lawyer costume

"And therefore your honour, I rest my case, consensus ad idem, I object"


A litigant-in-person has been hit with a bill of almost £100,000 in costs, after the court slammed him for being "difficult to deal with, condescending" and "offensive".

Sir Henry Royce Memorial, a charitable foundation, brought a claim in the High Court for costs on an indemnity basis against former finance director Mark Hardy. The claim followed a previous trial where Hardy had accused Sir Henry Royce Memorial and its directors of fraud and false accounting.  

Hardy's accusations of wrongdoing by the directors were unproven. And the court ruled that his request for inspection of documents under the Companies Act was invalid, and not made for a proper purpose.

Judge Paul Matthews ruled that Hardy had a "rather condescending manner" and exhibited "unnecessary" behaviour when dealing with the other side, which resulted in "more time and resources" being spent on the "problems of tone and language than in addressing the real issues in the case." 

The judge said the matter did not require "such disproportionate efforts" from Hardy, and highlighted his "excessive correspondence", which ran to two lever arch files for the trial bundle. Hardy had also exhibited a 500 page transcript of a particular meeting, which the judge noted was not "more than remotely relevant to the issues in the case".

Hardy had "vigorously" insisted that a remote trial of his claim should be live streamed on the internet because there would be a great public interest with "possibly hundreds of requests to join". However, no more than 14 members of the public requested the link.

The judge said Hardy should not be excused for his behaviour just because he was a litigant-in-person. The problem was that Hardy had "no sense of responsibility to the system" and "no duty of the kind that would be owed by a lawyer to the court," said the judge.

The claimant sought to recover costs estimated at around £163,000 on an indemnity basis. The judge said the size of the costs was "significant" and while they may be justified, "are somewhat larger than I would have expected for what is essentially a short point under the Companies Act."

The judge ordered Hardy to pay 60% of the costs upfront, with the remainder going for detailed assessment.

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Comments

Anonymous 09 April 21 09:36

I think this will be appealed - courts won't want this message going out to the public.

Spotty Lizard 09 April 21 09:55

anonymous 09:36: and what would the basis of that appeal be, exactly? This is a costs decision by the lower court, based on the LIP's conduct; no appeal court is likely to touch it with yours. 

 

And frankly it's a very good message to be sending to the public. The courts are a last resort, and not a place to act like a clown, and you should take legal advice before taking such a potentially life-changing decision. 

Anonymous 09 April 21 10:04

Spotty Lizard - there are several grounds for appeal - the fact he was successful in much of the case, the fact that the case under that provision of the Companies Act was supposed to be decided on the papers, the decision to award indemnity costs because he was thought to be 'condescending', the fact that most of the 'costs' aren't recoverable, the list goes on.

He was a Defendant, so it wasn't 'his choice'.

The message this sends out to the publis is that anyone can be taken to court and made liable for costs the Claimant has chosen to incur. Doubt the courts will let this stand.

Scep Tick 09 April 21 10:15

The Judge Paul Matthews ruled that Hardy had a "rather condescending manner" and "unnecessary" behaviour when dealing with the other side, which resulted in "more time and resources" being spent on the "problems of tone and language than in addressing the real issues in the case."

Are we sure he's not a barrister?

Anonymous 09 April 21 10:18

Scep Tick - yes, I was thinking that. If a condescending tone justified awards of indemnity costs there would be a lot of impecunious lawyers, not to mention judges.

Anonymous 09 April 21 10:22

Too bloody right!

LIP's should be banned outright, or forced to pay £100k on deposit before serving anything. They're a complete waste of time and energy. Leave lawyering to the people actually qualified to do it.

 

Anything else is just as mental as authorising 'Heart Surgeons In Person' to tinker with someone's aorta just because they're sure that they're the smartest and mouthiest person in the room.

Anonymous 09 April 21 10:27

Actually all of the costs are going to detailed assesment, not just 40%, so the LiP might get a refund on interim costs. Problem is whether any costs judge will have the guts to take an axe to the bill after a High Court judge has awarded 60% interim payment and reduce it to what it should be (realistically, given the case, to probably less than £1k).

Spotty Lizard 09 April 21 10:52

@anonymous 10:04: I went and had a quick look at the main and consequentials judgments before responding to your case. There are a couple of points that need to be made in response to your post.

First off, your reference to the fact that he was the defendant is utterly, utterly irrelevant. If a putative claimant asks you for something reasonable and you unreasonably refuse to provide it, it is your fault if that claimant then sues you, and under the general principle you bear the liability for costs if and when you lose the case. If that were not so, then no claimant in English proceedings would ever recover their costs.

Second, being the defendant in no way grants you licence to conduct your case unreasonably and in a manner that would, if you were claimant, result in a costs sanction. 

In this case, the judge at first instance found that the defendant had been an unsatisfactory and "tricky" witness, had behaved unreasonably in his pre-action dealings with the claimant, had conducted his case in a manner that had unnecessarily increased costs and complicated the evidence, had not complied with directions, had made multiple serious allegations of wrongdoing against the claimant and its directors that he was subsequently unable to substantiate with evidence, had conducted correspondence in an offensive (and wholly excessive) manner and had done all this despite being a serial litigant and being "clearly very experienced in litigation". You also refer to the fact that this case went to trial instead of being decided on paper. That's not actually right - the case should have been determined summarily, but that does not mean "on paper" - it just means without cross-examination of witnesses. As the judgment and the above article makes clear, the defendant was desperate for his day in court and for trial to be live-streamed, so I am not sure where this point takes your argument.

You say that the defendant was successful on much of the case. In point of fact, he entirely failed on the main point of the case, which was whether his Companies Act request to the claimant had been valid, and he failed on the question of whether his request, had it been validly formulated, was made for a proper purpose. The judge also found that he was a "serial... vexatious, litigant" and that there was a risk that the defendant would not have treated the material he sought from the claimant in accordance with the Companies Act and would instead have misused it (although that was not ultimately a deciding factor). There is, in short, no basis for your assertion that he succeeded "in much of the case".

Again, the court made clear, on the basis of previous case law (such as Barton v Wright Hassall) that there is no basis for holding litigants to different standards in relation to their attitudes towards compliance with the CPR simply because one of them happens to be self-represented. 

On the basis of the above, the judge found that indemnity costs were merited. From that decision, and the awarding of the standard 60% of costs on account prior to assessment, flows the order that he pay the £100,000 figure. I repeat that there is nothing in that that any appeal court will be likely to be willing to look at. He is going to have to convince that appeal court to give him permission first, as he has been refused permission by the first-instance judge.

In short, you're wrong.

Kiss me, Hardy 09 April 21 11:09

This isn't any old litigant in person, it's Mark "no novice in the courtroom" Hardy.  You can see what he's been up to in this jurisdiction just by checking BAILII and he has plenty of experience outside it (he even made it to the Privy Council once).

I have litigated against this man. If my experience is anything to go by, the level of the applicant's costs will be a direct consequence of how he has conducted himself. 

Anonymous 09 April 21 11:13

@10.22 - the matter at hand was hardly equivalent to heart surgery. A lot of lawyers don't like LiPs because they do a good job for much less money and cut through a lot of the bull surrounding the courts. As a result they often don't receive a fair trial.

LiPs should either be allowed and treated fairly (in my view this is the correct approach) or as you suggest banned (in my view the wrong approach). They shouldnt be intimidated or fine out of existence though. In reality they're here to stay.

Spotty Lizard 09 April 21 11:34

Anonymous at 11:13. Your position seems to be that someone should be allowed to side-step the costs consequences of their actions simply by choosing not to be represented by lawyers. I am not sure how it is you come to regard my position (namely that litigants should be treated equally in court as regards costs consequences of their actions, irrespective of their decisions around legal representation) as being 'intimidating' or as leading to LIPs being 'fined out of existence'. On any view, however, and assuming you are in fact a lawyer, it may be better in your specific instance if a litigant contemplating instructing you opted for self-representation instead.

Anonymous 09 April 21 11:35

@11:13 - yes, we're all terrified of those LIP's who "do a good job", "cut through a lot of the bull surrounding the courts" and as a result "don't receive a fair trial".

Gosh, if only I could manage to get my client that kind of amazing outcome by doing a similarly good job and 'cutting through the bull' a bit. Surely they would all be delighted.

Ah well, guess I'll just have to stick with getting them a fair hearing in which they don't attract punitive costs sanctions. Damn those LIP's for showing me up in this way!

Anonymous 09 April 21 11:36

@11.09 - each case turns on the fact, so its important not to pre-judge the parties. This was a very, very simple administrative matter and most of the correspondence wasn't relevant to the matter at hand so are not recoverable.

Anonymous 09 April 21 11:41

@11.35 - sadly its what a lot of duff lawyers think about LiPs. Sadly for them they're not going anywhere, no matter how much and how often they're fined.

Anonymous 09 April 21 11:46

Spotty Lizard - but the cost consequences of the Defendant's actions in this case aren't anywhere near £100k, more like £1k max, although no order as to costs would be fairest.

Your position isn't that LiPs should be treated fairly, its that they shoyld be treated unfairly and fined by unfair costs orders. If a LiP wins, do you think they should be able to recover the same as the other side, or should they continue to be limited by LiP hourly rates.

I'd happily advise someone to self-represent if I could be sure they get a fair hearing. On any case, you sound like you don't do LiPs because they'd do a better job than you for half of the price.

Anonymous 09 April 21 11:48

I think there's a lot more than that the judge didn't know Tobes. Such a s117 CA applications can't have a trial.

Spotty Lizard 09 April 21 12:00

@anonymous 11:46: I would love to know where you're plucking your £1,000 figure from. The court filing fee alone would have been £528, so your position appears to be that the claimant was only entitled to recover around an hour's worth of fees.

It's pretty clear you don't have much of a clue about the indemnity principle or litigation in general. 

Spam Hamwich 09 April 21 12:10

I suspect that the Anonymous comment at 09:36 and indeed every further comment advancing the wild claim that permission to appeal the ruling will be allowed has in fact been posted by the same mad and desperate defendant who was recently slapped with a £100,000 costs order. The comments section of the Law Gazette article on the same subject was closed following the same shameful run of batshit crazy comments.

Anonymous 09 April 21 12:17

The Defendant was all over the Gazette's comments section demonstrating exactly the qualities the judge described and making it pretty clear why he got himself into the position he got himself into.  It caused the Gazette to close the comments section.

Just saying!

Anonymous 09 April 21 12:25

Spotty Lizard @ 10.52:

The fact that he was the Defendant is wholly relevant since you said at 9.55 that he took a 'life changing decision' He didn't, he was a Defendant not a Claimant.

The judge's findings were plainly wrong and appear to have been influenced by the fact that the Defendant was a LiP. Any allegations made by the Defendant were (as even the judge said) irrelevant and didn't even need to be addressed as part of the case. As you say, this type of case doesn't go to a trial and involve cross-examination of witnesses, etc. So any costs incurred as a result of this mistake of the court's aren't payable by the Defendant, they're a matter for the Claimant and the court.

The Defendant wasn't 'desperate for a day in court' - they were a Defendant. It was the Claimant who initiated proceedings. So the point is the Claimant utilised the court process and the court messed up and scheduled a trial when it shouldn't have. Hardly the Defendant's fault or the actions of a 'vexatious litigant'. The Defendant is correct that if the case was live-streamed on youtube there would have been considerable interest. The fact the question was raised (and turned down) had no impact on the Claimant's costs.

The Defendant didn't 'fail entirely' on whether the request was valid (in my view if a solicitor made the same request in the same way the court would have found that the request was valid, again D was in my view penalised for being a LiP). He was successful in all but one of his arguments that his request for a proper purpose (furthermore the part he failed on is certainly open to question) and he was successful in defending the claim that he would 'misuse' the information. So there is indeed a basis for saying he had a large degree of success.

Barton v Wright Hassall (probably the worst decision of the Supreme Court in recent years) says that LiPs are subject to the same rules as represented parties, but it doesn't mean they should be treated worse, as has happened here. The Defendant didn't break any rules (he wasn't obliged to behave in the same way as a solicitor would as long as he didn't break any rules, he's not regulated), so an indemnity order wasn't justified.

For these reasons, there are many reasons to appeal this decision. Imposing a six-figure sum on unrepresented Defendants will severely weaken public confidence in the court system. Everyone is entitled to an appeal and failure to provide one would engage the Defendant's human rights, which could be embarassing for not only the courts, but the whole country. Even if the decision isn't appealed, there are many arguments where costs could be slashed on a fair assessment.

In short, I regard this decision as unlikely to stand.

Anonymous 09 April 21 12:30

Spotty Lizard @12.00 - certainly not half an hour of £500 hourly fees - more like £500 fixed fee to deal with the application. £1,000 for this isn't plucked. £100,000 on the other hand...

Spotty Lizard @ 12.03 - really - I must have missed the bit where he said the court made a mistake so therefore there could be no costs awarded for a trial which shouldn't have taken place.

Anonymous 09 April 21 12:37

Spam Handwich at 12.10 and 12.17 - always a mistake to assume (or claim to assume) that the person your disagreeing with must be the Defendant, makes it look as if you have no argument to the points being made and have to clutch at straws. Most people will feel that LiPs should be hit with £100k costs orders. There are certainly aspects of the judgement which are open to questions, and it is my view that this decision will either not be enforced or appealed. We will see. Note you say its a wild claim that the appeal will be allowed but don't say why.

Anti LiP comments views being expressed caused the Gazette comments section to be closed as they gave a bad impression.

Anonymous 09 April 21 12:42

A lot of these type of problems would be resolved if represented parties facing LiPs were limited to recovering costs at the same hourly rates of LiPs can recover at. It is highly likely that something like this will happen over time.

Spotty Lizard 09 April 21 12:54

Okay, Mark. There's so much that is wrong in your last two posts that it would take me a big chunk of the afternoon to put you straight, but I shan't waste my time.

Good luck avoiding having to pay the remaining £63,000 (plus the costs of the SCCO proceedings). Based on your reasoning to date, I don't rate your chances. Perhaps you should speak to a lawyer?

Anonymous 09 April 21 13:05

Spotty Lizard @12.54 - that's ok HHJ Matthews. Yes, please don't waste any more time trying to explain how Defendants get to choose whether to be claimed against and why LiPs should be liable for trials that aren't allowed under statute.

There isn't a remaing £63k, the whole lot is subject to assessment so the Defendant may get a refund. That's assuming he doesn't just appeal the decision, if he does and he's successful on that there won't be an SCCO assessment.

Spotty Lizard 09 April 21 13:28

Sorry, Mark, but that retort doesn't really work; there are any number of competent litigators who would take the position that I have set out above. 

There is only one person on God's green earth who would adopt yours. 

Good luck with that appeal as of right against the outcome of the trial prohibited by statute. 

Anonymous 09 April 21 13:39

Spotty Lizard @13.28 - ok HHJ Matthews, whatever, not much sign of competent litigators queuing up to argue that Defendants get to choose whether to be claimed against and that LiPs should be liable for trials that aren't allowed under statute from what I can see.

'Only one person on God's green earth' believes in the right to appeal - thanks for that pearl of wisdom.

Thanks for your good luck wishes, sure you mean it.

 

Spotty Lizard 09 April 21 14:41

If done properly and reasonably, almost nothing.

 

If done unreasonably and aggressively by a clown, somewhere between £100,000 and £163,000.

Spam Hamwich 09 April 21 14:44

Anonymous (who-is-likely-called-Mark) at 12:37 – you will note that my assumed name is Spam Hamwich, not Handwich (which makes no sense) and you will also note that I did not post the comment at 12:17 which was made by one of your Anonymous namesakes. Applying your own logic to your mistaken assumption, are we to infer that you are yourself clutching at straws? I do not agree with almost everything you say. But in the spirit of cooperation I will list the non-exclusive reasons why I did not submit any arguments in my last post: my main object was to note for the record my suspicion that you are Mark Hardy; I was not minded to argument; and the other commentators were (and are) doing such an admirable job (particularly Spotty Lizard). My personal view, if you're interested, regarding your dismal shot at appeal, and without prejudice to my right to submit commentary without advancing any argument, is that you will not be granted permission to appeal the costs order (let alone reach a substantive hearing) for four reasons: the judge made no errors in law or fact; he was acting within the range of his discretion when he gave the costs order; and the order appears to be just. It is well noted that you do not deny you are the Defendant. Out of interest, do you have any evidence as to why the Gazette closed its comments section for the reasons you state? Or was that just another wild claim?

Anonymous 09 April 21 15:40

Spotty Lizard 14:41 - right, so the cost was next to nothing. As no essential extra work was generated by the Defendant in this case, the recoverable costs are, as you say next to nothing.

Anonymous 09 April 21 15:48

The Claimant incurred no loss in cists in this case, so any award would breach the indemnity principle.

Anonymous 09 April 21 15:58

He has no idea why comments were closed.  Yet he appears here again and again and again, just as he did there, making the same wild points, wholly unstanchioned by any degree of procedural awareness or, indeed, reality.  This is where farce and tragedy collide, and it is not pretty.  Now he says that the order either will not stand, or will not be enforced.  There is no procedural route to appeal, as has been pointed out to him several times here and elsewhere, including by the trial judge.  He has put the claimant company and charity to enormous expense, and now they have a costs order in their favour.  The directors/trustees have a positive duty to enforce that order.  Even if in some personal capacity they wished to take pity on him, their hands are tied.  To imagine otherwise is like a man spending years gathering together sticks of dynamite, building them into a huge pile, sitting on top of the pile, lighting one of the fuses and then saying 'I have every confidence it won't go off'.  Not only will it go off, but it has already gone off.  The atomised remains can do nothing now except sell their house.

Spotty Lizard 09 April 21 15:59

You're just reading selectively, matey. You made an inappropriate and incorrectly-formulated s.116 request, and the company had to apply to court under s.117 - it had no other option. That being the case, the costs that flowed from that, once the court found against you, were your responsibility.

Spotty Lizard 09 April 21 16:07

Next time, read s.117(3)(b) and think about what might happen to you, before you make any more stupid s.116 requests. I'm going to bet that the company wrote to you before it launched its proceedings, and asked you to withdraw your request (failing which it would apply to court and seek its costs under s.117(3)(b)), and you refused. 

Anonymous 09 April 21 16:14

Spam Handwich 14:44 (also posting at 12.10 and yes, you did post at 12:17) - as mentioned, its always a mistake to assume (or claim to assume) that the person your disagreeing with must be the Defendant, makes it look as if you have no argument to the points being made and have to clutch at straws. Continuing to assume (or claim to assume) when you've been corrected only makes it worse. Spotty Lizard has lost in every comment they've made, so admiration for them is misplaced. If your logic for believing that something must be true is because it hasn't been denied, then your argument weakens even more.

The judge and the courts made several errors in law and fact, perhaps the fact that trials can't take place for s117 claims being the biggest. It could be argued that the judge acted outside the range of his discretion (over £100k of costs awarded for something which should be around £1k), and the order appears unjust as it appears the Defendant suffered for being a LiP. I don't believe this decision will stand - it either won't be enforced or will be appealed. Otherwise the courts would suffer too much damage in the eyes of the public. Not sure which part of this you don't understand.

The comment section on the Gazette were closed immediately following several anti LiP comments which gave a bad impression. I can't see any other conceivable reason why the comments were closed.

Anonymous 09 April 21 16:18

Spotty Lizard 15:59 - minimal costs flowed from the s117 application, which as you say costs next to nothing. The rest of the costs arose from the courts' mistakes in arranging a trial for something which isn't triable and in poorly case managing the process.

Anonymous 09 April 21 16:22

"The Claimant incurred no loss in cists in this case, so any award would breach the indemnity principle"

Nonsense.  The claimant has incurred costs, there is no breach of the indemnity principle, and you are ordered to pay those costs.  Your indemnity principle argument quite rightly failed in front of the judge because it was quite simply wrong.  I'm sure you remember that.

Anonymous 09 April 21 16:32

@15:58 - I can't see any other reason why the comments would have been closed. Lawyers expressing anti LiP views ultimately help not hinder the LiP.

The Claimant hasn't incurred any expense as costs were covered by non-refundable donations (read the judgement for more details).

Everyone has the right to appeal and the trial judge hasn't said at all that there is no route to appeal.

Sorry to dampen your enthusiasm about an elderly LiP having to 'sell their house' but that simply isn't going to happen. This will either be appealed or the Claimant won't enforce (they have discretion to, not a duty to).

Anonymous 09 April 21 16:41

Is anyone actually able to say how much a s117 application under the CA 2006 normally costs?

Anonymous 09 April 21 16:51

Why didn't they just tell him to resubmit the request if they felt it was invalid? Surely that would have saved a lot of time and money.

Spam Hamwich 09 April 21 17:05

Mark, you are a complete loon. Also, I recommend paying for legal advice rather than seeking it on ROF.

Spam Hamwich 09 April 21 17:05

Mark, you are a complete loon. Also, I recommend paying for legal advice rather than seeking it on ROF.

Anonymous 09 April 21 17:06

If only Mark Hardy could come and see this thread, eh?

Just look at all of the marvellous free legal advice he'd be getting from it - and all in support of his position! £100k in costs against him, but it turns out that he has nothing to worry about! What are the chances?!

 

... and to think, he's somewhere else being blissfully unaware that all of this is being said about him. What a shame.

Anonymous 09 April 21 17:09

Spotty Lizard 16:07 - righto, HHJ Matthews, where in s117(3)b does it mentions 'costs' of £160k? Is it next to the bit saying there should be a full trial for a s117 application?Looks like another ground for appeal. And if the Claimant didn't write as you're suggesting are you saying that's (another) ground for appeal?

Anonymous 09 April 21 17:21

Spam Handwich 12:10, 12:17, 14:44, 17:05 (comment was so good you posted it twice), 17:06 - continuing to assume (or claim to assume) anyone disagreeing with you must be the Defendant when you've been corrected only makes your argument worse.

Nobody is giving or looking for legal advice here (and with respect, if they were, they would be ill-advised to take it from you, as you think over £100k should be recoverable for something usually costing a fraction of that because you don't like LiPs).

What is being said is that this was a bad and unfair decision (which it was) and that it won't stand (which it won't). You have contributed precisely nothing which says otherwise.

Anonymous 09 April 21 17:24

Spotty Lizard 16:22 - you must remember, HHJ Matthews, that the valid point was made at trial that the Claimant's costs (including the non-recoverable element above £1k) were covered by non-refundable donations. If the Defendant was ordered to pay any costs, this would be a double-win for the Claimant, breaching the indemnity principle.

Anonymous 09 April 21 17:44

I'd have made no order for costs, but would assess this at between £500 and £1,000 if there was an order as to costs.

Anonymous 09 April 21 17:56

Quite clear a lot of the people posting comments here are not litigation lawyers.

They dream of earning charging £100k in a case against a LiP and are trying to play down the chances of costs being reduced in this case because they think if they are then their own chances of doing so will disappear.

Mark Hardly-all-there 09 April 21 18:32

I love the idea that Mark thinks that an entity allocating or taking in money and paying its lawyers before it seeks a costs order would constitute a double recovery. Why, I have even heard such corporate wrongdoers as Tesco fund their litigation out of non-refundable sales! For shame...

Anonymous 09 April 21 19:26

If the costs are already covered via non-refundable donations to cover costs then asking someone else to cover them would indeed be double recovery 18:34. This breaches something called the indemnity principle.

Tesco's sales aren't a non-refundable donation to cover legal costs.

Spam Hamwich 09 April 21 19:42

Hi Mark! Sorry what was that point you had about me assuming you were the Defendant? That it made my argument worse? It's not very clear to me. If you could reply and state it once more that would be very helpful. 

Anonymous 09 April 21 20:37

Spam Handwich 12:10, 12:17, 14:44, 17:05 (comment was so good you posted it twice), 17:06, 19.42, happy to:

Continuing to assume (or claim to assume) anyone disagreeing with you must be the Defendant when you've been corrected only makes your argument worse.

That'll be £160k please.

Anonymous 09 April 21 20:52

This is what happens when one side is unrepresented and the case management isn't done properly.

Anonymous 09 April 21 23:05

Yes, its embarrassing, 19.56. Lawyers not knowing the law and not realising how their comments help the LiPs they hate so much by providing evidence of how the courts are biased against unrepresented parties.

Anonymous 09 April 21 23:13

@22.52 - its good to see this discussed and some common misconceptions about LiPs being put to bed.

Spam Hamwich 10 April 21 02:06

The sad fact is you will have to sell you house, Mark. So there's that. 

Anonymous 10 April 21 07:41

It'll be interesting to see what HMCTS say about this and how they propose to maintain public confidence in the court system in relation to such things as requesting details of company member registers.

Anonymous 10 April 21 10:01

Spam Handwich @2:06 - sorry to disappoint you, but it is highly unlikely the Defendant will have to sell their house. The decision is won't stand. The court will not and cannot be seen to be ruining unrepresented members of the public for the gratification of people who sit up all night drooling at the prospect of people losing their house when the matter at hand is about as complicated as a parking ticket. Your comments are making it that bit more sure that the decision won't stand and are helping evey LiP, so please do keep them coming.

Oh, and continuing to assume (or claim to assume) anyone disagreeing with you must be the Defendant when you've been corrected only makes your argument worse.

Anonymous 10 April 21 10:27

The most likely outcome is the Defendant hires a costs lawyer on a CFA and the CoA overturns the indemnity order, either for no order as to costs or for an order for costs on the standard basis, which will likely be a four figure sum. Then there'll be a drop hands agreement.

Anonymous 10 April 21 11:12

Anonymous @10:27 Er, "hires a costs lawyer"? Well that's this particular LiP's problem right there, innit. Not hiring lawyers, mainly because they're going to tell him he hasn't got a case.

Anonymous 10 April 21 11:28

Mark, you keep saying that the decision won't stand, but you're steadfastly refusing to recognise that there are no valid grounds of appeal.  What you think constitutes a ground of appeal and what actually is a ground of appeal are two completely different things.  

You've dug yourself into a deep enough hole by assuming that you must be right and everybody else must be wrong.  At some point you're going to have to face up to the fact that you fought and you lost, and now you must pay.  The decision stands.  There is no prospect of appeal.  You are where you are, no matter how tiresomely repetitive your insistence on burying your head in the sand and arguing, quite irrationally, that black is white.

You've made your cake and now you can lie in it.

Anonymous 10 April 21 11:38

10.27, that's pie in the sky.  Nobody would touch this on a CFA.  The CoA won't ever be troubled by Mr Hardy or his delusions as there is quite simply no route to the CoA.  The claimants, now out of pocket, will enforce their entitlement to the costs ordered in their favour.  To imagine otherwise is pure fantasy.

Anonymous 10 April 21 12:49

Clearly the Defendant didn't cause the costs to increase in this case in any way.

Anonymous 10 April 21 14:03

The chances of the CoA overturning the costs order are next to zero.  There are hardly any reported cases where that has happened.

Spam Hamwich 10 April 21 14:42

@10:01, your continued awkward silence regarding your identity is telling, less because we know who you are, more a fascinating view of your self delusion. 

Spam Hamwich 10 April 21 15:29

@10:27, in all seriousness the Defendant would do well to seek legal advice. I'd be surprised if he were able to agree a CFA though. I had thought CFA were more aimed at claimants. 

Anonymous 10 April 21 18:03

11.12 - his problem wasn't not having a lawyer, his problem was the court discriminating against him for not using a lawyer. What is likely to happen is that a lawyer will take on his case and the indemnity costs decision will be overturned. That's what the court wants.

Anonymous 10 April 21 18:50

HHJ Matthews @ 11.28  - everyone has the right to an appeal. Merely repeating again and again that there are no grounds for appeal doesn't change this, especially when the reasons that the decision was wrong have been laid out.

It isn't that everyone else is wrong, most people agree that the the decision was wrong and that the courts can't treat LiPs in this way. The Defendant didn't lose on most of the points and the actual costs of the case are around £500-£1k, anything else is between the Claimant and the courts.

You may not want an appeal, but that isn't the same as saying there is no prospect of an appeal. This decision won't stand - the CoA simply won't allow it to.

"You've made your cake and now you can lie in it" - I think you're mangling your metaphors.

Anonymous 10 April 21 18:55

11.38 - most lawyers won't agree with the decision for the reasons outlined, and there is likely to be a queue offering their services via a CFA or pro-bono, especially if this progresses beyond the CoA to the Supreme Court or the ECHR. There clearly is a route to the CoA - you may need to read how appeals work. As mentioned, the most likely outcome is the Defendant gets legal representation via a CFA, the CoA overturns the indemnity costs order, costs are assessed on the standard basis at a four figure sum (if it gets that far), and there is a drop hands agreement. The Claimant won't enforce as they have already received enough in non-refundable donations to cover costs (you are wrong when you say they're out of pocket).

That's what is most likely to happen in the real world and you are unable to say anything which shows otherwise.

Anonymous 10 April 21 18:57

"You should get involved on the thread in the discussion too"

...and you should read it

Anonymous 10 April 21 19:03

14:03 - there are hardly any cases of Defendant LiPs being charged over £100k for a case which would normally cost a few hundred.

Do you understand the difference between the CoA overturning a costs order and the CoA determining that the correct basis for assessment was the standard basis and not the indemnity basis? There are cases where the latter has happened. Suggest you read up on this.

Anonymous 10 April 21 20:49

Spam Handwich @ 14:42 - you're going to struggle to be taken seriously as long as you keep insisting that everyone who disagrees with you must be the Defendant.

Anonymous 10 April 21 20:57

"that's the least likely outcome" - if saying that without saying why and making faces is the best you can do, we won't be placing much wait on your opinions.

Anonymous 10 April 21 21:05

LiPs are not subject to special treatment by the courts. That includes not being subject to worse treatment. In this case it could certainly be argued that the court discriminated against the Defendant because he was a LiP, and that if he wasn't, the costs award (if any) would have been much less.

Anonymous 10 April 21 21:27

The Claimant in this case is the author of their own misfortune. This was an extremely simple administrative matter. The Defendant can hardly be blamed for the fact that the Claimant managed to run up costs of £160k. Their costs, they pay.

Anonymous 10 April 21 21:37

Mark: first, the route of appeal isn’t to the CoA. They’re not going to look at it, and appeal courts very rarely interfere with the wide discretion afforded to first instance judges in costs. 
 

Second, having your costs assessed in the standard basis won’t mean they are reduced to a few thousand.

Third, unsuccessful litigants who are represented regularly go down for significant sums on costs.  There’s nothing here to suggest you were “discriminated against”.  It’s just that the usual rules were applied.

Finally, your trial judge is hardly likely to be commenting on a RoF forum!

Paddy Power 10 April 21 21:44

I would suggest you put your money where your mouth is, but you’re unlikely to have much now.

Anonymous 10 April 21 22:05

15.29 - CFAs are mostly aimed at Claimants, but they can be used for Defendants too, particularly where the Defendant becomes an Appellant. This case would have limited downside for a lawyer taking it on a CFA - a lot of lawyers are ashamed at the initial verdict and would regard it as a worthwhile cause, and the costs of the appeal wouldn't be much - it would be a pretty straightforward argument that awarding indemnity costs mainly because the Defendant was a LiP was unjustified.

Remember this judgement was about punishing the Defendant for not being represented - if he gets representation by a good lawyer there's every chance the indemnity costs decision would be replaced by assessment on the standard basis. Proportionality then kicks in and recoverable costs would reduce to the extent that its hardly worthwhile for the Claimant to enforce (remember the root cause of this was a s116 CA 2006 request). That's how this is likely to play out.

Anonymous 11 April 21 07:50

The judge himself said that most of the Defendant's correspondence was irrelevant. That being the case it can't have been reasonable or necessary to respond to it. Costs unreasonably incurred aren't recoverable, even on an indemnity basis. That leaves the costs relevant to the case, which amount to only a few hundred. They are all that are recoverable.

Anonymousimus 11 April 21 11:04

@ 7:50 - that’s not how that works, at all.  It’s entirely reasonable for the Claimant’s solicitor to read all of the correspondence sent by the Defendant. In fact, the Claimant’s solicitor would be negligent not to read it.

This is for the simple reason that the Claimant’s solicitor has to read it to work out if it’s relevant or not, and to check if the Defendant has raised anything with merit to which the Claimant would have to respond.

This is not the sort of unnecessary faffing which costs rules are there to prevent.  This work was made necessary by the Defendant’s choice to send vast quantities of material. It may in retrospect turn out to have been a massive waste of time, but that doesn’t mean it wasn’t reasonably incurred at the time. A party who wastes the other side’s time should expect to pay for it.

Anonymous 11 April 21 11:25

Paddy Power - there are things called CFAs which don't involve payment of fees, so the Defendant wouldn't have to put up anything.

An appeal would stay the interim payment, so the Defendant would have no more nor no less money than he had before.

Anonymous 11 April 21 11:27

It doesn't appear that the Defendant was made aware at any time that his costs were likely to be anywhere near £100k, nor could he have been expected to know.

Anonymous 11 April 21 12:15

A lot of lawyers, and many judges, just don't like LiPs, and don't think the courts are for the likes of them. This looks to be what has happened here. The court has taken the Defendant's lack of deference personally, but LiPs are under no obligation to defer to the court.

Anonymous 11 April 21 13:01

@20:57 you don't have to wait to attach weight to that opinion.

CFA funding is largely dead for most areas of law after the SF uplifts changed in 2013. Defendant sols won't be interested in touching this unless its privately funded.

Anonymous 11 April 21 15:15

@11.04 - its very clear after a quick glance at correspondence whether its relevant or not (we're talking a couple of minutes). By your logic, if the Defendant sent the Claimant's solicitors a copy of War and Peace then they would be entitled to read it and charge for doing so.

It is hardly reasonable to expect the Defendant to have to pay for the Claimant's solicitors to spend a lot of time reading correspondence which the judge himself said was irrelevant, much less to have to pay for the time taken to reply to it. Clearly it is not negligent to not read or reply to irrelevant correspondence, indeed it would be irrelevant to do so. The costs of reading and responding to irrelevant correspondence are between the Claimant and their solicitors - to ask the Defendant to pay for it would be unreasonable. That's how litigation works.

The Defendant hasnt wasted any of the Claimant or their representatives' time - if they have chosen to spend time on something then that is nothing whatsoever to do with the Defendant.

Anonymous 11 April 21 16:31

Thanks for the latest nugget of wisdom 13.01.

There are still plenty of firms offering CFAs, and there are a number of reasons why this would be attractive to many lawyers - exposure at the CoA and a clear injustice to be resolved being a couple.

Anonymous 11 April 21 18:17

Anonymous @15.15: that’s not the logic at all.  If you correspond about the case, and send lengthy correspondence, that has to be read, understood and instructions taken on it.  It’s not possible to tell from a glance whether something is relevant or not.  And if it had been that obvious, why did you send the correspondence at all?

Anonymous 11 April 21 18:25

Why did the court have a trial on a s117 2006 CA request? It isnt for the Defendant to pay for the court's blunder.

As 11.04 said "a party who wastes the other side’s time should expect to pay for it". Even (especially) if that party is the court.

Anonymous 11 April 21 18:57

18.17 - the correspondence wasn't about the case, as the judge said it was irrelevant. If it is irrelevant it is not reasonable to recover costs from the Defendant for it.It is definitely possible to tell at the quickest of glances whether or not correspondence is relevant or not, people do it all the time in every walk of life. If it was irrelevant, and the judge said it was, there is nothing to be read and understood, and no instructions to be taken. That is how litigation works, and that is why the decision won't stand.

Why the Defendant sent the correspondence really doesn't matter.

Anonymous 11 April 21 19:27

The way to approach this is to look at how much time would have been spent on reading and correspondence if there had been no chance of recovering costs for it, especially where the opponent is a LiP. This (far lesser) amount is the amount to be assessed.

Anonymous 11 April 21 22:06

16:31 - its all about billing. Firms don't care about CoA decisions or justice (🤣😂). It'd about landing sweet billable hours. Privately funded hourly rate, preferably billed each month or quarter. Your naivety about justice reads like a 17 years old UCAS application for an LLB.

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