By Sean Linley, Costs Draftsman  
The High Court has permitted a Claimant to recover costs where there was a failure to serve a statement of costs.  
The case of Vine v Belfield [2021] EWHC 3068 (QB) (05 October 2021) concerned a libel action brought by BBC radio present Jeremy Vine against a former BBC radio presenter, Alex Belfield.  
Mr Justice Nicklin found that there had been serious failings by the Defendant in complying with orders of the court. He specifically found that the Defendant had significant cuplability and it was right that he "pay the costs that have been thrown away by [the] exercise". 
The High Court stated it needed "to make clear to litigants that non-compliance with orders will ordinarily lead to the imposition of sanctions." 
The Defendant sought to argue that the Claimant had failed to serve its Statement of Costs in relation to its application and sought to rely upon PD 44 9.5(6). This provides that the court will take into account such a failing when determining what order to make about costs. It was noted that "the failure to serve a statement of costs disables the paying party from having an opportunity to consider whether there are objections that can be taken to the costs." 
Mr Justice Nicklin held that: 
"Notwithstanding the failure to serve the statement of costs, I am nevertheless satisfied that, as a matter of principle, the Claimant is entitled to the costs of the application that was made before Kerr J, that led to his order of 7 August, and also the costs of today. These costs have been wasted as a result of a failure to comply the Court’s orders and directions which has led to this hearing having to be aborted. 
The Defendant declined an adjournment on the day to be able to obtain instructions for a summary assessment, instead requesting that an order for Detailed Assessment be made which the court accepted.  
The court also awarded a high interim payment pursuant to CPR r44.2(8). The Claimant sought costs of circa £32,000.00 with a payment on account of £25,000.00 awarded.  
The case highlights that there are a wide range of discretion available to the court when considering a failure to serve a statement of costs. There is certainly a contrast with the recent decision in Mahandru v Nielson and Kuznetsov, R (On the Application Of) v London Borough of Camden where costs were simply disallowed where a schedule of costs was not filed or served. The difference in the case at hand, is that such details were before the court on the day and undoutedly there were also significant conduct issues in play. 
As ever the best defence is always compliance. Parties should look to avoid such arguments by ensuring that steps are taken to provide a statement/schedule of costs where required (see PD 44 9.5(4)(b)). There is also a reminder that wherever a costs order is made, the court should ordinarily make an award for an interim payment on account of costs as per CPR 44.2(8). 
If you're unsure whether you might need a statement or schedule of costs - or just need some general guidance, call 01482 534 567 or email for a no-obligation chat with one of our friendly team. 
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