You can’t have it both ways: costs and applications 

By Peter Yates

 

Higgins and others v (1) ERC Accountants and Business Advisers Ltd and (2) Granite Tax Ltd [2017] EWHC 2190 (Ch)

In Higgins and others v (1) ERC Accountants and Business Advisers Ltd and (2) Granite Tax Ltd [2017] EWHC 2190 (Ch) His Honour Judge Pelling QC, sitting as a judge of the High Court, dealt with various applications relating to service of claim forms.

Gordon Exall has analysed the substantive decision here and here. In this blog post I want to highlight one brief but important point relating to costs.

In this case the Claimants sought relief in relation to defective service of their claim form. The Second Defendant insisted that the claim form had not been validly served and that the only route available to the Claimants was to begin fresh proceedings, wherein the Second Defendant would have the benefit of a limitation defence. The Second Defendant therefore sought declaratory relief to that effect.

The First Defendant sought to remain neutral. However, they issued their own application (similar in terms to that issued by the Second Defendant) and invited the court to make the same orders as it made in relation to the Second Defendant.  The First Defendant claimed only to have issued its application because the Claimants and the Second Defendant had issued or threatened to issue theirs. His Honour Judge Pelling QC gave this short shrift:

“I have little doubt that D1 wishes thereby to obtain the benefits of any success by D2 but at the same time avoid an adverse costs order if Cs are successful. That is not a permissible way to proceed. In my judgment, it is not open to D1 to remain neutral but at the same time issue an application in the terms referred to above that it requires the court to determine. Either the application must be withdrawn or maintained. In the event, it was maintained. The costs consequences that follow will depend on the outcome of D2’s application.”

This stands to reason. Defendants wishing to obtain a particular outcome may not simply “piggyback” on to another Defendant’s application; they must bear the burden of the application – and the associated costs risks – themselves.

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