 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |
Jersey Unreported Judgments |
||
|
You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Patel & Ors v JTC Trust Company Limited & Ors (Royal Court : Hearing (Civil)) [2025] JRC 088 (28 March 2025) URL: https://www.bailii.org/je/cases/UR/2025/2025_088.html Cite as: [2025] JRC 088, [2025] JRC 88 |
||
[New search] [Help]
|
Before : |
Advocate David Michael Cadin, Master of the Royal Court |
|
Between |
(1) Maya Mayur Patel (2) Mayur Patel (3) Mumta Patel (4) Priyanka Patel |
Plaintiffs |
|
And |
(1) JTC Trust Company Limited (formerly Minerva Trust Company Limited (2) The Estate of Prakashchandra (3) Vimalrai Patel |
Defendants |
|
And |
(1) Prakash Chandra Patel (2) Gaurang Patel (3) Illakumari Patel (4) Parthiv Patel (5) Akash Patel (6) Vimalrai rai Patel (7) Darshnaben Patel (8) Alakh Patel (9) Harshal Patel (10)Laxman Varsani (11)Chaitanya Varsani (12)Medha Varsani |
Third Parties |
The Plaintiffs excused from appearance.
Advocate J. P. Speck for the First Defendant.
The First Third Party and the Sixth to Twelfth Third Parties excused from appearance.
Advocate P. G. Nicholls for the Second to Fifth Third Parties.
judgment
the MASTER:
1. This is my judgment as to the appropriate order for costs in relation to an application by the First Defendant, JTC Trust Company Limited (formerly Minerva Trust Company Limited) ("JTC") for permission to discontinue proceedings against the Second to Fifth Third Parties, Gaurang Patel, his wife, IIlakumari Patel, and their children, Parthiv and Akash Patel (the "Gaurang Parties").
2. JTC was at all material times the trustee of three trusts established by the late Prakash Patel ("Prakash") between 1994 and 2007. Prakash had three children, namely Maya, the First Plaintiff; Vimal, the Third Defendant and Sixth Third Party; and Gaurang, the Second Third Party.
3. In December 2016, Prakash and other members of family entered into a family agreement (the "Family Agreement") and Maya, together with her husband and children, signed disclaimers in relation to each of the trusts, together with an indemnity in relation to one of the trusts. The beneficial interests under the trusts were then restructured to exclude Maya, her husband and children.
4. In January 2020, Maya, together with her husband and children, brought proceedings to set aside the disclaimers and the indemnity on the basis that they were procured in the absence of informed consent or alternatively were void by virtue of being procured by mistake and/or under duress and/or undue influence.
5. These allegations were disputed by JTC and, in the summer of 2020, it issued third party claims against the other signatories to the Family Agreement seeking to impound their interests under Article 46 of the Trusts (Jersey) Law 1984, to recover monies under a contractual indemnity contained in the Family Agreement, and/or to recover monies on the basis of alleged unjust enrichment.
6. Answers to the Third Party Claims were filed by the Third Parties on 30 November 2020 and in February 2021, by consent, Master Thompson ordered discovery and thereafter imposed a stay for alternative dispute resolution, which was subsequently extended until 30 July 2021. Discovery was completed by the end of May 2021.
7. On 15 June 2021, Advocate Nicholls for the Gaurang Parties wrote a detailed letter to Mourant, JTC's advocates, marked without prejudice save as to costs, and setting out why, he said, the third party claim had no realistic prospect of success and offering JTC the opportunity to discontinue the proceedings against his clients on the basis that they paid his clients' costs, to be taxed on the standard basis, if not agreed. That offer was rejected by Mourant on 14 July 2021.
8. The following day, Advocate Nicholls wrote to the parties in relation to a proposed mediation that had previously been canvassed in correspondence and set out his desire that any mediation should occur within the period of the stay ordered by Master Thompson.
9. On 12 August 2021, under cover of a letter marked without prejudice save as to costs, Mourant wrote to Advocate Nicholls and the advocate for the other Third Parties complaining about what it said was an "unhelpful" approach to mediation and noting that "the Third Parties were heavily involved in the circumstances which led to the current litigation [they] should be involved in any proposed mediation process from the outset [in] an all-parties mediation." However, Mourant also noted that if the Third Parties were unwilling to participate in an all-parties mediation, JTC would mediate with the Plaintiffs alone and in the event that settlement were reached, would surrender its discretion and seek directions from the Court in its capacity as trustee.
10. By emails dated 17 and 18 August 2021, Advocate Nicholls confirmed that his clients would participate in an all-parties mediation provided it occurred on 6 September 2021, but not otherwise. Subsequently, on 31 August 2021, Master Thompson gave directions for the filing of various potential summonses and ordered that, if no such summonses were issued, the parties should fix a date for further directions "within 14 days of conclusion of the mediation listed for 21st and 22nd October 2021 (if unsuccessful)".
11. That mediation took place in October 2021, albeit without Advocate Nicholls or the Gaurang Parties in attendance. Advocate Nicholls was contacted by the mediator on 29 October 2021, and he subsequently reiterated his clients' position in an email, namely that they would not contribute to a settlement, would not drop hands and expected payment of their costs which were in the region of £125,000 but would accept £100,000. Ultimately, the mediation was unsuccessful.
12. It was followed by a Calderbank offer from Mourant to all parties dated 15 November 2021 which proposed substantive terms for settlement of the Plaintiffs' claims and a drop hands settlement of the third party claims by way of a discontinuance with no order for costs. That offer was rejected by Advocate Nicholls the following day and he repeated his clients' position that they would only settle if their costs were met. Nothing further came of those offers.
13. Prakash died in March 2022 and in April 2022, in a judgment reported at Patel v JTC Trust Company Limited and Ors [2022] JRC 089, Master Thompson struck out that part of JTC's Third Party Claim relating to the claim under Article 46(1) of the Trusts (Jersey) Law 1984 but declined to strike out the claims based on the contractual indemnity or unjust enrichment.
14. Following that judgment, in May 2022, Mourant made a further offer to the Third Parties to drop hands, with each side bearing their own costs. That offer was rejected by Advocate Nicholls who once again stated that if JTC wished to discontinue, it would have to pay his clients' costs, to be taxed on the standard basis.
15. The proceedings came back before Master Thompson in June 2022, reported at Patel v JTC Trust Company Limited and Ors [2022] JRC 150, on an unsuccessful application by the Plaintiffs to amend their claim to bring additional claims against the late Prakash, Vimal and Gaurang. The Plaintiffs made a further application to Master Thompson to amend their claim, which was successful in part against Prakash and Vimal only, and reported at Patel v JTC Trust Company Limited and Ors [2023] JRC 009. Prakash and Vimal appealed against the Master's decision and the Deputy Bailiff allowed their appeal, in part, as reported at Patel v JTC Trust Company Limited [2023] JRC 152.
16. In November 2023, MacRae, D.B., set the matter down on the hearing list and gave directions to progress the matter to a trial.
17. On 1 December 2023, Mourant made a further offer marked without prejudice save as to costs, proposing amongst other things, a drop hands settlement in relation to the Gaurang Parties. That proposal gained some traction with the Plaintiffs' Advocate proposing that the lawyers meet to resolve matters. However, Advocate Nicholls once again stated that neither he, nor his clients, would be participating in any without prejudice meeting as they had no proposals to make and had previously set out the basis upon which they would consent to a discontinuance of the proceedings.
18. On 31 January 2024, Mourant wrote again to the parties on a without prejudice save as to costs basis. They noted that notwithstanding recent correspondence, the parties were not far apart, settlement was entirely possible and proposed a without prejudice meeting. They also noted that the Gaurang Parties were putting themselves in "a challenging position by declining participation in Alternative Dispute Resolution". That suggestion was roundly rejected by Advocate Nicholls who indicated that he had made his clients' position clear in previous correspondence.
"Furthermore, the Court encourages all the parties to explore ADR. Litigation in these cases in Jersey is extremely expensive, even for parties who are well resourced. The court encourages the parties to explore any ways of resolving this matter. The parties should bear in mind that resolution of these disputes by consent often results in an outcome which the court could never order, which is to the benefit of the parties and improves the prospect of there being a continuing relationship between them in the future. Parties should also consider that if there is clear admissible evidence as to why ADR did not take place or did not succeed, that may be something the Court may take into account when the question of costs falls to be considered."
20. Mourant picked up on the judicial encouragement and wrote to the other parties on 5 March 2024 proposing a without prejudice meeting of lawyers.
21. Advocate Nicholls responded succinctly stating that "[m]y clients' position remains unchanged". Mourant then asked for details of his clients' costs, and he responded stating that "at today's date my clients' costs total £238,781.16". That information was possibly less informative than it might have been given that the Gaurang Parties had been the subject of unsuccessful applications by the Plaintiffs and had obtained costs orders against them. When Mourant asked for a breakdown to identify the costs incurred on the Third Party Claim, Advocate Nicholls declined to do so on the basis that the litigation remained ongoing and such a breakdown would contain privileged and confidential information.
22. On 16 May 2024, Mourant made a further without prejudice save as to costs offer to Advocate Nicholls, noting that discussions had been ongoing with the other parties and that they were close to agreeing headline terms. This time, JTC offered a drop hands settlement with a contribution of some £89,000 towards the Gaurang Parties' costs. That offer was rejected by Advocate Nicholls who made a counter offer whereby JTC would pay either an agreed sum of £175,000 towards costs or that they would pay the Gaurang Parties' costs, to be taxed on the standard basis to 15 June 2021 and the indemnity basis thereafter. That counter offer was rejected by Mourant on 13 June 2024 when they repeated their previous settlement offer. I note in passing that the schedule of costs provided to me by the Gaurang Parties relating to the Third Party Claim, which includes costs on an indemnity basis since 15 June 2021, quantifies their total costs at £197,972, some £40,000 less than the total figure communicated in March 2024, and only marginally above that proposed in the counter offer.
23. By July 2024, it would appear that negotiations between the other parties were gaining momentum, and the Deputy Bailiff made an order, by consent, adjourning the trial which had been listed for 5 weeks and was due to start on 18 November 2024 and extending a stay for settlement discussions. On 8 October 2024, Mourant wrote to Advocate Nicholls noting that the substance of a settlement agreement had been reached by the other parties and stating that JTC intended to apply to discontinue the proceedings against the Gaurang Parties on the basis that JTC would agree to meet their costs to be taxed on a standard basis.
24. That offer was rejected by Advocate Nicholls who once again stated that his clients would agree to a discontinuance only on the basis that JTC paid their costs, taxed on a standard basis to 15 June 2021 and an indemnity basis thereafter. That offer was rejected by Mourant.
25. By 24 November 2024, a settlement had been reached between all parties other than the Gaurang Parties and the proceedings between them were discontinued on 17 December 2024 on the basis of a confidential settlement agreement which has not been shared with this Court or the Gaurang Parties. In January 2025, JTC issued a summons to discontinue the Third Party proceedings against the Gaurang Parties with "such order as to costs as the court sees fit". Although JTC was content for that application to be dealt with on the papers, Advocate Nicholls requested a physical hearing.
26. Both parties are agreed that the Third Party Proceedings should be discontinued. This is an application about costs only:
(i) JTC's position is that:
(a) it should pay the Gaurang Parties' costs up until 18 August 2021 (when the Gaurang Parties refused to mediate) on the standard basis, to be taxed if not agreed; and
(b) the Gaurang Parties should pay JTC's costs of the discontinuance application on the indemnity basis, to be taxed if not agreed.
(ii) the Gaurang Parties' position is that JTC should pay their costs up to 15 June 2021, to be assessed on the standard basis, if not agreed and thereafter on an indemnity basis, and that JTC should make an interim payment on account of those costs.
27. In support of its proposed orders, JTC submits that:
(i) at its heart, these proceedings arose from a family dispute, and it would have been beneficial if all members of the family who had been involved in the Family Agreement in 2016, which included the Gaurang Parties, had engaged constructively in settlement discussions;
(ii) the Gaurang Parties took an unreasonably obstructive approach to the litigation by refusing to participate in settlement discussions and/or mediation;
(iii) they should therefore be deprived of costs to which they might otherwise be entitled; and
(iv) given their rejection of JTC's offer to discontinue on the basis of standard costs and their insistence on an in-person hearing, the Gaurang Parties should pay the costs of the discontinuance application on the indemnity basis.
28. Conversely, the Gaurang Parties submit that throughout this litigation, they clearly and repeatedly set out the basis upon which they would consent to a discontinuance and that position was based on six factors:
(i) they regarded the third party claims as an obvious negotiating tactic on the part of JTC to try to bolster any potential settlement pot with the Plaintiffs;
(ii) they regarded the claims as inherently weak and misconceived in both fact and law;
(iii) the claims had, apparently, become weaker as the case progressed given that discovery had not produced a smoking gun and the claims themselves had been narrowed by application and/or amendment;
(iv) the Plaintiffs had twice failed to bring claims against Gaurang by way of amendment;
(v) JTC had "on no fewer than three prior occasions" accepted in its own without prejudice correspondence that it had absolutely no expectation that the Gaurang Parties would be required to contribute anything towards any settlement with the Plaintiffs as it was proposing a drops hands settlement insofar as they were concerned; and
(vi) the alleged refusal by the Gaurang Parties to participate in any settlement discussions was, self-evidently, no bar to settlement being achieved with the other parties to this dispute. It was those others who, the Gaurang Parties submit, were the "real parties" to the dispute as they were the ones who had taken steps to ensure that the Plaintiffs were excluded from the Family Agreement.
29. At its heart, this is an issue as to how the Court should deal with the costs of the Gaurang Parties who have adopted an intransigent stance in litigation, but whose June 2021 offer to allow the proceedings to be discontinued on payment of their costs was finally agreed to by JTC, over 3 years after it was first made.
30. The applicable principles on costs were summarised in MB and Services Limited and Golovina v United Company Rusal Plc [2020] JRC 099 at paragraphs 14 to 17 as follows - -
31. As to the position on indemnity costs, in Pell Frischmann Engineering Limited v Bow Valley Iran Limited and Others [2007] JLR 479, Commissioner Page stated -
32. The consequences of a party's failure to engage in mediation were considered by Commissioner Page in Café De Lecq Limited v R.A. Rossborough (Insurance Brokers) Limited [2012] (2) JLR 155 where he held that:
33. In Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, cited with approval in Café de Lecq above, the Court of Appeal held that in deciding whether to deprive a successful party of some or all of his costs on the grounds that he has refused to agree to ADR, it must be borne in mind that such an order is an exception to the general rule that costs should follow the event. The burden is on the unsuccessful party to show why there should be a departure from the general rule and requires it to establish that the successful party acted unreasonably in refusing to agree to ADR. Factors which may be relevant to the question of whether a party has unreasonably refused ADR will include (but are not limited to) the following - (a) the nature of the dispute; (b) the merits of the case; (c) the extent to which other settlement methods have been attempted; (d) whether the costs of the ADR would be disproportionately high; (e) whether any delay in setting up and attending the ADR would have been prejudicial; and (f) whether the ADR had a reasonable prospect of success.
34. The Court in Halsey rejected submissions that there ought to be a presumption in favour of mediation. However, judicial thinking in England Wales has moved on in last 20 years. In Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416, the Court of Appeal held that Dyson LJ's statement in Halsey to the effect that "to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court" was not a necessary part of his reasoning and that the Court can:
35. Churchill was followed in DKH Retail Limited & Ors v City Football Group Limited [2024] EWHC 3231 (Ch) where the English High Court ordered entrenched parties in a commercial dispute to mediate, which they did successfully, notwithstanding the defendant's view at the hearing that mediation had no realistic prospects of success. In so doing, the Court noted that:
36. In my judgment, the reasoning in Churchill applies with equal vigour in Jersey and there is no reason why the Court could not, if so minded and in accordance with the Overriding Objective and in particular Royal Court Rules 2004 1/6(6)(e), order parties to participate in alternative dispute resolution. However, the fact that the Court has the power to order parties to attend ADR, does not mean that that is its only power; the Court can also take a party's failure to engage in ADR into account when determining costs. As was noted in Gore v Naheed [2017] EWCA 369 (at paragraph 49), a failure to engage in ADR, even if unreasonable, does not automatically result in a costs penalty; it is simply a factor to be taken into account by the Court when exercising its discretion as to costs.
37. The Defendant, JTC, wishes to discontinue the proceedings against the Gaurang Parties, who submit that they have therefore prevailed and should, in the usual way, have their costs.
38. As to the basis of those costs, issuing proceedings but not pursuing them to a conclusion and abandoning them, could amount to unreasonableness such as to justify an award of costs on an indemnity basis, as reflected in the decision of the Court of Appeal in Dick v. Dick (née Naranjo) [1990] JLR N.2c where it held that:
39. However, as Commissioner Thompson held in Sheyko v Consolidated Minerals Limited [2023] JRC 099 "the starting point was not indemnity costs but an exercise of discretion." That discretion needs to be exercised in the light of Commissioner Page's comments in JFSC v AP Black (Jersey) Ltd [2007] JLR 1 where he held that:
40. In this case, JTC was not the plaintiff; it was a defendant to the claims brought by the Plaintiffs and as such, was not in sole control of the litigation. Accordingly, I think that the fact that it eventually discontinued, having settled with other parties, is less indicative of unreasonable litigation conduct on its part than might have been the case had JTC been, for example, the sole plaintiff.
41. JTC submits that it had no option but to join all of the relevant family members to the proceedings given that it was the Family Agreement which lay at the heart of this dispute. Accordingly, it submits that such that its actions cannot be categorised as being out of the ordinary or unreasonable such as might justify an award of costs on the indemnity basis. Whilst I readily accept that joining the Third Parties and keeping them in as parties was an option for dealing with these proceedings, I cannot accept that it was the only option, given that:
(i) JTC appear to have concluded by November 2021 that a discontinuance was appropriate for the Gaurang Parties, albeit at that stage it was offered as part of a global settlement with all of the other parties; and
(ii) a resolution was ultimately achieved without involving the Gaurang Parties.
42. In my judgment, JTC's actions in continuing to litigate against the Gaurang Parties for a further 3 years after it recognised that a discontinuance might be appropriate, could in theory amount to unreasonableness such as to justify an order for indemnity costs. However, whilst in an ideal world, it might have been desirable for JTC to try to bank the discontinuance offered by the Gaurang Parties, I do not think that the failure so to do, or its continued litigation against the Gaurang Parties, can be regarded as unreasonable in circumstances where:
(i) JTC was the Defendant to proceedings brought by the Plaintiffs;
(ii) the Plaintiffs, and the others parties which included the Second and Third Defendants and the twelve Third Parties, were not seemingly willing to settle; and
(iii) the proceedings were being actively managed to a conclusion by both Master Thompson and the Deputy Bailiff.
43. Advocate Nicholls submits that his clients made an offer to discontinue with payment of their costs on 15 June 2021, which position was eventually conceded by JTC on 8 October 2024. Accordingly, he submits that the Gaurang Parties have matched the offer they made a long time ago and should have their costs from the date of that offer on an indemnity basis. However, as the Royal Court held in Pirrwitz v AI Airports International Limited [2013] (1) JLR N.10, whilst an offer is highly relevant to the issue of costs;
44. If costs are to be awarded on an indemnity basis, the Gaurang Parties must establish unreasonableness on the part of JTC and for the reasons set out above, I am not satisfied that JTC's litigation conduct was unreasonable.
45. As to the Gaurang Parties' costs, this is not a case where they raised issues or allegations either on which they failed or which they raised improperly or unreasonably, such as might justify depriving them of all or part of their costs or ordering them to all or part of the unsuccessful party's costs following Elgindata. However, JTC submits forcefully that the Gaurang Parties' intransigent litigation conduct, and in particular, their refusal to engage with mediation, was unreasonable and they should be deprived of their costs as from the date of that refusal in August 2021. Further, it submits that whilst the Gaurang Parties may have reasonably considered that they had a strong case, their refusal to discuss that case in front of the other parties at mediation was itself unreasonable.
46. There is no doubt that Advocate Nicholls and his clients refused to attend the mediation scheduled for October 2021 and that they did not in fact attend. That mediation was unsuccessful, albeit that a resolution was eventually reached without the involvement of the Gaurang Parties. I cannot see any proper basis for finding that as a result of that non-participation by the Gaurang Parties in October 2021, they should be deprived of their costs accruing over the following 3 years of litigation.
47. It is also not the case that there was no engagement on the part of the Gaurang Parties. Firstly, they made an offer of settlement in June 2021. Thereafter they agreed to participate in a mediation provided it was scheduled expeditiously. When that proved not to be possible, they declined to participate, albeit without giving any reasons beyond stating that they did not see that the proposed delay in mediating was "in any way consistent with the overriding objective." Refusing to participate in these terms was plainly unreasonable given the absence of any, or any proper, explanation. I would respectfully remind practitioners of the guidance set out in the Jackson ADR Handbook which was referred to in PGF II SA v OMFS Company 1 Limited [2013] EWCA Civ 1288, where Briggs LJ held (at paragraph 30) that:
48. However, notwithstanding this refusal to participate, Advocate Nicholls did in fact speak to the mediator, and made a further substantive offer, in October 2021.
49. In my judgment, this is not a case of a simple refusal to engage in settlement discussions but rather a series of communications and/or negotiations between parties to highly contested litigation which, with the benefit of hindsight, look somewhat intemperate and rather intransigent. However, in my judgment, it is difficult to criticise Advocate Nicholls's position as being unreasonable in circumstances where:
(i) his letter of 15 June 2021 set out a detailed explanation of his clients' position;
(ii) JTC had accepted by November 2021 that a discontinuance might be appropriate;
(iii) JTC eventually indicated in October 2024 that it would pay the Gaurang Parties' costs taxed on a standard basis; and
(iv) a resolution was reached between all parties without the participation of the Gaurang Parties.
50. In my view, the strongest point that can be made against the Gaurang Parties is that the nature of this litigation concerned a family dispute, and arose from the Family Agreement. If it was to be resolved, it required the engagement of the family and in particular all of those family members who were directly or indirectly involved with the Family Agreement. That included the Gaurang Parties. Even if they maintained during the mediation or without prejudice discussion a refusal to contribute to any settlement, their presence alone might have had a beneficial and intangible effect on the other members of the family such that settlement might have been achieved earlier either at a mediation or in the aftermath thereof. These were in effect, the sentiments of the Deputy Bailiff set out at the end of his Act of Court dated 19 February 2024 at paragraph 19 above and reflect the subsequent comments of the English High Court in DKH Retail Limited & Ors v City Football Group Limited set out in paragraph 35 above. However, a failure to engage in a mediation does not of itself result in a costs' penalty; it is but one factor to take into account.
51. As to the other factors set out in Halsey:
(i) I think it difficult to speculate as to the merits of the case. There has not been any trial in these proceedings and there will not be one. Although the Gaurang Parties submit that the merits were on their side, Master Thompson did not strike out the whole of the Third Party Claim, and the Deputy Bailiff was of the view that the claims were sufficiently arguable to give directions for a 5 week trial.
(ii) It is evident from the correspondence that numerous attempts at settlement were attempted by various parties, including the Gaurang Parties.
(iii) I do not think, and it is not submitted that, the costs of ADR or any potential delay in ADR are relevant.
(iv) As to whether the ADR had a reasonable prospect of success, it did not succeed in 2021 despite the best efforts of the other parties, and when the matter settled 3 years later, it was as a result of discussions between Counsel other than Advocate Nicholls. It cannot therefore be said that the failure of the Gaurang Parties to attend was a tangible impediment to settlement.
52. Approaching this matter cautiously given that it is my only substantive involvement in a highly contested claim which has been extant for some 5 years:
(i) I am not satisfied that the litigation conduct of JTC has been unreasonable such as would justify an order for costs against it on the indemnity basis; and
(ii) I am not satisfied that the behaviour of the Gaurang Parties has been unreasonable such that they should be deprived of all or part of their costs.
53. In my judgment, the appropriate order is for JTC to pay the costs of the Gaurang Parties, of and incidental to the Third Party Proceedings, to be taxed on a standard basis if not agreed.
54. The principles to be applied when considering a payment on account of costs are well known and set out, for example, by Commissioner Bailhache in MB & Services Ltd v United Company Rusal PLC [2020] JRC 151:
55. In this case, the Gaurang Parties have produced a single page schedule of costs claiming:
(i) costs of £76,221.75 up until 15 June 2021, calculated on the basis of the appropriate Factor A rates together with a 50% Factor B uplift;
(ii) costs of £98,550 from 16 June 2021 to date on the basis of Advocate Nicholls' commercial rate multiplied by the number of hours; and
(iii) disbursements for counsel and eDiscovery providers in the sum of £23,201.16
56. No details have been given of the work carried out and Mourant, for JTC, submit that not only is the amount excessive but in the absence of any relevant details, the Court cannot properly carry out any rough and ready assessment.
57. In my judgment, the Court has sufficient information, in terms of its knowledge of the proceedings, its experience of taxations generally, and the schedule of costs, to carry out a rough and ready assessment to determine the figure which the Gaurang Parties "will almost certainly collect", and I reject JTC's submission that there should be no order for a payment on account. To do so would run contrary to the interests of justice identified by Beloff JA in Crociani (and cited with approval in MB & Services Ltd above).
58. Applying a broad-brush approach:
(i) this litigation has been hotly contested for a number of years and was proceeding to a 5 week trial in November 2024 when it settled in October 2024;
(ii) the Factor B uplift of 50% claimed by the Gaurang Parties for their standard costs does not appear unreasonable;
(iii) Advocate Nicholls' commercial rate will have to be reduced to reflect the award of costs on the standard basis as opposed to the indemnity basis, which gives a total for the post-June 2021 costs of £90,337.49;
(iv) little substantive detail has been provided in relation to any of the figures claimed for costs and following Procom (Great Britain) Ltd v Provincial Building Co. Ltd [1984] 1 WLR 557 (which was cited with approval in Montague Goldsmith AG (in liquidation) v Goswick Holdings Limited [2020] JRC 245B), the Court is entitled to discount those costs significantly:
(v) the absence of substantive narrative in the schedule is likely to obscure numerous, potentially significant, matters of detail relating to the bill that will have to be considered on taxation;
(vi) Advocate Nicholls is the only fee earner who appears to have been involved since June 2021 and notwithstanding that his firm may be small in terms of the number of fee earners available, I think it unlikely that all of the tasks for which he has charged time would have reasonably required partner-level involvement;
(vii) whereas in many cases, a figure of 50% of the sum claimed is an appropriate sum to award for the purposes of an interim payment, in this case, I think that a lesser percentage is appropriate, and I order 40% of the sum claimed, namely £75,904, to be paid by way of an interim payment on account of costs.
59. For the assistance of the parties, my provisional views on the costs of this application are that:
(i) whilst I accept that the application could have been dealt with on the papers, given that the summons required consideration of the complex factual and procedural background to the proceedings and that nearly 2,000 pages of material were filed for this hearing, it was not unreasonable for Advocate Nicholls to request a physical hearing and I was greatly assisted by the informed submissions of Counsel;
(ii) neither party has prevailed in that:
(a) I have ordered that the Gaurang Parties should recover their post-15 June 2021 costs on a standard basis, as opposed to the indemnity basis claimed;
(b) I have declined to deprive the Gaurang Parties of their post-18 August 2021 costs as sought by JTC.
(iii) subject to any further submissions, I would be minded to make no order for the costs of and incidental to the application to discontinue.