Excelerate Technology Ltd v Cumberbatch & Ors

In Excelerate Technology Ltd v Cumberbatch & Ors (Rev 1) [2015] EWHC 204 (QB) (16 January 2015) the Claimant made an application to the Court for its costs budget to be increased from £160,000 to around £172,000. The application was made by them to reflect what their position was after its costs budget had already been agreed by the Court.

HHJ Brown on looking at the Claimants revised costs budget noted that the increased costs were rightly sustained and could not have been forseen and budgeted for by the Claimant. He observed that it was not, in the circumstances, feasible for the Claimant to make an application to the Court to agree or vary them but that he would make a note that the application for extra costs was reasonable and fair so as to support any detailed assessment made regarding them. He continued that there was a lot at risk for the Claimants, not only for them to win an effective judgment and costs award but for the continuation of its company and jobs for its employees.

The Judge awarded indemnity costs against the Defendants and heavily criticised them citing that because of their failure to deal with the aspects of disclosure in the matter, in the proper manner, this had resulted in greatly increased costs for the Claimant and therefore it was only just and proper that they the Defendants should shoulder the costs on an indemnity level.

HHJ Brown further referred to CPR 1,2, and 4 and the duties of each party to assist the court and each other so as to achieve the overall objective and the smooth running of the proceedings despite the parties being on opposing sides. He argued that because of this the Claimant should not have to demonstrate on detailed assessment why it wanted to deviate from that budget but on a practical level it would be advisable to give the reason why so as to assist the judge appointed on the detailed assessment.

The Judge further made an order for 90% of the actual costs to be paid on account reasoning that in any event that much would most likely be payable upon detailed assessment.

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