Hill: No good reason for failing to attend hearing
The High Court has criticised a solicitor’s “disorganised and unhelpful” conduct of a claim in refusing to set aside an order that his client’s costs budget be limited to the court fees.
Mrs Justice Hill said there was also evidence that Sarinjit Singh Bahia had misled a King’s Bench master in obtaining relief from sanction for the failure to subject a costs budget in time.
Mr Bahia had cited overwork as a cause of problems in the case but the judge said this was generally not an adequate reason and also needed to be seen in the context of “repeated examples” of non-compliance.
Mr Bahia was acting for the claimant in data protection claim. At a costs and case management conference (CCMC) in May 2023, Master Yoxall granted relief from sanction from late filing so that the claimant could rely on his Precedent H (costs budget form) and then dispensed with costs budgeting.
The defendants appealed; Mr Bahia did not file a respondent’s notice or any written submission, or appear at the hearing in March, at which Mr Justice Saini allowed the appeal.
As a result, the claimant could not rely on his Precedent H and so was treated as having filed a budget comprising only the applicable court fees.
The claimant appealed this on the basis that Mr Bahia had not received any notice of the appeal hearing.
He later accepted that the court had, in fact, communicated the date of the hearing to his firm by email on 22 December, but said the office had already closed for the Christmas break and he didn’t see it in his emails after he returned. He only became aware of it after receiving Saini J’s order.
Hill J accepted that Mr Bahia had been unaware of the hearing but this was not a good reason for not attending.
“It is perhaps unusual for a hearing to take place that has generated nothing more than one email between the parties and court, but that is what happened here. It might seem harsh to be critical of a solicitor for missing one email, but I am satisfied that such criticism is appropriate on the specific facts of this case.”
There were several reasons for this, including the “clear theme in the paperwork that Mr Bahia is overworked: indeed he has prayed this in aid on several occasions in correspondence and in applications. Although he did not advance this in terms as the reason for his failure to read the 22 December 2023 email from the court, it is the likely reason.”
Mr Bahia was aware that the appeal had been issued and served and that permission had been granted – he should have been expecting to receive communications from the court.
“Third, there was no evidence placed before me of any robust system to ensure that emails sent to that address were read and acted upon other than by Mr Bahia personally doing so.
“Although he referred to the role of his assistant it was far from clear whether this person also checked his email account and if so why they had also missed the email. This appears to be an inherently risky system.”
Hill J put the failure “in context of the repeated examples of the [claimant’s] non-compliance with court orders and the disorganised and unhelpful conduct of the claim overall, including of this application.”
She concluded that the reason the claimant gave for not attending the appeal hearing was not a good one.
Further, on the merits of the appeal, there was “a very good argument” that Master Yoxall “was in fact misled in being told both by Mr Bahia in his evidence in support of the relief from sanctions application, and by the [claimant’s] counsel at the CCMC (no doubt acting on instructions), that [the budget] had been both filed and served.
“This is plainly capable of amounting to a material irregularity that permeated the decision to grant relief from sanctions and the decision to dispense with costs budgeting.”
The issue of the claimant’s budget “has already, in my judgment, comfortably exceeded the allocation of court resources that it deserves” and so fell foul of the overriding objective, while the failure to attend the appeal failed the Denton test for relief from sanction.
The judge said Mr Bahia had told her that the claimant was now changing representatives.
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