Christopher Parker KC and Caley Wright appeared on behalf of the Claimants, successfully applying for the Court to exercise its discretion to bring a circa £200 million claim within the costs budgeting regime.

The judgment is one of relatively few to address the question of when it is appropriate to impose costs budgeting on a claim which is not automatically within the provisions of CPR 3.12, particularly when proportionality is much less likely to be an issue, and includes a comprehensive review of the authorities and the principles to be applied.

The Claimants argued that costs budgeting was appropriate so that the liquidator could know with a degree of confidence what level of ATE cover to put in place both for the benefit of the Defendants and himself (given his potential liability for costs as a claimant).

It was argued for the Defendants that costs budgeting should not be imposed because (a) the Claimants had been informed of the Defednants’ anticipated costs by the schedules served in support of the security for costs application, (b) it was likely – this being a fraud claim – that any costs order made at the conclusion would be for indemnity costs, at which point costs budgets would no longer be the starting point for any costs assessment, and (c) that the exercise itself was disproportionate.

The Court considered the principles in Simpkin v The Berkeley Group and in Sharp v Blank and determined that costs budgeting was appropriate, in that it would provide a quantification of the potential liability that all of the parties might face, allowing them to take appropriate measures (such as ATE insurance), based on more accurate estimates than had been provided in the context of the parties’ negotiations on the issue of security for costs. The argument on proportionality of the budgeting process was dismissed.

Judgment can be viewed here.