High Court: Effects of lockdown do not remedy default

As England endures a third national lockdown within fewer than 12 months, the recent High Court (Senior Courts Costs Office) decision in Masten v London Britannia Hotel Ltd [2020] EWHC B31 (Costs) serves as a timely reminder that lockdown cannot be invoked as a ‘catch-all’ reason to grant relief from sanction and to set aside a court’s previous decision.

Master Leonard dismissed the Defendant’s application to set aside a default costs certificate, holding that their 4-month delay to filing points of dispute, followed by mismanagement of the file after the deadline had already passed, to be negligent. The Defendant had to bear the consequences of said negligence on these facts, in line with the overriding objective and the balance of fairness.

The High Court Master held that the Denton test applied to the application, and that CPR 3.9 needed to be borne in mind,, namely the need for litigation to be conducted efficiently and the need to enforce compliance with rules, practice directions and court orders. The Defendant’s costs draftsman who was tasked with preparing the points of dispute by 14 February 2020. During this time period the draftsman was busy handling a number of files, with 70% of their firm’s files being paper-based. Prior to their business locking down on 17 March 2020, the firm undertook 5% of work from home; after its shift to home-working, 95% of the firm’s work became remote. The draftsman had prioritised other files, and had additional childcare responsibilities during the national lockdown, which was described as ‘busy and stressful’. The file was not re-allocated efficiently to any colleagues, and eventually points of dispute were filed 4 months overdue.

The Defendant had already conceded that the breach was serious and significant, and that there was no good reason for it. The Defendant contended that it was nevertheless just in all the circumstances to grant relief from sanction. The Master disagreed, reasoning that a delay of over 4 months was not acceptable, given the need for the expeditious administration of justice. It was noted that ordinarily, the entire process of a detailed assessment exercise ought to have taken no longer than 6 months in totality.

In the decision, it was pertinent that between mid-February 2020 and March 2020, the case was allowed to drift into default, with no effective action having been taken either to meet the deadline, or to remedy it at the earliest possible time. The Defendant’s representatives had not, for instance, applied to the court for an extension to the deadline to file their points of dispute. The Claimant had also notified the Defendant of the intention to obtain a default costs certificate before applying for the same. The Master held that the first national lockdown (which was announced on 23 March 2020) ‘then exacerbated the effect of failures that had already occurred’. The Master was not impressed with the avoidable delay in the Defendant’s making the application to set aside the certificate.

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