one occasion that he regarded the costs claimed as entirely reasonable. He said, “I find the costs claimed entirely reasonable” and again “I find these costs altogether reasonable”. That does not give me confidence that, if the point had been taken, he would have reduced the hourly rate from £230 to £217 and it is noticeable that that hourly rate dates from 2010 and this was being assessed in 2013. I will come back to this point, but I will just note at this stage that Mr Anderton told me that if one substitutes the lower hourly rate it makes a difference of £175 in total to the amount of bill. I am not myself sure that that is right; the bill at £2,208 is the equivalent of 9.6 hours at £230 and the same number of hours at £217 comes to £2,083.20, a difference of £125 not £175. All these figures are of course without VAT. So, as I say, I will return to that point and go on to the next point that Mr Anderton made.

The next point that Mr Anderton made echoes the submission which Mr Kingsley did make, which is that three pages of Mr Williams’ statement which set out the background in some detail were unnecessary in dealing with a dead issue, namely whether the statutory demand should set aside, and indeed he said they were slightly gratuitous. So far as being gratuitous is concerned, given the complaints that Mr Kingsley had levelled against Mr Williams, I do not think it was inappropriate for Mr Williams to set out his impressions of Mr Kingsley, and I leave that out of account.

This raises the question whether it was inappropriate for Mr Williams to go into the background in as great detail as he did, but this is a matter of which I do have the views of the deputy district judge. He said, “I found the witness statement reasonable, proportionate and very helpful to me to understand the background to the case”. I think it is inappropriate for me to take a different view. It seems to me that, even if Mr Kingsley had been given 15 minutes to put his thoughts into order and had made exactly the same submission Mr Anderton has made to me, the deputy district judge would have made exactly the same comment and would have allowed the costs of the witness statement in full.

For what it is worth, my own view is that that is not only a view that he was entitled to come to but is probably a view I would have come to myself. It is always the case that it is easier to understand the issues in the case and reach a just conclusion if one has some idea of the background of the case, even if they are matters which are no longer strictly in issue, and this, as I say, is not a simple straightforward application to set aside but had come bound up with a number of other issues. So I dismiss that criticism.

The final criticism Mr Anderton made of the bill was one of proportionality. He said that, in relation to a statutory demand of £6.500, to spend £2,500 on the costs is too high. The answer to that, it seems to me, is that given by Mr Williams which is, as I have already adverted to, that what was at issue was not £6,500 but whether Mr Orban was at risk of being made bankrupt or not. It was entirely open to Mr Kingsley to put a stop to the proceedings, even if not by responding on 4 July but by agreeing to pay £500 plus VAT in costs in July and August. He chose to take his stance that the costs should not be paid by him at all and, having fought and lost, it does not seem to me that it is really open to him to complain that the costs incurred were disproportionate.

I come back to the question of whether the hourly rate is higher than should have been allowed. Mr Williams told me, and I have no reason to doubt, that although he allowed 12 minutes for attendance at the hearing, the hearing took until 2:50 and, having been listed at 2pm, that means that that was most of an hour spent on a hearing which is not allowed for in the bill but was clearly a reasonable cost. If one allows 50 minutes from the start of when the hearing was listed to the end of the hearing, that would have been nine units, which would come out, at a rate of £217, at some £195 as opposed to the £46 allowed for in the bill, in other words some £150 or so more than that which has been charged. Even if therefore it would have been right to reduce the hourly rate to £217 which, as I have said, would have saved £125 on the bill, it is more than offset by the amount of time actually spent at the hearing which has not been charged. In those circumstances, and given the deputy district judge’s clear view that the costs were entirely reasonable, and, as I say, given that he is likely to have a much better view than I have of the usual level of costs for hearings of this type in the county court, I am not persuaded that it is appropriate to disturb his decision that the bill should be allowed in full.

My conclusion therefore is that, despite the fact that, with the assistance of Mr Anderton and the citation of authority, it can be seen that the deputy district judge should have given Mr Kingsley the opportunity of taking some time to consider the schedule, in accordance with the judgment of Neuberger J in MacDonald v Taree Holdings it would not in fact have made a substantive difference and I therefore dismiss the appeal on the second ground also.