EE Limited v Virgin Mobile Telecoms Limited

Mrs Justice Joanna Smith Wednesday, 27 September 2023 ( 11:17 am) Ruling by MRS JUSTICE JOANNA SMITH

1. At this consequentials hearing following a judgment that I handed down on 31 July 2023, the first question that I am required to address is whether the costs should be summarily assessed, as is contended for by the defendant, acting through Mr Zellick KC, or whether the costs should be sent off for detailed assessment, as Mr Shirazi contends on behalf of the claimant.

2. The ordinary approach following a one-day hearing is for the costs to be summarily assessed and it appears that both parties originally anticipated that that would, in fact, be the approach to be taken by the court in this case because both parties served schedules of costs in advance of the original hearing. In advance of today’s hearing, the defendant has served a further schedule of costs which is intended to update and replace its original schedule.

3. However, Mr Shirazi has very effectively made a number of points before me today which have convinced me that summary assessment is not the right approach to take in the circumstances that now prevail.

4. In brief, those circumstances are that: a. very significant costs have been incurred by the claimant in relation to the original application and, as is clear from the updated schedule, its costs have substantially increased since the date of the original hearing; b. there appear to be discrepancies between the two schedules of work done on the documents attached to the original costs schedule and the updated costs schedule, which Mr Zellick has explained by reference to the fact that a costs draftsman has recently become involved. However, it is clear that the figures that were originally certified have been changed and I consider that to be an unsatisfactory outcome. c. there has been a significant increase in the costs of the action (independent of the costs of the application) since the original hearing, an increase of some £63,000. I am not satisfied that this increase has been adequately explained so as to satisfy the court that there is no duplication between the costs of the proceedings and the costs of the application.

5. On his feet, Mr Zellick explained that the costs draftsman has taken the view that the costs of dealing with the question of permission to appeal should be split 50/50 as between the costs of the proceedings and the costs of the summary judgment application, but I have no evidence as to that, as Mr Shirazi correctly points out, just as I have no evidence as to Mr Zellick's explanation that a 20% discount was applied to un-billed fees “for safety” at the original stage of the proceedings.

6. It does seem to me that in the circumstances of this case, it would have been appropriate to file some evidence in advance of today’s hearing explaining exactly why the original schedule of work done on documents has changed so substantially and why there has been a significant increase in the costs of the overall proceedings. In circumstances where that has not been done, it appears to me that more detailed scrutiny is appropriate and that a global approach should be taken to the costs of the proceedings by a costs judge on a detailed assessment in due course.

7. In the circumstances, I am going to accede to the submissions made by Mr Shirazi and order that this matter should go off for detailed assessment.