Ociusnet UK Ltd & Anor v Altus Digital Media Ltd & Anor [2021] EWHC 3377 (Ch)

Court warning the parties that the costs incurred in arguing about costs were becoming disproportionate and that the parties should look to another avenue to resolve their dispute.

C. Approach to resolution of the dispute

I add the following to emphasise certain points discussed in argument.

In the most recent Court of Appeal case addressing principles applicable to s.51(1) applications, Goknur Gida Maddeleri Enerji Imalet Ithalat Ihracat Ticaret Ve Sanayi AS v Aytacli [2021] EWCA Civ 1037, Lord Justice Coulson opened his judgment as follows:

"For those who believe that most civil litigation does not end up being about the costs that were incurred in pursuing that same litigation in the first place, look away now."

That was said at the conclusion of litigation. The present case has hardly reached first base. Despite that, it has involved three hearings requiring multiple days of preparation by the parties and significant court time, including consideration of a hearing bundle running to nearly 700 pages not including authorities. No hearing so far has focussed on the merits. Each has dealt almost entirely with what costs should be paid and by whom or the procedure for resolving such. The costs of arguing about the costs of a claim which has barely started already run to tens of thousands of pounds.

At para. 19 above, I referred to the previous order adjourning the s.51(1) application, which included an order facilitating the parties' engagement in settlement/ADR. In this case, in my view, a non-litigated approach to the dispute should be treated as the primary not the "alternative" means. The recent Ministry of Justice document Dispute Resolution in England and Wales Call for Evidence 2021 states at p6:

"We want to support people to get the most effective resolution without devoting more resources than necessary – financial, intellectual and emotional – to resolve their dispute. Creating more proportionate and constructive routes to resolution avoids the need for these resources to be expended, saving the user's time, as well as reducing their levels of stress at an already difficult time."

Having now considered the case on three occasions it is clear that devoting significant financial, intellectual and emotional resources to this litigation in the wake of Mr Peter Smith's passing is unlikely to be the most efficient and cost effective way of resolving the key underlying issues. The court will support more effective means of doing so. In further management of the dispute, the parties should co-operate in creating proportionate, constructive routes to resolution, inter alia to avoid more costs being incurred arguing about costs.