Anyone for tennis? The back & forth of rule change

Wimbledon is upon us and so, of course, we could expect to hear from Cliff Richard but not, this year, from the ranks of the strawberries and cream devouring spectators with a rousing rendition of ‘Summer Holiday’. Instead we hear from him through the quieter (presumably) and more sombre corridors of the Rolls Building.

Given the extent of work Chief Master Marsh appeared to accept may be required in Sir Cliff Richard OBE v The British Broadcasting Corporation & Chief Constable of South Yorkshire Police [2017] EWHC 1666 (Ch), someone is, however, singing for their supper. Dominic Woodhouse, Senior Advocate, reports. 


Chief Master Marsh decided that the matter was exceptional for the purpose of paragraph 7.2 of PD 3E and that the caps imposed therein upon the costs of preparation of the budget and the process of dealing with the parties’ budgets would therefore be lifted. The reasoning given (multiple drafts of the budget, necessitated in part by the suggestion of a split trial, re-drafts of the budget, deferral of the CCMC and a request for comment on the incurred costs) may well be expected to be encountered by practitioners in a great many matters they deal with. At face value, the ‘exceptionality’ hurdle has been placed here only marginally above knee-height.

Of equal interest is the Defendants’ request for comments to be recorded on costs already incurred. Invited to register his strong disapproval, Chief Master Marsh was decidedly reluctant to record a comment about the incurred costs in Sir Cliff’s budget. The Court should, in his view, exercise a degree of caution, recognising that although the incurred costs ‘appear to be substantial in absolute terms’, it was ‘quite impossible’ for the Court ‘to form any meaningful view’ about whether they could be properly characterised as unreasonable or disproportionate.

A comment reflecting that uncertainty, such as they appeared to be ‘substantial’ or ‘high’, would have little or no value, and to make comment that the costs were unreasonable or disproportionate, the Court would wish to ensure that such comments were made on a ‘sound footing’ rather than on an impressionistic basis; it would ‘wish to consider the utility of making a comment unless it is specific and well-founded.’

The judgment also reflects a degree of scepticism as to the value of such judicial recordings, commenting that such views as may be expressed are not binding on the Court on assessment, are not established findings of fact, and are only a matter to be taken into account. They may well be entirely nullified in the greater exploration of issues on detailed assessment, where the costs judge ‘will have the benefit of a full review of all the work that has been carried out’ and which Chief Master Marsh considers to be a ‘far safer basis for a review to be taken.’

Whilst the April 2017 changes to the budgeting rules were welcomed by many in making specific provision for comments to be made and recorded by the judge at the CCMC stage, there are still difficult issues at the heart of that exercise. The extent of costs already incurred, and the reasons for them, may be simply too dense and convoluted to be properly explained within the course of a short case management conference, and there may be features of the costs that it would be injudicious to explain part way through a case; the difficulties encountered for instance in obtaining the cooperation of a central witness, or the time devoted to a particular issue of causation with an expert that a party’s opponent may not yet be alive to.

Rules change slowly and in the context of those concerning budgeting, may someday evolve into an animal more suited to the realities and practicalities of litigation and court procedure.

There is certainly support here, a genetic signpost, for that organism to begin divesting itself of the latter half of paragraph 7.4 of PD 3E and the newly introduced CPR 3.15(4).


Dominic Woodhouse is a Senior Advocate at Victoria Square Chambers. 

To contact him about any of the matters raised in this article, please click here.


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