i) whether any deduction should be made from the costs awards in the Respondents' favour to reflect legal arguments on which they did not succeed and/or criticisms made of their evidence; and
ii) the amount of the interim payments on account of costs.
"In particular the number of points and authorities being sought to be raised is often – and increasingly – completely out of step with the hearing time listed. The result is that on a number of occasions counsel have either taken submissions at excessive speed (as noted for example in Libyan Investment Authority v Credit Suisse International  EWHC 2684 (Comm) [139-140] where experienced transcribers were unable to keep up with the pace of speech) or have sought to conduct legal argument by simply giving the judge a note of key passages in authorities which they would wish the judge to read and consider in depth after the completion of the hearing.
These practices are unacceptable. The lists are always very busy and judges have very limited time available. The oral hearing is the occasion when arguments must be raised and adequately ventilated by the parties. Judges' judgment writing time is limited and is for writing judgments. It is not sufficient to permit of it standing as an extension of the time allocated for oral argument.
Parties should therefore note that:
• Careful consideration needs to be taken to what is to be covered in the hearing time, the pace at which documents/authorities can be taken and the time needed for oral argument on the issues raised.
• This consideration should tend to the number of issues which can properly be dealt with in oral argument and the authorities by reference to which legal issues will require to be delineated (see here also Guide F12.1, F12.4, J5.3).
• Inaccurate hearing estimates may result in a case being stood out of the list (either before the hearing or part heard) and relisted for a realistic time estimate with no expedition of the relisting. There may also be costs consequences.
The Judges of the Court would also urge parties - in the interests of proportionate litigation - to give careful consideration to the number of points which are run, whether peripheral points will realistically lead anywhere if the primary points fail and which legal arguments are realistically open for argument at first instance."
i) The Respondents were overwhelming successful on the applications.
ii) So far as the Gleeson v Wippell point is concerned, it was the decision to pursue the point in the hearing, rather than the investigation of the point, which should be reflected in the costs order.
i) The incurred costs claimed by D2/D3 are some £1.7m, of which counsel fees comprise £570,000 (ignoring VAT).
ii) The costs incurred by D1 were £417, 000, some £227,000 of which is made up of counsel fees (ignoring VAT).
iii) By comparison, I am told that the incurred costs of the Claimants, who were making the application, total £414,000. Of that sum, £230,000 represented counsel fees.
"In a case such as this where very large amounts of money are at stake, it may be entirely reasonable from the point of view of a party incurring costs to spare no expense that might possibly help to influence the result of the proceedings. It does not follow, however, that such expense should be regarded as reasonably or proportionately incurred or reasonable and proportionate in amount when it comes to determining what costs are recoverable from the other party. What is reasonable and proportionate in that context must be judged objectively. The touchstone is not the amount of costs which it was in a party's best interests to incur but the lowest amount which it could reasonably have been expected to spend in order to have its case conducted and presented proficiently, having regard to all the relevant circumstances. Expenditure over and above this level should be for a party's own account and not recoverable from the other party. This approach is first of all fair. It is fair to distinguish between, on the one hand, costs which are reasonably attributable to the other party's conduct in bringing or contesting the proceeding or otherwise causing costs to be incurred and, on the other hand, costs which are attributable to a party's own choice about how best to advance its interests. There are also good policy reasons for drawing this distinction, which include discouraging waste and seeking to deter the escalation of costs for the overall benefit for litigants".
i) The hourly rates claimed by D2 and D3 are significantly higher than the guideline rates, those by D1 less so, but still in excess.
ii) D2/D3's solicitor team comprised 8 fee earners.
iii) I am satisfied that the level of counsel fees incurred by all three Respondents is significantly higher than "the lowest amount which it could reasonably have been expected to spend in order to have its case conducted and presented proficiently, having regard to all the relevant circumstances".
i) D2/D3 are entitled to an interim payment of £400,000.
ii) D1 is entitled to an interim payment of £180,000.
Déjà enregistré ?