Nichola Vine is a Partner in the construction team at Wright Hassall, she specialises in all aspects of construction and engineering contracts and disputes.
This hasn’t stopped inventive arguments being advanced over the years, especially where there is subsequent or parallel litigation ongoing.
The case of Octoesse LLP vs Trak Special Projects [2016] EWHC 3180 (TCC) concerned a related issue, namely when are claims consultants’ costs recoverable? The contract was a JCT Intermediate Building Contract form (IC2011). Works were not completed on time, and a certificate of non-completion was issued by the contract administrator on 3rd October 2014. On 13th February 2015, practical completion was confirmed. On 3rd July 2015, a claim was submitted by the contractor for an 18-week time extension. The contract administrator awarded 9.5 weeks, but did not issue a further certificate of non-completion. And on 4th May 2016, the final certificate was issued for payment. A pay less notice followed on 16th May 2016 deducting liquidated damages of £89,250.
An adjudication commenced, in which it was decided that the pay less notice was invalid; the employer was not entitled to deduct LADs and the contractor was owed £59,991.83 plus interest and other sums, largely because no revised certificate of non-completion was issued in 2015.
The employer went to court to challenge the decision, and it failed. The contractor asked for its costs to be assessed by the court, and this is where the interesting point arose.
The contractor was represented by consultants rather than solicitors. Counsel had appeared at the hearing and this cost was not challenged. What the employer did object to was paying the costs incurred by the claims consultants who had acted for the contractor and the costs incurred by those consultants in preparing court documents and statements and attending court.
Another case concerns a well-known tennis champion and the inspector of taxes. Whilst the media was interested in the celebrity aspects, there was also a detailed legal argument over recoverability of costs. That decision had seemed to suggest that the costs of consultants who give advice in litigation are not recoverable, and was relied on by the employer to defend the claim for significant portions of the costs claimed in this enforcement.
However, the court disagreed that Agassi amounted to a blanket ban on recovery. It said that the real question to be answered is whether the costs claimed for the consultants would usually have been recoverable by solicitors as a disbursement. One would think this would fall in the employer’s favour as preparing court documents and attending court would seem to be work ‘normally done’ by solicitors.
Adjudication seems different; the particular nature of adjudication and the curtailed timescales were a significant factor in the court’s decision-making. The court acknowledged that the speed of adjudication enforcement meant the consultants originally involved in the adjudication were often asked to perform tasks that might usually be considered the role of the solicitor. The logic ran that as it would have been both “practical and normal” for solicitors to seek the assistance of the consultants involved in the original dispute when dealing with enforcement, the consultants’ costs would have been disbursements and recoverable. Therefore, costs incurred by claims consultants assisting a litigant in person will also usually be recoverable on enforcement of that decision assuming they represented the party in the original adjudication.
