Mannings Organisation Limited & Anor v Joseph Henry Manning

This judgment is concerned with one issue: the assessment of the sum to be paid by Joseph Senior on account of the Claimants’ costs of the discharge application.

This decision should be read with my judgment (dated 14 May 2026) on the injunction and discharge applications ([2026] EWHC 1160 (KB)) (“the judgment”) and the judgment (dated 3 June 2026) which dealt with costs, case management directions and other matters ([2026] EWHC 1344 (KB)) (“the consequential judgment”).

For the sake of consistency and clarity, this judgment adopts the abbreviations used in my earlier judgments. References to “the order” and “the costs order” are to the orders made on 18 May 2026 and 3 June 2026 respectively.

For the reasons set out in paras. 6-9 of the consequential judgment, Joseph Senior was ordered to pay the Claimants’ costs of the discharge application. The Claimants had not served a statement of costs which dealt only with the discharge application and so they were directed to file and serve a statement of costs in relation to the discharge application by 4 p.m. on 3 June 2026 and Joseph Senior was allowed to serve brief written submissions in response by 4 p.m. on 5 June 2026.

Mr Power KC, counsel for the Claimants, asked for permission to respond to Joseph Senior’s submissions which I granted. Mr Power KC’s note was lodged on 8 June 2026 and on 9 June 2026, he sent me his clients’ statement of costs which, although duly served, had not reached me.

The Claimants explained that it was not now possible to distinguish the costs of the discharge application from the other costs of the litigation. They therefore submitted a statement of costs which set out all the costs they have incurred in the proceedings (£165,355.84) and asked for 40% of that total as a “good faith estimate” of the costs incurred responding to the discharge application (£66,142.34).

As to the costs incurred, Mr Power KC submitted that it was appropriate to allocate half of counsel’s brief fee (£16,250) and the other fees for advice and documents (£8,000) to the discharge application. It was also appropriate to allow half of the solicitors’ attendance time (£6,000) and the costs of preparing Mr Wallis’ statement (£11,160) to the application. That produces a total of £40,000 (i.e. roughly one-quarter of the total costs of the proceedings). If the costs of attendances etc are accounted for, the Claimants’ solicitor’s estimate of 40% is fair.

As to the payment on account, 75% of the incurred costs was said to be reasonable. The discharge application was hard fought; the Claimants’ solicitors sought to delegate work where it was possible and more efficient for a non-Grade A fee earner to do so. The costs of preparing Mr Wallis’ statement were reasonably incurred as it required a detailed review of the materials to allow him to answer a serious allegation. In any event, a discount of 25% is more than sufficient to address any of the criticisms made by Joseph Senior.

In summary, Mr Grant KC and Mr Jeffery submitted on Joseph Senior’s behalf that the Claimants’ statement of costs was not exclusively concerned with the discharge application. Impermissibly, it covered all costs incurred by the Claimants between 3 December 2025 and 3 June 2026. The fact that the statement sought the application fee for continuation of the injunction application was said to be symptomatic of the Claimants’ deliberate decision not to assist the court by providing a statement confined to the discharge application but to claim all their costs of the proceedings.

There were two questions for the court: first, what costs have the Claimants incurred in relation to the discharge application; secondly, what reasonable sum should be paid on account. In answering them, the court should have regard to Christopher Clarke LJ’s review of the relevant authorities in Excalibur Ventures LLC v. Texas Keystone Inc [2015] EWHC 566 (Comm). In particular, where there is any doubt, it should be resolved in Joseph Senior’s favour. The imminent trial means that this is not one of those cases where an interim payment mitigates the prejudice of a receiving party having to wait a long time to trial and a general reckoning on costs.

As to the costs incurred, Joseph Senior’s overarching point was that the Claimants had done little to distinguish between the costs of the discharge application and broader costs of the proceedings. Some costs could be safely attributed to the discharge application: for example, the costs of preparing Mr Wallis’ statement (£11,160). That said, other claimed items could not: for instance, the costs of attendance on clients, opponents and others. Taking matters in the round, Mr Grant KC and Mr Jeffery submitted that 20% of the costs of the return hearing (£70,000) can be reasonably apportioned to the discharge application which produces a sub-total of £14,000. If that is added to the time spent preparing Mr Wallis’ statement, the best estimate of the Claimants’ costs of the discharge application is £25,160.

As to the payment on account, it is submitted that the Claimants’ costs are likely to be substantially reduced on assessment. They should expect to recover between 50% and 60%. Taking the lower end of that range, an appropriate payment on account would be 50% of £25,160, namely £12,580 (including VAT).

There are two preliminary points. First, I do not accept that the Claimants made a deliberate decision not to assist the court by not providing a statement of costs which dealt exclusively with their discharge application costs. As was made clear in the Claimants’ solicitor’s e-mail which accompanied the statement, the costs of the discharge application could not be satisfactorily separated from the other costs of the litigation. For that reason, a pragmatic and reasoned decision was taken to provide a statement which itemised the Claimants’ total costs of the litigation and apportioned 40% of them to the discharge application.

Secondly, the discharge application was vigorously pursued on Joseph Senior’s behalf by Mr Grant KC and Mr Jeffery. Serious allegations were made against both the Claimants’ solicitors and counsel whom they instructed to attend the hearing before Foster J on 2 December 2025. Preparation of the Claimants’ response would necessarily have required their solicitors and counsel to review the documents in detail, to consider the draft witness statement and to give advice. Although the injunction and discharge applications were distinct, some points were inevitably relevant to both. That was especially so in relation to the heavily contested and linked questions whether there was a serious triable issue and whether full and frank disclosure had been given to Foster J. Joseph Senior’s submission that only 20% of the Claimants’ total costs are properly attributable to the discharge application does not, in my judgment, fairly reflect the seriousness of the allegation which he made; the substance of the work that would be required to respond; the nature of the issues arising in the disclosure application or their connection with the substance of the injunction application. In these circumstances, Joseph Senior’s proposal that the allowed percentage of costs should be assessed by reference to the proportion of his skeleton argument that dealt with the discharge application is an unreliable way to assess the costs incurred.

As to the costs incurred, having regard to the vigour with which Joseph Senior pursued the discharge application and the seriousness of the allegations which were made on his behalf, it is reasonable to proceed on the basis that half of counsel’s fees (both for the return hearing and the associated work advising in conference and on documents) should be allocated to the discharge application. Similarly, half of the solicitors’ attendance time can be fairly assigned to that application. The costs of preparing Mr Wallis’ statement were exclusively concerned with the discharge application. Therefore, the costs incurred in respect of work which can be safely attributed to the discharge application is approximately £40,000, that is say, very roughly 25% of the Claimants’ total costs of the litigation.

The costs of attendances on counsel and client; correspondence with the other side; work on the hearing bundles and work on counsel’s skeleton argument on the discharge application cannot now be allocated between the discharge application and other litigation costs. In those circumstances, some caution should be exercised in reaching a view about how much of the Claimants’ total costs should be allocated to the discharge application. Doing the best I can and having regard to the nature and substance of the issues arising, 10% of the total cost is allowed in relation to those items of work.

Therefore, in my judgment, 35% of the Claimants’ total costs are attributable to the discharge application, i.e. £57,874.44.

As to the payment on account, the court is required to determine a reasonable sum: CPR 44.2(8). As Christopher Clarke LJ found in Excalibur, a reasonable sum on account of costs will be an estimate dependent on the circumstances, the chief of which is that there will, by definition, have been no detailed assessment and so there is an element of uncertainty, the extent of which will differ widely from case to case as to what will be allowed on detailed assessment.

At paras. 23 and 24 of the Excalibur judgment, Christopher Clarke LJ explained that a reasonable sum would often be one that was an estimate of the likely level of recovery subject to an appropriate margin to allow for error in the estimation. That can be done by taking the lowest figure in a likely range or making a deduction from a single estimated figure or perhaps from the lowest figure in the range if the range itself is not very broad. In determining the amount, account needs to be taken of all the relevant factors including the likelihood, if it can be assessed, of the claimants being awarded the costs that they seek or a lesser and, if so, what proportion of them; the difficulty, if any, in recovering costs; the likelihood of a successful appeal; the parties’ means; the imminence of any assessment; any relevant delay and whether the paying party will have any difficulty in recovery if there is an overpayment.

There are, in my judgment, two principal factors in assessing a reasonable sum in this case: the difficulty distinguishing the costs of the discharge application from the broader costs of the litigation and the imminence of the trial (to be heard in a window starting on 20 July 2026). As to the former, a balance needs to be struck between the difficulty identifying the costs that are truly attributable to the discharge application and the cautious approach already taken to determining the costs incurred in dealing with it. As to the latter, the expedited trial means that the parties will not have to wait long for detailed assessment and some weight should be attached to that consideration. For the sake of completeness, I note that Mr Grant KC and Mr Jeffery do not rely upon the likelihood of a successful appeal; any argument based on the parties’ financial resources or any potential difficulty recovering any overpayment from the Claimants as factors which may be relevant to increasing the discount that should be applied in assessing a reasonable sum to be paid on account.

Having regard to all the relevant circumstances (including the absence of any costs budgets), it is likely that the Claimants will recover between 65% and 75% of their costs of the discharge application. Bearing in mind that some allowance for error of estimation should be made, the payment on account should be calculated by reference to the lowest end of that range, i.e. 65% of the Claimants’ incurred costs. For the sake of convenience, the sum due is rounded down to £37,600.

Joseph Senior shall, by 4 p.m. on 6 July 2026, pay the sum of £37,600 on account of the Claimants’ costs of the discharge application. I should be grateful if counsel could prepare a draft order to reflect my conclusion.

Once more, I should like to thank counsel for their assistance.