Stonegate Farmers Limited & Anor v Thames Valley Eggs (Production) Limited

MR JUSTICE MARCUS SMITH:

1. I have before me an application for costs made by the claimant in these proceedings against the solicitors retained, at the time of the application, by one of the defendants in these proceedings, Mr Kent. I shall refer to the parties as the Applicant and as the Respondent.

2. The nature of the application brought by the Applicant against the Respondent was to seek the order of the court requiring the Respondent to leave the proceedings. and I received extremely detailed submissions, both in writing and orally, from both sides at the hearing at which this application was determined.

3. Determined is not really the right word, however. The application, when I came to consider it, engendered certain thoughts in my mind which I raised with counsel for the Respondent, Mr Flenley KC, as concerns that the court had independent of whatever was said in the written submissions by the parties. There may have been duplication, there may not, I do not want to get into that, but the court of its own motion raised concerns which I invited Mr Flenley to take back to his client with a view to seeing whether matters could be resolved without hearing the application in full. Mr Flenley very helpfully did exactly that and the outcome was, in effect, precisely that which the application sought, namely the withdrawal of the Respondent from what I have termed the London proceedings and a curtailed involvement in what I have termed the Birmingham proceedings.

4. One might say, therefore, that costs ought to follow the event: an application was made; and it was successful. But that does not reflect the reality of the position as it was heard in court that day. I entirely accept that the application was properly brought and I entirely accept that there was a great deal that the Applicant could have said but did not say (because I did not let them) with regard to the outcome of the application.

5. I equally accept that there was a great deal that Mr Flenley could have said in response to the points raised by the court (and to those raised by the Applicant), but which he did not say, partly because he tells me they were new points and he would have needed to take time and seek an adjournment in order to deal with them, and partly because his client, Mr Kent, took a pragmatic course to accede to the court’s points without in any way accepting that those points were right.

6. In these circumstances, we have a determined application, but one determined on the basis of arguments that were never fully formulated or heard. Over and above that, we have a position of considerable factual uncertainty in terms of what difficulties the Respondent would actually have faced had they remained in the action as Mr Kent's solicitors. That is something which I anticipate, and neither party has particularly contradicted me on this, will be elucidated by the trial of this action.

7. It therefore seems to me that the normal course, which would be in effect to hear both sides on the application but purely in order to determine the question of costs, is not the appropriate course to take. It seems to me that it is right instead to reserve the question of costs until the conclusion of the main trial in these proceedings so that an outcome can be determined by this court in the light of all the circumstances of the case. That, of course, is a court’s fundamental obligation: to decide the question of costs in light of all the circumstances.

8. In these circumstances, it is clearly right, therefore, that the bulk of the costs need to be reserved to a later date. The question is whether I can give some kind of token to the Applicant to indicate my approbation of bringing the matter before the court so that the court’s concerns could be ventilated and the matter dealt with. I would very much like to do so, because I do consider, whatever the merits of the court’s points, and Mr Flenley may well have had good arguments against them, the concerns were raised and they were acted upon. I am extraordinarily grateful to the Applicant for making the application and to Mr Kent for listening to what his solicitors were saying and finding a pragmatic outcome.

9. So, I would like to give some kind of token approbation but I do not consider that I properly can. The fact is I cannot make a payment on account of costs, even in a token amount, without actually predetermining the question of costs; and I cannot predetermine the question of costs without hearing the parties in respect of all the relevant circumstances; and I cannot do that today because I do not have all the relevant circumstances before me.

10. With some regret but with complete confidence that it is the right answer, I am going to reserve the question of costs until the conclusion of the London proceedings. I just want to say again, Mr Varma, for the benefit of your clients, I am making absolutely clear that the application was one that was appropriate to bring before the court and I want at least to place on the record as the only token you are going to get, the court’s gratitude that the application was made.