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Setting aside a default costs certificate – learning from other's mistakes. Part Four: Gregor Fisken Ltd v Carl [2021] EWHC B9 (Costs).

Setting aside a default costs certificate – learning from other’s mistakes. Part Four: Gregor Fisken Ltd v Carl [2021] EWHC B9 (Costs).

Default Costs Certificates – Part IV

In Gregor Fisken Ltd v Carl [2021] EWHC B9 (Costs), Master Leonard refused to retrospectively validate service of a Bill of Costs (totalling £511,000.00) that had been served by the Claimant. The Claimant served the Bill of Costs “upon the wrong person, by the wrong method, simultaneously serving by post to the wrong address”. This catalogue of errors could have been “avoided with a little diligence”.

The Defendant’s original Solicitors, Davis Woolfe, wrote to the Claimant’s Solicitors to confirm that they were no longer acting and that the Defendant had instructed a Direct Access Barrister (note, no Notice of Change was ever filed). Shortly after, the Claimant’s Costs Representatives (MRN Solicitors) served a Bill of Costs, alongside a Notice of Commencement, upon the Defendant at the address given by Davis Woolfe.

In the absence of a response from the Defendant, the Claimant obtained a default costs certificate. Before Master Leonard, the Defendant sought to set the default costs certificate aside, whereas the Claimant asked Master Leonard to remedy any error in relation to serving the Bill and/or for an Order (pursuant to CPR 6.15(2) and CPR 6.27, that service be deemed as good service.

It was the Defendant’s position that:

  • The Bill of Costs should have been served on Davis Woolfe and not the Defendant himself (as Davis Woolfe were still on the Court Record);
  • Attempting to serve the Bill of Costs personally by email breached the mandatory requirements of Practice Direction 6A, as the Defendant had never indicated that he was willing to accept service by email;
  • The Bill of Costs was sent, via post, to an address that was not a valid address for service.

Accordingly, Master Leonard agreed with the Defendant’s submissions and commented that “in the circumstances, all that the Claimant had to do to effect service of the notice of commencement was to send it and the appropriate supporting documents by DX or ordinary first-class post to Davis Woolfe”.

Fortified by the recent ruling of Mr Justice Foxton in Serbian Orthodox Church (see our commentary here), Master Leonard said he had already concluded “that it cannot be right to apply CPR 3.10 so as to validate service here” as “These defects in service are not minor or technical. Nor can they be said with certainty to have had no practical effect, given the possibility that service upon solicitors might have prompted a timelier response. Even solicitors who had declared themselves no longer to be acting might well have felt duty bound to offer the defendant some guidance on the consequences of ignoring a notice of commencement”.

With that, Master Leonard set aside the default costs certificate and noted that the same should have been set aside “when the SCCO received MRN’s letter”.

If you need assistance with either applying for a default costs certificate, or to set one aside or regarding any queries you may have in relation to any of your legal costs requirements please do get in touch with the team on 01733 350 880, or by email mail@aandmbacon.co.uk. For more information please do visit our website www.aandmbacon.co.uk.

Published 23 September 2021

Author – Amy Avory

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