MASTER FONTAINE
Approved Judgment Dover Farm Developments and anor v Smith
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
MASTER FONTAINE (Sitting in Retirement)
Dover Farm Developments Limited
First Claimant
Terrence Raymond Lucas
Second Claimant
-and-
Philip Paul Smith
First Defendant
Lesley Smith
Second Defendant
Nikila Kaushik (instructed by Lee Bolton Monier-Williams LLP) for the Claimant
The First Defendant attended in person
The Second Defendant did not attend and at her request the court permitted the First Defendant to represent
Hearing date: 14 July 2025
APPROVED JUDGMENT
Master Fontaine:
Both parties in this defamation claim made applications which were heard before me at a remote hearing on 14 July 2025. The Claimants were represented by Counsel and solicitors and the Defendants, who are husband and wife, were in person, save that the Second Defendant appeared briefly only to confirm that she wished to be represented by the First Defendant to which I agreed.
The hearing had been listed for the Defendants’ application to strike out the claim (“the strike out application”). The Claimants then made an application for permission to amend their Particulars of Claim (“the amendment application”), which was listed at the same hearing. Neither application was successful. The Defendants’ application was dismissed. The Claimants’ application was refused because they had not provided to the court or to the Defendants a copy of an Amended Particulars of Claim containing all the amendments that they wished to make, but I granted permission to restore their application to amend the statement of case, with directions for service of the draft Amended Particulars of Claim and dates by which the Defendants were to indicate agreement or otherwise and if no agreement for the application to be re-listed. The Claimants’ amendment application did not come back to the court because the claim was stayed by my order of 28 July 2025 and the parties used the stay to engage in a successful mediation. One issue that was not resolved by the mediation was the costs of the hearing on 14 July 2025, which had been reserved to a further hearing. This judgment deals with that issue, without a hearing, and having received submissions in writing from both parties.
On the basis of the principles in CPR 44.2 (2) the general rule is that the Defendants would be liable to pay the Claimants’ costs of the strike out application, and the Claimants would be liable to pay the Defendants’ costs of the amendment application, but r.44.2(2)(b) provides that the court may make a different order.
There are factors which might indicate that a different order would be appropriate, namely:
The Defendants’ application had already been listed when the Claimants’ application was made. I directed it to be listed at the same hearing, so that there was no extra burden caused to the Defendants in appearing at the hearing of the amendment application. Likewise, although the Claimants incurred costs of attending the hearing of the Defendants’ application, they were able to list their own application at the same hearing.
The Defendants did not consent to the amendment application but subsequently consented to the Claimants’ further Amended Particulars of Claim that was provided following the directions given at the hearing. The Claimants submit that the Defendants should have consented to the reasonable amendments sough in the amendment application, and that the further amendments sought orally at the hearing were negligible, the Defendants were on notice of the substance of the further amendments and should have consented to them before the hearing. However the Claimants were professionally represented and the Defendants are litigants in person, and a litigant in person, (as well as the court), is entitled to expect a properly formulated amended statement of case in order to consider whether or not to agree to the proposed amendments. I note that when a fully amended draft was provided to the Defendants they were able to consent to the amendments, although that may well have been partly due to the fact that they were better informed about the correct approach to applications for permission to amend after the hearing.
The Defendants have not pleaded a CPR compliant Defence, and regardless of the amendments to the Particulars of Claim would have had to amend their Defence in any event for that reason.
Although neither party succeeded in their respective applications, the hearing was not wasted, in my view, because it enabled the parties, at my urging, to consider whether they would agree to a mediation conducted by the court. Although the court has power to order ADR, this proved unnecessary, as it was apparent that both parties were likely to be in favour of a mediation but that the Defendants were unlikely to be able to participate in a privately arranged mediation because of the costs involved. I also considered that a mediation would be the most likely method of ADR to achieve a resolution in this particular case. I ordered the mediation by order of 26 July 2025. It took place before Deputy Master Skinner on 19 September 2025 and was successful.
There is inevitably a considerable discrepancy between the costs incurred by each party, as the Claimants are able only to claim at the litigant in person rate of £19 per hour, and the Claimants have incurred professional legal costs. The Claimants claim costs of £7,716 in respect of the strike out application and propose that the sum of £493.32 be deducted from that in respect of the Defendants’ costs of dealing with the Amendment Application. The Defendants are each claiming time costs of £4,256 and disbursements of £207.36, totalling £8,719.36, but it is clear from the narrative that this relates to the entire claim from its commencement to settlement, and the work is not separately itemised, so it is clearly not a realistic costs statement for the amendment application.
I consider that the Claimants should have their costs of the strike out application as that was an application which had no prospect of succeeding for reasons given at the hearing. I do not consider that legal professionals would need to spend a great deal of time on that application because of its very obvious deficiencies, but I recognise that Counsel was instructed and prepared a full skeleton argument, which explained the issues on the application to the Defendants as well as the court. In assessing the Claimants’ costs I will deduct a percentage of 15% to reflect this and some of the factors referred to above, in particular that the hearing was likely to have been the key to putting in place a process that would ultimately settle the action, thus saving considerable costs for both parties.
The Claimants’ skeleton argument puts the Claimants’ costs of defending the strike out application at £7,716. This is a higher figure than the costs in the Statement of Costs for the hearing, which totalled £6,066.20 (including VAT) and the additional sum is not itemised, but I assume this reflects the additional costs of preparing submissions on costs and considering the Defendants’ submissions on costs. I note also that the Statement of Costs for the hearing does not differentiate between the costs incurred in each application and I will take that into account in my assessment.
I consider that the solicitors hourly rates are within the guideline rates, and time spent on attendances is reasonable, amounting to £1,189, but that 3 hours for preparation of the bundle for the hearing at £1,110 is excessive, and that by using a trainee solicitor for 2 hours for initial preparation and a check by a Grade B solicitor, the reasonable costs for this would be £600. Counsel’s fee of £750 (for a conference) and £2,000 (for the hearing) I consider to be high for the applications before the court, which were straightforward, and presumably were in respect of both applications. I will allow £2,000 for both the conference and the hearing. This totals £3,789, to which I will add the sum of £1,000 to reflect solicitor and Counsel time in dealing with costs. This brings the total to £4,789, which with VAT of £957.80 added makes a grand total of £5,746.80, before any percentage reduction is made. Applying a 15% reduction to reflect the factors I have identified above and a further 5% to take into account that the statement of costs was for both applications, this gives a figure of £4,597.44.
With regard to the Defendants’ costs, I have been assisted by the Claimant’ Counsel’s written submissions at paragraphs 11 to 13 as to the correct approach to determination of costs when litigants appear in person, and the reference to The Guide to the Summary Assessment of Costs (2021 edition) and the commentary in the White Book at Vol I at 46.5.3 as follows:
“The exercise is as follows. Find out in respect of the item, what, at the litigant in person charging rate, the total is. Compare that with 2/3 of the notional solicitor rate, give the lower of the two items. That does mean that the bill of costs joined by the litigant in person must be gone through in some detail item by item per Jacob J in Morris v Wiltshire & Woodspring DC 16 January 1998 unrep. A cost officer should keep in mind that it is appropriate to allow a litigant in person more time for a particular task than would be allowed to a solicitor: Mealing McLeod v Common Professional Examination Board [2000] 2 Costs L.R. 223 (Buckley J).”
I consider that the Claimant’s estimate for the Defendants' costs of the amendment application, in the sum of £493.32, calculated at two thirds of 2 hours of a Grade B solicitor’s time is appropriate, given the absence of a properly itemised statement of costs.
Thus setting the costs due from the Claimants to the Defendants against the costs due from the Defendants to the Claimants, the outcome is a net figure of £4,104.12 due from the Defendants to the Claimants. The date for payment of such costs was ordered to be 28 days from the date of the assessment of costs, namely by 4.00pm. 1 December 2025.