Stephen Turner v Coupland Cavendish Limited

The Respondent acknowledges that the consequence of my Judgment is that I will order Part 18 replies within a reasonable timeframe, suggesting 21 days is appropriate. However, the Respondent seeks a stay in relation to any order for provision of the replies pending either refusal of permission to appeal to the Court of Appeal or dismissal of the Respondent’s appeal if permission is granted. Since this would be a second appeal, the Respondent has applied to the Court of Appeal for permission to appeal by way of an Appellant’s Notice dated 15 July 2025. The Respondent asserts that this prospective appeal satisfies the test for a second appeal under CPR 52.7 and is for “clarification of the state and application of the law”, which is of importance to the practice of costs law.

The Respondent argues that I possess the power to make such an order, asserting that CPR 52.16(a) indicates a parallel jurisdiction with the Court of Appeal for granting a stay. It characterises the test as involving an assessment of the risk of injustice or irremediable harm if a stay is not ordered (see Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065, and Department for Environment, Food and Rural Affairs v Downs [2009] EWCA Civ 257). The Respondent contends that a delay in the information would not cause the Appellant injustice or harm, noting that the request dates back to 18 July 2022, some three years ago. The Respondent suggests that the Appellant’s opposition to the stay is “unprincipled and unsupported” and “wrong as a matter of law”. The Respondent contends that absent a stay, the purpose and function of the proposed appeal would be stifled if the Respondent were ordered to provide Part 18 replies prior to the Court of Appeal’s decision. The Respondent draws a distinction between money, which can be returned, and information, which “once provided cannot be erased,” arguing that there will be “irremediable harm” if a stay is not granted, and the appeal succeeds.

The Appellant submits that since the application for permission to appeal is not before me and an application for a stay has been made to the Court of Appeal it would not be correct for me to entertain the application now. The Appellant refers to the White Book commentary at 52.16.3, which states that an application for a stay of a lower court order should be made to the lower court or to the appeal court. The Appellant further submits that a stay is the exception rather than the rule, requiring solid grounds, normally involving some form of “irremediable harm if no stay is granted”. The Appellant does not accept that the application meets this test. The Appellant points out that the Appellant’s Notice does not, in fact, request a stay in relation to any costs order and argues that an order requiring the Respondent to provide answers is “not an onerous or prejudicial exercise” and “clearly does not involve any form of irremediable harm,” describing it as a “straightforward task involving ‘yes’ or ‘no’ answers”. The Appellant relies on the case of Edwards/Raubenheimer v Slater & Gordon UK Limited [2022] EWHC 1091 (QB), where a stay in relation to an order for further information was refused, referring to Warby LJ’s observation in that case that “compliance with the order for further information would show whether that aspect of the proposed appeal would be academic in the sense that there is nothing to argue about”, and suggests the same reasoning should apply here.

I accept that I have a parallel jurisdiction with the Court of Appeal to grant a stay of my own order given that I am not functus and that I am considering consequential matters. The question, therefore, is whether the high threshold for granting a stay has been met in this instance. The core of the Respondent’s argument for a stay rests on the assertion that information, once provided, “cannot be erased” and that compelling the Respondent to respond to the request would stifle its appeal. While I appreciate the distinction the Respondent draws between the provision of information and the transfer of money, the nature of the request must be considered. It has been outstanding for a long period because the Respondent has declined to answer. The Appellant has pursued the information through the Application and then this appeal, and I have found in his favour. As the Appellant correctly points out, the questions posed are not on their face difficult to answer. The Respondent accepted in submissions that it had a duty to divulge a commission, as per Tankard v John Fredericks Plastics [2008] EWCA Civ 1375, but argued that it was not under a general duty to confirm that such a commission had not been paid. However the provision of further information which confirmed that this was indeed the case can hardly be regarded as the source of any harm. If the position is in fact more complex, then the client should be in a position to argue, on an informed basis if it is open to him to do so, that the cash account was deficient. That was the purpose of the request.

The fact that a step ordered in the proceedings cannot be undone is not the same as one which will cause irreparable harm if later reversed on appeal. This is not akin to a payment of money that might be difficult to recover, nor does it carry the same weight as, say, mandatory disclosure that could prejudice a party in subsequent proceedings. Furthermore, I find the reasoning in Edwards/Raubenheimer, to be highly persuasive. The purpose of such an order for further information is precisely to clarify matters. If, as Warby LJ noted, compliance with the order may reveal whether the appeal is itself academic on its facts (either way), then that is a relevant matter, and a stay would simply frustrate a necessary clarification at this stage. The Respondent’s argument that the provision of this information would cause “irremediable harm” or stifle the appeal is, in my view, unconvincing given that a point of principle is identified. Indeed the nature of the harm that would be caused is opaque. I am not persuaded that refusing a stay would place the Respondent in an unjust position or compel a breach of my order. Compliance with an order for information is an expected part of litigation, and the Respondent has not demonstrated that compliance would create irreversible prejudice so severe as to warrant delaying the effect of the Judgment. The balance of justice does not favour a stay in these circumstances. The immediate provision of this information could, in fact, facilitate the efficient resolution of the underlying dispute, particularly given the straightforward nature of the information sought, regardless of any further appellate process.

The Respondent has not, in my view, met the stringent test for a stay. I therefore refuse the Respondent’s application for a stay.

The general rule, as set out in CPR 44.2(2)(a), is that the unsuccessful party will be ordered to pay the costs of the successful party. I allowed the appeal on all grounds for which permission was given. It follows that the Appellant is the successful party in relation to the appeal.

The Respondent invites me to make “some other order” in relation to the appeal costs under CPR 44.2(2)(b), primarily due to the Appellant’s conduct. The main contention is that the Appellant failed to file the relevant Part 18 Request at all for the hearing before the Costs Judge and this omission was only rectified for the appeal by the Appellant filing a supplemental bundle two days before the appeal hearing, some eleven months after the hearing below. The Respondent argues that this procedural error should attract cost consequences akin to an amendment to a statement of case. The Respondent proposes “no order as to costs” or a 50% reduction.

The Appellant submits that the Respondent’s argument in relation to the late production of the request was fully considered in my Judgment. I referred to the fact that it had been served on the Respondent nine months before the hearing before the Costs Judge and was similar or identical to those in other cases. I also noted that at the hearing both parties appeared to have proceeded on the basis that the Judge knew what information was requested. I further observed that the Respondent had received the request in advance and took no point about a procedural failing before the Judge; the document could simply have been shown to him at the hearing. The Appellant contends that any failure to include the request in the original appeal bundle had no costs consequences because the Respondent had received them months prior, addressed their substance in its skeleton argument for the appeal, and their late inclusion did not lengthen or otherwise alter the course of the appeal.

As the Appellant points out, the issue of the request not being formally before the Judge at the hearing below was addressed in my Judgment. The Respondent took no point about any procedural failing before the Judge (a matter the Judge commented on). The omission of the request from the bundle for the appeal was rectified and did not, in my view, cause such prejudice or alteration to the appeal as to justify departing from the fundamental principle that costs follow the event where an appeal has been allowed. I am unable to accept the Respondent’s contention that the Appellant’s conduct, in itself, warrants an order for “no costs” or a reduction of the magnitude suggested (rather than a more modest adjustment to individual items in the cost schedule – see further below). The Appellant succeeded on the appeal and is entitled to its costs.

The Appellant asks that the Respondent be ordered to repay any sum paid by the Appellant pursuant to the November 2023 Order. Given that I have allowed the appeal on the decision that led to that order that submission is in my view correct.

In relation to the Hearing Below Costs, the Appellant relies upon a statement of costs dated 17 July 2025, claiming a total of £9,598.32 (the “Third Statement of Costs”) covering the period 6 September 2023 to 7 November 2023. The hearing before Costs Judge Rowley was on 14 September 2023, with the decision delivered on 31 October 2023 and, in relation to consequential matters, on 15 November 2023. It is contended that most of the work was done on documents, predominantly by a Grade B fee earner, Mr Mark Carlisle, with Grade A input, and that the work was appropriately divided. It is also asserted that the Grade A and Grade D hourly rates were equivalent to guideline rates for National Band 2 in 2013.

In relation to the Appeal Costs, the Appellant refers to a statement of costs dated 22 October 2024 (the “First Statement of Costs”), claiming a total of £16,915.36. The Appellant argues that the work done on documents was substantial involving the drafting of the Appellant’s Notice, Grounds of Appeal, and preparation of the appeal bundle. This work was divided between Grade A and Grade D fee earners, mostly within guideline hourly rates. Counsel’s fee of £7,000 is noted to be the same as that of the Respondent’s counsel. The Appellant further requests an adjustment in relation to attendance at the appeal hearing, noting that a Grade B fee earner (Mr Carlisle) was identified in the schedule, but a Grade D fee earner actually attended. The global sum claimed is put forward as both reasonable and proportionate for a one-day High Court appeal.

For Post-Judgment Costs, the Appellant relies on a statement of costs dated 14 July 2025 (the “Second Statement of Costs”), claiming a total of £4,298.76. It is submitted that this work was done after the appeal hearing, that the work on documents was modest and restricted to the bare minimum required after the appeal hearing and handing down of judgment.

I have considered and rejected the Respondent’s submission as to the appropriate order in so far as it is based on conduct alone, earlier in this Judgment. However, in relation to the hearing below, the Respondent contends that it dealt with both disclosure and Part 18 Requests, and the Appellant only succeeded on the latter on appeal (a “win-loss” outcome as the Respondent described it). Furthermore, the Third Statement of Costs was not served prior to the hearing below, in contravention of CPR 44 PD.9.5(4). If a costs order is appropriate at all for the Hearing Below Costs, the Respondent argues that the schedule is not apportioned to reflect the lack of success on the disclosure application and includes costs relating to wider matters. It is said that counsel was not instructed for the application, making conference charges questionable. Further, it is suggested that two fee earners were not reasonably required for that hearing, and Mr Carlisle’s time on the application is high. The Respondent proposes significant reductions, suggesting a total of £3,000 plus VAT as reasonable and proportionate for the hearing below.

More generally, the Respondent challenges the hourly rate for Mr Carlisle, an unqualified fee earner (a costs draftsman) listed as Grade B. The Respondent argues that Mr Carlisle cannot justify a Grade B rate and should be limited to no more than a Grade C rate, specifically £190 for Leeds (National Band 2), given his location and the lack of qualifications. Various items across the schedules are challenged as being high, inexplicable, duplicative, administrative, or irrelevant to the issues. Specifically, “attendances on others” are deemed high given counsel’s limited involvement. Counsel’s fee for the appeal it is suggested should be £5,000 plus VAT, lower than claimed. Work on documents is described as “extraordinary” with specific items challenged for duplication or lack of relevance, such as reviewing Mr Chapman’s witness statement or preparing for a hearing Mr Carlisle did not attend.

For Post-Judgment Costs, the Respondent again cites the high nature of costs, Mr Carlisle’s rate, and the inclusion of non-recoverable work such as reviewing attendance notes of the hearing. The Respondent suggests a sum of £500 plus VAT.

I acknowledge that there is some force in the Respondent’s submissions in relation to the Appellant’s procedural failings, particularly the failure to file the Part 18 Requests before Costs Judge Rowley, and the belated submission of the supplemental bundle for the appeal. While I found that these failings did not ultimately alter the course of the appeal itself, as the Respondent had received the requests well in advance and addressed them in their skeleton argument, they do form part of the overall conduct which I must consider in the summary assessment.

The starting point is to consider what would have been the appropriate costs order had the Appellant succeeded on the Part 18 application in circumstances where (as was the case) he lost on the disclosure application; permission to appeal having been refused on this point. Thus, in effect and as the Respondent submits, the Appellant achieved a "win and a loss" within the same hearing, which points towards the appropriate outcome being no order as to costs. The amount of time and resource devoted to the arguments in relation to disclosure, reflected in the Judgment below, appear to me to be at least as significant as those which were directed towards the Part 18 request. If an issues-based cost order had been made, then parity would likely have been the outcome. If some further encouragement was needed to reach the conclusion that the Respondent contends for, then that can be found in the fact that the Appellant's statement of costs for the hearing below was not served prior to that hearing, a clear contravention of CPR 44 PD.9.5(4). The schedule was dated 17 July 2025, nearly a year and ten months after the hearing date; and an unexplained breach of mandatory rules. I therefore conclude that there should be no order as to costs in respect of the hearing before the Costs Judge (as set out above there will be an order for reimbursement of the costs paid by the Appellant to the Respondent in respect of the hearing below).

The Appellant claimed a total of £16,915.36.

The Appellant claimed £447.30 for letters/emails and £140.60 for telephone attendances. The Respondent argued that these were high. I allow 1.5 hours at Mr Green's Grade A rate (£272) and 1 hour at the Legal Assistant's Grade D rate (£126) for all attendances on others, totalling (£272 x 1.5) + (£126 x 1) = £408 + £126 = £534. This represents a modest but appropriate reduction.

The Appellant claimed £7,000 for Ms Gopal's hearing fee. The Respondent suggested £5,000. Given that this was a High Court appeal, and that the Respondent's own counsel’s fee was the same, I conclude that the fee of £7,000 was reasonable and proportionate for the hearing itself.

The overall claim for work done on documents was £4,699.70.

Items 4, 5, 8, 16: The Respondent argued that these items involved duplication or were administrative. While some tasks may have had administrative components, I do not find them wholly duplicative or unreasonable given the work required in preparing an appeal.

Item 6(Drafting Appellant's Notice): The Appellant claimed 1.2 hours by Grade B and 3.5 hours by Grade D, totalling £1,268.50. This is, in my view, a high charge for the single document which was before me. I reduce this to 3.0 hours at Grade A rate for Mr Green (£816.00).

Item 14 (Reviewing the Witness statement of Carl Chapman): This was claimed at 0.7 hours by Grade A for £190.40. As the Respondent observed this was not directly relevant to the appeal issues. I therefore disallow this item.

Item 17 (Drafting instructions to counsel): This was claimed at 2.4 hours by a Grade A fee earner at a total of £652.80. This is a significant amount of time for drafting instructions. I reduce this to 1.5 hours at Grade A (£408.00).

Item 18 (Collating enclosures for instructions to counsel): This was claimed at 1.4 hours by Grade C giving £176.40. The Respondent argues that this is an administrative task. I allow 0.5 hours for this item (£63.00).

Items 20 and 21 (Drafting supplementary bundle index and collating documents): The total claimed was £75.60. The Respondent argued that these should be disallowed due to the conduct argument in relation to the Part 18 request. As I have dismissed the conduct argument as a basis for departing from the costs principle, I will not disallow them entirely. However, given that these documents should have been available earlier, I allow 50% of these items, totalling £37.80.

Item 24 (Mr Carlisle’s preparation for hearing): This was claimed at 1.0 hour at a rate of £275.00 (only Mr Carlisle is claimed at this rate). The Appellant conceded that Mr Carlisle did not attend the appeal hearing and as the Respondent pointed out he was not managing the file. I disallow this item.

Overall Adjustment to Work on Documents: The original claim was £4,699.70. The reductions and adjustments are to the following items:

The total reductions are: £452.50 + £190.40 + £244.80 + £113.40 + £37.80 + £275.00 = £1,313.90. The adjusted Work on Documents is: £4,699.70 - £1,313.90 = £3,385.80.

Attendance at hearing: The Appellant claimed 3.0 hours at Mr Carlisle’s rate of £275, totalling £825.00. The Appellant conceded that a Grade D fee earner attended at £134. I allow 3.0 hours at the Grade D rate of £134 = £402.00.

Travel and Waiting: The Appellant claimed 1.0 hour at Mr Carlisle’s rate of £275, totalling £275.00. Again, this should be at the Grade D rate. I allow 1.0 hour at the Grade D rate of £134 = £134.00.

Court fees: £259.00. I allow this as claimed.

The subtotal (before VAT) is therefore: £534.00 (Attendances on others) + £7,000.00 (Counsel's fee) + £3,385.80 (Work on documents) + £402.00 (Attendance at hearing) + £134.00 (Travel/Waiting) + £259.00 (Court fees) = £11,714.80.

The addition of VAT is: £11,714.80 x 0.20 = £2,342.96. The Total assessed on the First Statement is therefore: £14,057.76. I do not consider that any further adjustment for conduct is required beyond the reductions made to individual items above.

The Appellant claimed a total of £4,298.76.

Work done on documents was claimed at £1,285.40.

Item 1 (Reviewing attendance note from hearing): This was claimed at £550.00. I agree that this is not recoverable as it is duplicative, the firm's representative having attended. I disallow this item. The adjusted work on documents is therefore £1,285.40 - £550.00 = £735.40.

Attendances on others (Letters/emails): This is claimed at 1.8 hours by a Grade A fee earner giving £489.60. The Respondent argued that this was high, given that it only involved the Court. I allow 1.0 hour at Mr Green's Grade A rate (£272.00).

Attendances on others (Telephone): This was claimed at 0.7 hours by Grade A for £190.40. I will allow 0.5 hours at Mr Green's Grade A rate (£136.00).

Counsel's fees: This was claimed at £875.00. This relates to advice/documents post-judgment. I consider this to be a reasonable charge and will allow it.

The subtotal (before VAT) is therefore: £735.40 (documents) + £272.00 (others L/E) + £136.00 (others Tel) + £875.00 (counsel) = £2,018.40.

The addition of VAT gives: £2,018.40 x 0.20 = £403.68

The total allowed on the Second Statement is accordingly £2,422.08.

For the reasons set out above, I refuse the Respondent's application for a stay in relation to the provision of answers to the Part 18 Requests. In relation to costs:

I summarily assess the Appellant's costs as follows:

Therefore, the total sum to be paid by the Respondent to the Appellant is £16,479.84