Hold the Arithmetic

22 BACK PAGE LAW STORIES 7 May 2021 | www.newlawjournal.co.uk

Numerical nightmares & conjured-up counterclaims: Dominic Regan counts the costs of some headline headaches

any an innumerate lawyer will cash stuffed in suitcases up in the attic. That Damages of £9m were awarded, as was an admit that they chose their would equate to about £850,000 today. He interim payment of £8m on account of costs. profession—or it chose them— had a mistrust of banks, and reckoned that A counterclaim pleaded at £77m was both Mbecause they were terrified of cash was king. He was prosecuted for tax weak and opportunistic. It was calculated accountancy. Nevertheless, numbers big evasion and would undoubtedly have gone to put improper pressure upon the claimant. and small are the stock in trade of law. What to prison had the prosecution, led by Brian This was one of a number of grounds to follows are the numbers that have caught my Leveson QC, succeeded. justify an award of indemnity costs against eye over the years. His acquittal was down to the genius of his the defendant. £453,576,152 was awarded to Mrs barrister, George Carman QC, once described Concerns about liability can be Akhmedova in December 2016, following her as ‘Vinnie Jones in a horsehair wig.’ Carman fatally distracting. If liability were to be divorce from a Russian oligarch. He has not was a devastating advocate and secured the established, what losses can be proved? paid up, and we have just seen the claimant acquittal of Jeremy Thorpe too. Consider the nightmare that was Marathon secure an award of £75m against her son, who Carman did not come cheap. Another Asset Management LLP and another v Seddon was found to have helped his father put assets client, Peter Hook of New Order fame, used and others [2017] EWHC 479 (Comm). beyond the reach of his mother (Akhmedova the silk to preserve the licence of his infamous The defendants had unlawfully copied and v Akhmedov and others [2021] EWHC club, The Hacienda in Manchester. ‘Carman retained documents belonging to their 545 (Fam)). charged £15,000 for his first day and then former employer. A Part 36 offer to pay £104,707,772.72 was largest ever known a refresher of £10,000 a day.’ Since the £1.5m was rejected. At trial, the court found bill of costs and the subject of appeal in Motto hearing lasted 17 days, the fee note came in that no loss had been sustained and awarded v Trafigura Ltd [2011] EWCA Civ 1150, [2011] at £175,000—and that was over 30 years ago. slightly lower damages of £1! Incidentally, All ER (D) 138 (Oct). Lord Neuberger, then The full story is to be found in the astonishing had the claim merely sought nominal Master of the Rolls, noted at para [26] of the tome penned by Mr Hook, The Hacienda: How damages it could properly have been struck judgment that the defendant was ‘dismayed’ Not to Run a Club. out as an abuse of process on the ground that to be presented with such a hefty invoice. Incidentally, few appreciate the major dealing with it would be a waste of court Dismayed? Suicidal seems more like it. contribution that George Carman made to time and resources (para [3]). The subsequent Jackson reforms of 2013 personal injury litigation. It was he who Nominal damages represent a defeat, for would today have reduced that bill due to convinced the Court of Appeal to recognise in reality the defendant has successfully the abolition of recoverability of after the damages for handicap on the labour market defended. See Jacob J in Hyde Park Residence event insurance premiums (£9m here) in Smith v Manchester City Council (or Ltd v Yelland [1999] Lexis Citation 2478. and the soaring uplift on base costs of a Manchester Corpn) (1974) 17 KIR 1. The As someone who, upon realising they maximum 100%. antiquity of this decision is recognised by the have misplaced a fiver, takes up floorboards £1,078,972.72 was the useful reduction in claimant, an industrious domestic cleaner, and contacts Interpol headquarters in Lyon costs secured by the defendant NHS Trust in being described in the title of the judgment (without joy), I cannot begin to comprehend XDE (by her husband and litigation friend) v as a feme sole, which suggests a dish on a the feelings of Mr Thor Björgólfsson. When North Middlesex University Hospital NHS Trust French menu. he climbed into bed on Friday 3 October [2020] EWCA Civ 543, [2020] All ER (D) 180 2008, he was worth £3bn. By Monday, and (Apr). On the standard basis, CPR 44.3 (1) Ambitious antics without even popping out to the shops, he stipulates that costs unreasonably incurred Anyone who has dealt with civil claims for was worth nothing, thanks to the collapse of are not recoverable. Alexander Hutton QC more than half an hour will have encountered the Icelandic banking system. Easy come, easy succeeded in his submission that there was the massive counterclaim conjured up by go indeed. no justification for the claimant to have been many a defendant. Manifestly, some such £798,000,000 was the amount an abruptly switched from legal aid funding to a counterclaims are meritorious, but there ambitious Mr Lilley was after when he sued conditional fee agreement in the run-up to the are some who use the ploy to put the DMG Events (Lilley v DMG Events Ltd [2014] Jackson reforms. The sum saved represented frighteners on and ward off the claimant. EWHC 610 (IPEC)). Judge Hacon thought once again additional liabilities. The Supreme The third judgment of Pepperall J in Essex this slightly ambitious, quantified it at a tad Court has declined to grant permission County Council v UBB Waste (Essex) Ltd lower £83, and struck the action out! You to appeal. [2020] EWHC 2387 (TCC) is bursting don’t ask, you don’t get, as claimant lawyers with wisdom on such conduct. The claim mutter... NLJ Cash in the attic concerned the future of a 25-year long This autumn, a TV drama about the trial of contract worth £800m. The claimant spent Professor Dominic Regan of City Law School, high earner, Ken Dodd, will be broadcast. £15m in successful pursuit of the claim and director of training at Frenkel Topping Group & Officials raided his home and found £336,000 in defending a very large counterclaim. NLJ columnist (@krug79).