The High Court has ordered the statutory receiver of Hollioake Limited to recover two-thirds of the costs of an application to amend pleadings, and refused to pause case-management directions pending a possible appeal by the defendants.
In a supplemental judgment delivered on 26 May 2021, Mr Justice Garrett Simons said the defendants’ opposition to the amendments was unjustified and based on an overly narrow reading of an earlier Supreme Court judgment. The opposition meant an application that could have been dealt with by consent on a Monday motion day instead required a separate half-day hearing.
The defendants had argued they should recover all costs associated with the amendment application. They submitted their objections had not significantly increased costs and that delays were attributable to the plaintiff. The plaintiff argued that the opposition had generated significant additional costs.
The judge said the plaintiff had succeeded in the amendment application, but that the need to apply to court arose from shortcomings in the original pleadings. He assessed two-thirds as a fair approximation after setting off the defendants’ costs of a notional short motion. The plaintiff was also awarded the costs of the later costs application, including written submissions and a hearing. The defendants were separately allowed the additional costs of preparing an amended defence, which the court said arose because the plaintiff’s case had not been fully pleaded at the outset. Costs are to be measured by the Office of the Chief Legal Costs Adjudicator if the parties cannot agree. Execution of the costs orders is stayed pending determination of the proceedings.
The defendants sought a stay of case-management directions for 28 days and, if they appealed within that period, until the appeal was decided. The judge refused, describing the prospects of an appeal against the principal judgment as slight and saying progress toward trial was in both sides’ interests. The directions would bring the case to motions for discovery and would not cause prejudice, he found. He left open the possibility of revisiting a stay if the nature or extent of discovery would materially differ depending on the appeal’s outcome.
The court set dates for amended pleadings, requests and replies on discovery, and any discovery motions. The case was listed for further case management on 4 October 2021. The judgment did not determine the underlying proceedings.