As was reported last FrontRow Legal recently successfully represented rugby league player Keith Mason ‘’the Player’’ in a claim worth £167,000 against his former club Huddersfield Giants ‘’the Club’’ (this blog can be found here).
An interesting aspect of this case which has not been reported however relates to the order made by HHJ Saffman following the costs hearing that the Club must pay the Player’s legal costs, which will be assessed on the indemnity basis. In litigation proceedings, once a judgment has been reached the judge will usually order that the unsuccessful party pay the successful participant’s fees. Each party submits a claim for their costs and these are assessed by the court. In normal circumstances these will be assessed on what is known as the standard basis. These costs must be ‘proportionate to the matters in issue’ and any doubt as to any of the items is resolved in favour of the paying party. In certain cases however the Judge can order that costs be assessed on the indemnity basis. These costs need not be proportionate and any doubt is resolved in favour of the receiving party.
An order for costs to be assessed on the indemnity basis usually results in a substantial increase in the amount paid by the unsuccessful party; therefore it will only be made in certain circumstances. In this particular case the Judge found that the conduct of the Club throughout the litigation was unsatisfactory. CPR 44.2 sets this out as being one factor which is to be taken into consideration when deciding on what basis to award costs. Additionally it was found that the Club did not engage sufficiently in efforts to try to resolve the dispute with the Player, this is also contained within CPR 44.2. Reference was made to the fact that an offer to settle the dispute for £100,000 was made by the Player, to which he received a counter-offer of £5000 shortly before the trial started. Although this was not a fully compliant part 36 offer, Judge Saffman ordered that it should be taken into account when considering whether to order indemnity costs due to the provision set out at CPR 44.2(4)(c), which allows non-part 36 complaint offers to be considered.
In particular, HHJ Saffman stated that the conduct of the Club in relation to the disclosure of documents throughout the case was contrary to that which was expected. A large amount of emphasis was placed by the Club on that fact that they had received several complaints concerning the offensive picture, which had been placed on the Player’s twitter account. At an early stage of the isclosure process the Player was expecting to be able to see these emails, as they were important in the context of the case. However, the Club stated that these were no longer in existence. Following a claim by the Player specifically naming the emails to be disclosed, this statement was repeated. It was only when an order was made for the appearance in court of the individual who had access to these complaints that the emails were disclosed, shortly before the trial itself started.
An order to pay costs to be assessed on the indemnity basis will be an unwanted additional cost for the Club, following what has already been an expensive process.