Much has been made of the comments of Chief Master Marsh in Leslie & Others v MGN Limited [ EWHC 1244 (Ch)] at paragraphs 38-48 specifically with regard to the witness evidence phase of a budget.
To set the scene, the case is one brought by John Leslie, Chantelle Houghton and others, in the second wave of the Mirror Newspapers Hacking Litigation. The hearing, on 24th May 2018, was one relating specifically to costs budgeting. There were two budgets to be considered, claiming estimated future costs in the witness evidence phase of £99,000.00 and £85,000.00 respectively. In a nutshell the Court reduced these sums to £60,000.00 and £50,000.00 respectively.
Whilst concern is centred upon the comments of the Court as to the Claimant’s statements, with specific regard to the Court’s concern that “They will have become an artificial construct of the lawyers”, it is important to take the comments in context.
It is the case that the comments of the Court were very much relating to the specific facts in the case and the Court’s concern that “the factual context in which the court is asked to assess the budget phase for witnesses is unsatisfactory”. The assumptions contained within the Precedent H were therefore deemed by the Court to be factually lacking. By way of an example Mr Leslie’s witness evidence phase worked on the assumption of there being 5 statements for the Claimant and up to 20 statements for the Defendant. When at Court however, the skeleton argument lodged by Counsel for Mr Leslie contended that the two Claimant’s would prepare 20 statements between them. In turn the Defendant stated that they expected to produce up to 10 statements dealing with general issues and up to 20 short statements (not exceeding 5 pages) dealing with board knowledge. The Claimants cannot have been helped by these eleventh hour amendments to the assumptions. Further, the Court heard how representatives for Mr Leslie had, in open communication, advised their opponents that witness evidence was “well advanced”. This, coupled with the £26,000.00 in incurred costs included in the witness evidence phase of Mr Leslie’s budget did rather beg the question as to the level of work required to be done moving forward.
It is therefore important to ensure that the Court’s comments in this case are considered alongside the facts of the matter. The Court was plainly aggravated at the inaccuracy of the assumptions within the respective costs budgets. If we at least take from this case the importance to be attached to the accuracy of each and every phase of the budget, the requirement to liaise with Counsel where appropriate as to the anticipated design of the case moving forward, then one ought to avoid the wrath of an understandably frustrated Court.