We might find out how close I am shortly.
The Post Office has admitted spending £23m on legal fees to end March 2019 (including paying out £6m worth of costs to the claimants)….
Owain Draper for the Post Office.
J notes costs of first trial was £3.6m and Horizon trial was £3.7.
Wants to know why predictions for cost of third trial in March 2020 are “well north” of £4m.
(ie shorter and less complicated than the the other two trials)
J it’s either going to be assumed facts or some relatively narrow dispute of facts.
J I am struggling to understand why any costs managment order for this trial should be so high.
J I think this trial is going to be narrower in scope than either of the other two.
OD yes, the trial itself is narrower in scope...
J so if we take out £1.2m for ADR costs, we have £3.04m for the trial.
OD yes my lord.
J i understand. Other ways of comparing like with like - £.5m in first trial for compiling witness statements, yet you’re not getting witness statements in this trial...
OD notes that the cost estimates for previous trials were lower than they turned out to be.
J accepts. Asks HW for claimants to carry on.
HW indeed my lord.
The parties agreed to adopt the cost management regime, there therefore must be some purpose and they must want the involvement of the court in their future costs or they never would have agreed to adopt the cost management regime.
1st trial 3.6m
2nd trial 3.75m
it seems to me the global figure for the 3rd trial is not reasonable or proportionate if it is in excess of the other two figures. That is the approach I am adopting.
J so are you happy for a CMO on this basis?
Both claimants and defendants budgets for the trial also include costs for ADR, mediation and settlement discussions.
But lots of water will pass under the bridge before it even gets there.
Much of it in darkness….
Neither party seems to have a problem with that.
J says he is persuaded to make a single CMO for £2.814m for the claimants costs for third trial AND ADR/mediation/settlement discussions.
OD there are two distinct issues - does your L want to make any adverse comment and what figure you ought to approve for estimated cost of settlement. HW wants crit of incurred costs for ADR/settlement and/or budgeted costs.
J it’s part of the court’s duties in this process
OD looks at rules
OD it’s 3.15.2
OD starts reading from the White Book 3.15.2 to back up his argument
J suggests he looks at 3.15.3
[there is a little battle here. Court has a duty to try to keep costs down. Legal teams want to spend as much as they can, to, er, ensure the job is done...
J Are you saying the court does not have the power to do that?
OD yes my lord
J I’m not sure that’s right. give me a moment….
HW I’m with my learned friend on this.
J I have the ability to make a CMO in respect of certain heads of costs in the budget whether they’re agreed or not. Just because the parties might be agreed, they’re not entitled to a CMO in respect...
HW but respectfully you can’t revise figures.
HW but a pitfall of not making a CMO allows a party to sidestep costs management.
[whilst this is fun for me, this probably is not that much fun for you, so I will just try to pick out some headline numbers as we go on…]
It is inherently a document and fact-intensive process.
OD but complaining about having two sets of solicitors on principle is wrong
J I’m not sure it is.
[this is about bringing the PO bringing HSF on board]
[the argument against allowing two firms is that there will be duplication of work and a doubling of costs]
The fact there are two firms doesn’t raise a red flag - there is a given amount of work - it can be done by 20 solicitors in one firm or...
He says by reference to his summary points in his skeleton he can show there is duplication.
J says he’ll hear HW for the claimants after lunch.
It appears Herbert Smith Freehills have been engaged by the Post Office to conduct a review into each of the 555 claimants’ cases.
Claimants say this is the PO’s prerogative, but these should not be recoverable costs as part of the litigation.
HW Is this not simply a business cost, based on the judgement of the first trial.
[ie it’s what they should have been doing...
HW asking judge to disallow HSF costs as recoverable. Or reduce them, partly for the above reason.
HW if there’s anything else I can help…
J there is one thing. What’s the date on Friday?
HW 25th of October my lord
J Thank you very much.
J records a comment on incurred costs - total of time costs appears to be excessive based on fact individual particulars of claim have not been served - now up to the costs judge as how to deal with that comment.
J now onto settlement discussions...
J In terms of the order I’m very much aware of comparing like for like. The PO have added £736K for ADR. The claimants have added £450. The claimants have...
…. hardly incurred any costs already on ADR, whereas the PO has loads, so that the TOTAL incurred and budgeted costs for the PO for ADR is actually £1.239m and the claimants is not much more than £450K.
J now - it would be somewhat artificial to ignore the fact you’re all waiting for a judgment.
I had hoped to get it out in draft before the end of Oct. That’s not going to happen.
J so there’s more disclosure coming...
J when will they get them
OD end of the week and the claimants may want to review them and make submission to the court about them.
HW in fact we very would likely have something to say about them.
OD we will keep you informed
J well you had been but because I was working on the basis that the trial has ended...
HW well we are likely to make a submission based on what we know about this, but until we see it we can’t know for sure.
J well let’s cross that bridge when we come to it, but for those of you who have school...
Which means November is a busy month.
1. we have a total costs for both parties in the whole litigation up to 3 September but before publishing I’m going to check with the transcript to ensure I get it right.
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