Garden House Software Ltd v Timothy John Marsh & Ors

My substantive judgment dismissed the application of the First, Second, Sixth and Seventh Defendants ("THD") for reverse summary judgment/strike-out of the Claimant’s claims, both on the merits and on the ground that bringing it in the way and at the time it was brought amounted to an abuse of process.

I indicated that I would deal with consequential matters on paper and that, subject to any further submissions, costs should follow the event, and that the Claimant’s costs would be summarily assessed on the standard basis. The parties have filed written submissions on costs. The parties agree that costs should follow the event, and that the Claimant’s costs should be summarily assessed on the standard basis.

The Claimant seeks £87,698.30 (solicitors £37,698.30; counsel £50,000). I have to consider what is reasonable and proportionate. THD contend that the figure is disproportionate and propose a total of £39,460.40, achieved by reducing hourly rates to London 2 Guideline Hourly Rates ("GHR"), removing all the time of the Claimant’s Grade‑A Legal Director, cutting time spent on the statement of costs itself, and halving counsel’s combined brief fees to £25,000.

In determining reasonableness and proportionality I take into account in particular the nature of the application; the issues and their evolution; and the parties’ respective positions as set out in their written costs submissions.

THD characterise the hearing as involving short points of law, not heavy or complex, and justifying only modest costs. I do not accept this. The application was listed for a day with half a day’s judicial pre‑reading. It was a heavy application, albeit my judgment was terse. Moreover, THD shifted the basis of their application following detailed correspondence before the hearing from those acting for the Claimant, advancing new points, so that under time pressure the Claimant had to deal with both the original and the new points, which increased the preparation required.

Moreover, the application threatened the Claimant’s entire case only three months before a trial listed for 12 days, where very substantial security for costs has been provided.

THD point out that their own costs for the application were approximately £44,228, roughly half of the Claimant’s figure, and suggest that this demonstrates disproportionality on the Claimant’s side.

Comparative spend can be a cross‑check; it is not determinative. The question is what was reasonable and proportionate on the part of the Claimant. Given the points already made, it is unsurprising that the Claimant incurred a higher figure than THD.

THD invite me to reduce all rates to the London 2 GHR, contending that the matter was straightforward.

However, I accept that this was a heavy application in a high‑value, specialist commercial/insolvency claim, for which London 1 is not inappropriate. GHR are a starting point, not a cap. THD’s own Grade‑A rate of £595/hr (Birmingham) exceeds National 1 GHR and indeed the London 1 Grade‑A GHR. I consider that, having regard to the application’s complexity and importance and the nature of the underlying issues, London 1‑level rates are justified.

THD ask me to disallow in full the time of the Claimant’s Grade‑A Legal Director (Mr Abdul) on the footing that the work of the other Grade‑A fee earner should have sufficed.

I do not accept that submission. The Claimant’s explanation—that two senior fee earners were appropriate to manage a complex, high‑stakes and protean application, and to ensure efficient division of labour—is persuasive. On the material before me, the deployment of a Partner and a Grade‑A Legal Director was reasonable. The total time taken by them both was also reasonable, and THD identify no duplication.

THD say it was excessive to instruct both leading and junior counsel at a total cost of £50,000 (excluding VAT), and propose that I should cap their combined fees at £25,000.

However, I accept that both KC and junior were reasonably instructed: leading counsel had familiarity with the case and its history and had drafted statements of case; the use of junior counsel to support him should have allowed costs to be kept down. I consider the combined fees to be reasonable and proportionate, given the factors I have already mentioned.

THD contend that the time spent on the statement of costs (namely 1.1 hours (Grade C) plus 4 hours (Senior Costs Lawyer)) is excessive and should be reduced to 1 hour (Grade C) and 1 hour (Costs Lawyer).

I am not persuaded: the figure, totalling £2,549.70, is in context neither unreasonable nor disproportionate.

THD’s proposed global reduction to £39,460.40 is not a fair reflection of what it reasonably cost the Claimant to oppose the application. Nor do the specific challenges warrant the sweeping reductions sought.

However, stepping back and looking at the matter in the round, I consider that the overall figure of £87,698.30 must be reduced, for reasons of proportionality, by 20 per cent, to £70,158.64, which I consider to be reasonable and proportionate.

Accordingly, THD must pay the Claimant’s costs of the application, summarily assessed in the sum of £70,158.64.