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England and Wales High Court (Technology and Construction Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Network Rail Infrastructure Ltd v Handy [2015] EWHC 1460 (TCC) (20 May 2015) URL: http://www.bailii.org/ew/cases/EWHC/TCC/2015/1460.html Cite as: [2015] 4 Costs LR 631, 160 Con LR 116, [2015] EWHC 1460 (TCC) |
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HT-13-23, HT-13-70 and HT-13-130 |
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
NETWORK RAIL INFRASTRUCTURE LIMITED |
Claimant |
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- and - |
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SIMON HANDY |
Defendant |
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NETWORK RAIL INFRASTRUCTURE LIMITED |
Claimant |
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- and - |
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ANDREW JAMES INGRAM |
Defendant |
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NETWORK RAIL INFRASTRUCTURE LIMITED |
Claimant |
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- and - |
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ROB HATFIELD LIMITED |
Defendant |
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NETWORK RAIL INFRASTRUCTURE LIMITED |
Claimant |
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- and - |
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RHIANNON PARRY |
Defendant |
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NETWORK RAIL INFRASTRUCTURE LIMITED |
Claimant |
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- and - |
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DAVID CHARLES GODLEY |
Defendant |
____________________
Andrew Bartlett QC and Isabel Hitching (instructed by DWF) for the Defendants
Hearing dates: 19 May 2015
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Crown Copyright ©
Mr Justice Akenhead:
Indemnity Costs
"2 The authorities are now well established and I do not intend to repeat them. There is largely, if not entirely, an overlap between what both counsel are putting forward as the appropriate basis: cases such as Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hammer Aspden & Johnson (a firm) [2002] EWCA Civ 879, per Waller LJ, in which he said:
"Is there something in the conduct of the action or the circumstances of the case which takes the case out of the norm in a way which justifies an order for indemnity costs?"
3. There are also the well known cases of Kiam v MGN Ltd (No 2) [2002] 2 All ER 242, in particular the judgment of Simon Brown LJ (as he then was), Gloster J (as she then was) in Euroption Strategic Fund Ltd v Skaninaviska Enskilda Banken AB and this Court in Walter Lilly & Co Ltd v Mackay & Anr [2012] EWHC 1972 (TCC), although this was on obviously on different facts and considerations, when the Court referred to yet more authority, in particular Andrew Smith J in Fiona Trust & Holding Corporation v Yuri Privalov [2011] EWCR 664 (Comm) and The Mayor & Burgesses of the London Borough of Southwark v IBM UK Limited [2011] EWHC 653 (TCC). …. I do not intend to repeat the summary of principles and considerations to be taken into account. Obviously, the fact simply that one party loses the case, and maybe loses it on the basis of a firm judgment, does not mean, as such, that the losing party should pay costs on an indemnity basis. There must be some conduct which takes the case out of the normal run of the mill."
"I do not accept that a litigant is able to distance himself from his expert in that way. The expert, whatever his duties, is still the witness of the party calling him. Serious failings by an expert may make it just to order indemnity costs, unless the expert and the party calling him can, for these purposes, be distinguished. In my view they cannot. As between the party calling the expert and the opposing party the risk should rest with the former."
I agree with this view. The judge went on to make an indemnity costs order on a reduced basis, primarily relating to counsel and solicitor costs for 4 specific trial days. From the substantive judgment, the trial had run for some two months.
Interest
"(1) Where a claimant has delayed unreasonably in commencing or prosecuting proceedings, the court may exercise its discretion either to disallow interest for a period or to reduce the rate of interest.
(2) In exercising that discretion the court must take a realistic view of delay. In the case of business disputes, litigation is for all parties an unwelcome distraction from their proper business. It is not reasonable to expect any party to take every litigious step at the first possible moment, or to concentrate on litigation to the exclusion of all else. Delay should only be characterised as unreasonable for present purposes when, after making due allowance for the circumstances, it can be seen that the claimant has neglected or declined to pursue his claim for a significant period.
(3) When determining what disallowance or reduction of interest should be made to mark a period of unreasonable delay, the court should bear in mind that the defendant has had the use of the money during that period of delay."
(a) It simply has not been established that there was anything unreasonable or reprehensible in the conduct of Network Rail in not pursuing its claims between August 2007 and July 2008. There has been no proffered analysis as to what was going on before or during this period
(b) The context, so far as can now be put together, was that there were a number of claims, not limited to the five claims in this case, which Network Rail was hoping to pursue but, given Aviva's reluctance to accept liability at least in relation to revenue losses on any of them, the parties were considering the extent to which test cases might be selected. The reality is that the test cases selected were the Conarken case (where proceedings were issued in July 2008) and the Farrell Transport case (proceedings issued somewhat later), with both cases being transferred to the TCC by early and mid-2009 respectively. It was these two which were selected as the first "test" cases.
(c) Taking a "realistic view" of the relatively small period of delay affecting that these four cases, the context is such that such a delay was in the overall context relatively minimal; the parties were looking for appropriate test cases and in the result opted for the Conarken and Farrell Transport cases; in so doing, they were content to "park" these four potential sets of proceedings and, indeed, ultimately standstill agreements were entered into which stopped the limitation period running whilst those two test cases were tested in the TCC and later the Court of Appeal.
Conclusion