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You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> X v The Transcription Agency LLP & Anor [2023] EWHC 2283 (KB) (15 September 2023) URL: https://www.bailii.org/ew/cases/EWHC/KB/2023/2283.html Cite as: [2023] EWHC 2283 (KB), [2023] Costs LR 1543 |
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KING'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
LIVERPOOL DISTRICT REGISTRY
35 Vernon Street Liverpool L2 2BX |
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B e f o r e :
____________________
X | Claimant |
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| - and - |
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(1) The Transcription Agency LLP (2) Master Jennifer James |
Defendants |
____________________
Mr Dan Stacey (instructed by Kennedys Law LLP) for the First Defendant
Mr Will Perry (instructed by the Government Legal Department) for the Second Defendant
Hearing date: 6 June 2023
____________________
Crown Copyright ©
MRS JUSTICE FARBEY:
Introduction
transcripts
of court hearings pursuant to a Framework Agreement with the Lord Chancellor relating to the provision of court reporting and
transcription
services
("the Framework Agreement"). The second defendant is a High Court Master and a Costs Judge. During the course of costs proceedings before the second defendant, the claimant requested
transcripts
of three hearings which were to be produced by the first defendant.
service
of any further documents that the court would need to consider.
transcript
of Ms Goodson's evidence. I dealt with the Form on the same day. As it was optimistic to expect the
transcript
to be ready by the date of the costs hearing, I directed that the claimant should file and serve a Note of any passages of Ms Goodson's evidence on which he sought to rely. In the written reasons for my direction, I explained that the Note could then be checked against the approved
transcript
when it was ready. The claimant did not provide a Note.
transcript
of Ms Goodson's cross-examination. I directed that only the relevant pages should be filed and served, and that the relevant passages should be sidelined. The claimant asked his selected transcribers to produce a short part of Ms Goodson's evidence. However, the transcribers were not willing to search for a particular part of the evidence on the audio recording.
transcript
within the period I had directed. The claimant took the view that it was in any event disproportionate to obtain a
transcript
of Ms Goodson's evidence as he only wished to rely on a small part of what she had said. For these reasons, no
transcript
has been provided. The claimant's email to my clerk seemed to imply that I should listen to the audio recording in lieu of a
transcript.
I would not regard such an unorthodox approach as being an appropriate use of judicial resources.
The main judgment
"162. The claimant regards it as improper that the second defendant is represented by GLD (as explained in his Memorandum dated 16 December 2022 and in paras 22-24 of his witness statement). In his skeleton argument, Mr Boyle suggests that GLD is "not entitled to act for an individual unless it asserts that the government has a vested interest in the outcome of the case." He implies that the second defendant has not applied her own independent judgment to certain matters that have arisen in the course of these proceedings, having let herself be dominated by hostile government lawyers 'supposedly instructed by her'.
163. The gist of the claimant's objection to GLD appears to be a concern that the government (a party to the costs proceedings before the second defendant) would have sight of information that was disclosable in the assessment of costs but would in any other context be the subject of legal professional privilege. The claimant is concerned that his privileged material may have been deployed against him in the present proceedings. However, there are no proper grounds for advancing such a proposition.
164. There is no evidence before me that GLD has mishandled any information or documents relating to the claimant. Nor have I been given any reason to suppose that GLD as an organisation does not have adequate systems for conflict checks in place. While the claimant has repeatedly goaded GLD (such as by pursuing a SAR to GLD raising disputatious questions about GLD and its various instructed counsel), I cannot conceive of how I could properly interfere with the second defendant's relationship with her solicitors and independent counsel. I have not been asked to take any action or make any order in relation to the second defendant's representation. I shall not do so."
The parties' positions on costs
Legal framework
"(8) The following circumstances take a case out of the norm and justify an order for indemnity costs, particularly when taken in combination with the fact that a defendant has discontinued only at a very late stage in proceedings;
(a) Where the claimant advances and aggressively pursues serious and wide ranging allegations of dishonesty or impropriety over an extended period of time;
(b) Where the claimant advances and aggressively pursues such allegations, despite the lack of any foundation in the documentary evidence for those allegations, and maintains the allegations, without apology, to the bitter end;
(c) Where the claimant actively seeks to court publicity for its serious allegations both before and during the trial in the international, national and local media;
(d) Where the claimant, by its conduct, turns a case into an unprecedented factual enquiry by the pursuit of an unjustified case;
(e) Where the claimant pursues a claim which is, to put it most charitably, thin and, in some respects, far-fetched;
(f) Where the claimant pursues a claim which is irreconcilable with the contemporaneous documents;
(g) Where a claimant commences and pursues large-scale and expensive litigation in circumstances calculated to exert commercial pressure on a defendant, and during the course of the trial of the action, the claimant resorts to advancing a constantly changing case in order to justify the allegations which it has made, only then to suffer a resounding defeat."
The claimant's explanation and mitigation for his conduct of the proceedings
The first defendant
Should costs follow the event?
"persisted with its stance that the Framework Agreement was highly sensitive and confidential when in fact it was not".
"believed that the First Defendant's redaction of clause 40 was designed solely to avoid the concession that there was an obligation upon the First Defendant to be insured, with which the First Defendant had failed to comply (c.f. the failure to provide insurance details pursuant to the Provision ofServices
Regulations 2009)."
services)
cannot possibly have contained any personal data of the claimant. The only relevance of the Framework Agreement was to assist the court with the question whether the first defendant was a data processor or a data controller, which was in issue. The first defendant's insurance position could have no connection to that question.
transcription
requests. Those schedules were provided just before the trial commenced. However, the claimant was not entitled to see the data in the schedules: the court would not have ordered it. The claimant's windfall does not sound in costs.
Standard or indemnity costs?
"As to your request for information relating to insurance, your request is refused. The existence or non-existence of insurance and/or insurance information is not an issue between the parties in the Claim and neither is it a legally relevant factor. The provisions of the Third Parties (Rights against Insurers) Act 2010 do not apply to your client's Claim as there is no suggestion of insolvency on the part of the First Defendant. Moreover, there are no exceptional circumstances within the meaning of the decision of Jefford J. in Peel Port Shareholder Finance Company Ltd. v. Dornoch Ltd. [2017] EWHC 876 (TCC) and generally Travelers Insurance Company Ltd v.XYZ
[2019] UKSC 48."
Services
Regulations 2009 - was legally flawed. The claimant's solicitors referred in correspondence to the Regulations but failed properly to engage with the first defendant's position that the Regulations did not apply. Instead, the claimant's solicitors persisted in unnecessary demands relating to insurance.
"It appears that the redaction of clause 40 was to conceal the obligation upon the First Defendant to be insured had not occurred. The lack of insurance was inferred by the Claimant from the failure to provide insurance details… [and] by the fact that the 1st Defendant responded to the claim rather than passing the matter onto insurers."
"[The first defendant's] obsession with hiding its lack of insurance inevitably contributed to the conduct of the proceedings: if they [i.e. the first defendant] weren't prepared to be open in that simple regard, what else might they not disclose?"
"concerned as to whether the Treasury Solicitor is permitted to conduct this litigation for the 2nd Defendant."
"2. It is incumbent on Kennedys LLP to ensure that the law is upheld and it is impermissible to have a situation in which litigation may be being conducted by someone who is not permitted to do so.
3. Please provide your observations and proposals and refer this aspect to your COLP [i.e. Compliance Officer]".
The second defendant
Is the second defendant indemnified?
Should costs follow the event?
service
and a defence. She undertook the disclosure of documents in accordance with the requirements of the CPR. She responded to the claimant's request for further information under CPR Part 18. She instructed leading and junior counsel to appear at trial. It appears that attempts to mediate a compromise did not bear fruit but the suggestion that the second defendant failed to engage with any part of the proceedings in some culpable manner is unfounded.
"the reality is that the Government (by the MOJ/GLD/TSol) took the opportunity of running a test case on its own obligations by inserting itself into litigation between individuals and obliging the Claimant to pursue the matter to trial to secure a meaningful response. The Claimant acknowledges that that there is an overlap between the indemnity issue and the principle, because the decision by the MOJ to fund the Second Defendant goes to the heart of the conduct of this action on the Second Defendant's part."
"…we very much hope that your client:
1. Can explain whether there are any particular documents or categories of personal data that they wished to obtain when making the SAR;
2. Can agree that the part of the claim relating to personal data they already hold, or have held in the past, should not proceed; and
3. Can agree to withdraw their claim for a declaration that our client was in breach of the UK GDPR time limits for complying with the SAR.
If your client is able to confirm agreement to points 1-3 then we consider it will be possible for the claim to be brought to a swift conclusion, with your client obtaining the personal data which they have sought by way of the claim."
Standard or indemnity costs?
transcripts
of proceedings before her. He filed a skeleton argument saying:
"It is, of course, an offence to make any recording other than the official recording, so the idea that the Court can unilaterally rewrite the contents of thetranscript of the proceedings (rather than any judgment), particularly when the issue is the exchanges between a party and the tribunal, is particularly alarming: the words said were said, no matter what one might otherwise wish, and there can be no judicial interference in that regard because it goes to undermine and pervert the course of justice."
"Regrettably, the impression is that the Defendants have taken the decision not to volunteer the whole truth in order to interfere with the just disposal of the case."
"The impression given is that the Second Defendant's position is effected [sic] by the MOJ or the [GLD] lawyers themselves."
Payment on account
(1) 90% of the first defendant's budgeted costs in the sum of £49,731.48 and 50% of the first defendant's incurred costs in the sum of £11,552.80; and
(2) 90% of the second defendant's budgeted costs in the sum of £27,536.62 and 50% of the second defendant's incurred costs in the sum of £10,171.50.
Conclusion