Recovering claims’ consultants costs in a successful Court application to enforce adjudication

Octoesse v Trak Special Projects [2017] BLR. Mrs Justice Jefford, TCC

Facts

Octoesse appointed Trak as its main contractor to construct residential and retail units in an area of London (Long Acre) under a JCT Intermediate Form of Contract.  The parties fell out over delays, and went to adjudication.  Octoesse was ordered to repay £59,000 of liquidated damages which it had wrongfully deducted in breach of contractual procedures.  Trak’s successful adjudication had been conducted by a claims consultant.  When Octoesse challenged the adjudication Decision by an application to the High Court for a Declaration, Trak decided to act as a litigant in person, using the Bar’s “direct access” rules to instruct Counsel itself, and using the same claims consultant to consider and advise on the Claimant’s claim and its evidence, to prepare a Defence and witness statements, do Instructions to Counsel, liaise with the Court and attend behind Counsel at the Court.

Trak won the Hearing and applied for costs.

Held:

1. If the Trak had used solicitors it would have been reasonable for solicitors to pay the claims consultant to do much of this work because the solicitors have not been involved in the case before and were not familiar with it. In those circumstances the claims consultant’s costs would have been recoverable as a legal costs disbursement.
2. Trak was entitled to exercise its right to appear as a litigant in person using Counsel through the direct access scheme. Accordingly it was reasonable that Trak should recover costs which would have been incurred and paid as a disbursement if it had used solicitors.
3. Octoesse was therefore ordered to pay the assessed costs in respect of both the claims consultant and Counsel.

Comment

This was a clear and pragmatic recognition of the legitimate role of claims consultants in the construction adjudication process.

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