Octoesse LLP v Trak Special Projects Ltd

[2016] EWHC 3180 (TCC)

Following the successful enforcement of an adjudicator’s decision, Trak asked for its costs to be summarily assessed. These costs included the costs incurred by a firm of construction claims consultants. The costs covered consideration of the claim and evidence; preparation of the defence and a witness statement; instructions to counsel; liaison with the court; and attendance at court. Trak said that they were acting as a litigant in person who through CPR Part 46.5 can recover costs “which would have been allowed if the work had been done or the disbursements had been made by a legal representative on the litigant in person’s behalf”.

Octoesse said that following the CA case of Agassi v Robinson [2005] EWCA Civ 1507, the consultants’ costs were not recoverable. They were neither work done by the litigant-in-person nor disbursements which would have been allowed if made by a legal representative. 

Mrs Justice Jefford disagreed noting that where a litigant-in-person seeks to recover the costs of a consultant’s assistance, the relevant question is whether, in the particular instance, the consultant’s costs are recoverable as a disbursement. That question is answered by asking whether those costs would have been recoverable as a disbursement if it had been made by a solicitor. Costs would be recoverable as a disbursement by solicitors if the work was such as would not normally be done by solicitors.

The Judge further observed that there were distinct features of adjudication and adjudication enforcement proceedings which can and should be taken into account in considering what disbursements would be recoverable if made by solicitors and which would, in consequence, also be recoverable by a litigant in person. These were as follows:

(i) In the adjudication process itself, parties are often represented by claims consultants or other consultants. If solicitors are instructed on the enforcement proceedings, particularly where they have not acted in the adjudication, it would, therefore, be common practice, and in many cases necessary, for them to seek the assistance of the consultants involved in the adjudication;

(ii) Given the accelerated timetable used by the TCC in adjudication enforcement cases, it may be necessary for solicitors, for example when drafting witness evidence, to seek the assistance of those who represented the parties in the adjudication.

The Judge also noted that there had been a number of cases where the costs of claims consultants had been recovered when they provided services in connection with an adjudication enforcement, including NAP Anglia Ltd v Sun-Land Development Co. Ltd [2012] EWHC 51, where Mr Justice Edwards-Stuart said:

“In my experience it is not that common for solicitors to be instructed for the first time in a dispute following the conclusion of an adjudication and solely for the purpose of taking proceedings to enforce the adjudicator’s decision. Accordingly, this is a factor which must be borne in mind when considering the reasonableness of the costs in question. I do not accept the submission...that such an arrangement inevitably involves duplication...On the contrary, I regard it as fairly self-evident that it would be more economical, in terms of both time and money, for NAP’’s solicitors to take advantage of HCC’’s already acquired knowledge of the documents and the issues in the adjudication, rather than read themselves into the documents from scratch. HCC will (or should) have had the facts at their fingertips and been familiar with the documentation produced in the adjudication, as well as being broadly aware of what other documents might be in the possession of NAP.

24. Nevertheless, I do not consider that the court can adopt a blanket approach to the assessment of the costs claimed in respect of HCC: they need to be looked at on an item by item basis. It is of course obvious that NAP should not be able to recover costs incurred by HCC unless those costs were directly attributable to the conduct of this application and are not greater in amount and [sic] the costs that would have been incurred by the solicitors if they had done the relevant work themselves.

25. For example, I consider that it would be reasonable for Prettys to ask HCC for its views on the contents of a witness statement served on behalf of Sun-Land in response to the application if that witness statement raised matters of detail in relation to the conduct of the adjudication or the issues raised in it.”

Mrs Justice Jefford concluded that costs incurred by claims consultants assisting a litigant in person will usually be recoverable on adjudication enforcement proceedings, assuming that those consultants acted in the adjudication. They would be familiar with the factual background and the conduct of the adjudication. The Judge dealt with the costs claimed as follows:

“ (i) I do not consider that the costs of liaising with the Court and preparing the schedule of costs (a total of £300) are recoverable as this is very much work which solicitors normally do and where they would have no need to rely on claims consultants.

(ii) I reduce the time spent instructing and liaising with counsel by 50%, giving a sum of £225. I do so recognising that, if solicitors were instructed, they might well seek the assistance of claims consultants in liaising with counsel but it is unlikely they would wholly rely on them.

(iii) Further, the estimated attendance at Court was 4 hours plus 2 hours travelling at the full hourly rate. The hearing lasted 2.5 hours and I would not normally expect a full hourly rate to be claimed for travelling. I reduce this amount to £525.”

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