The price of aggressive conduct

Strachey v Ramage [2008] EWCA Civ 804 16 July

In a boundary dispute, the defendant contended that the existing boundary fence was in the wrong place and removed it. The claimant commenced proceedings, which she lost, in the county court, but on which she succeeded in the Court of Appeal. The claimant sought an order for her costs both of the claim and of the appeal while the respondent defendant contended there should be no order as to costs in respect of either the claim or the appeal on the grounds that the claimant had pursued the claim aggressively and unreasonably and made no serious attempt to compromise the parties’ differences. The Court of Appeal held that those differences had been readily capable of compromise in a manner that would have given each side all that he/she could reasonably need. It regarded the opening letter from the claimant’s solicitors as aggressive and unjustifiably heavy-handed. A letter of that sort written to the other side’s solicitors is one thing: they can explain its exaggeration to the client. Such a letter written to the individual direct is another matter. It would be calculated to cause immediate worry and concern, much of which would be unjustified. After proceedings had been commenced, the defendant’s solicitors offered to concede the claim and make a contribution of £2500 to the claimant’s cost. The offer was not accepted because the appellant’s costs were by then more than £16,000, disclosure and the exchange of witness statements having taken place. For the appellant to have run up costs of that order by then was, on the face of it, disproportionate. There was nothing to indicate the claimant made any sensible or reasonable counter-proposal as to the costs basis on which she would be prepared to settle. At the case management conference, the district judge made a strong mediation recommendation, which the defendant solicitors also took up on the same day. There was no positive response from the claimant. The judgment continued:‘We consider that the case ought to have been capable of being settled at that point. The only inference we can draw as to why it was not is that the appellant was holding out unreasonably for all, or most of, her costs and was not prepared to make a sensible concession with a view to achieving a settlement. Put the other way, there is nothing before us to satisfy us that she made any reasonable response to the respondent’s overtures to concede her claim; and the overt aggression with which the appellant had run her case to date suggests that it is unlikely that she did. We consider that was unreasonable conduct on her solicitors’ part. Whilst we consider that, following our decision on the appeal, the appellant is in principle entitled to have costs of the claim, we will reflect those considerations by limiting her to the recovery of 66% of those costs.’ The claimant was entitled to her costs of the appeal, but in ordering a detailed assessment the court expressed its concern at the solicitors’ base cost of the appeal, there being a CFA with the solicitors, as with counsel each providing for a 100% uplift if the appeal was won. The judgment continued: ‘Whereas counsel’s base cost to the appeal amount to £4,500, which appears to us reasonable, the solicitors’ base costs are £21,955.50, which appears to us to be overall disproportionate, as does almost every component item making up that total of the base costs. We are also not satisfied that the risks to the appellant justified anything like a 100% uplift.’