Not at Counsel’s convenience featured in the seemingly unhappy case of Horler v Rubin [2019] EWHC 2487 (Ch). The case now turned to the question of costs.

Mr Horler was seeking amongst other things, to stay execution of enforcement of the adverse costs that he was ordered to pay.

The argument that Mr Horler should not pay the costs from commencement was rejected. Any late disclosure was considered to have made no difference as to the continuation of the proceedings.

It was suggested that a further application was proposed, such as an application to the Court of Appeal for permission. This was point rejected from the vantage point of seeking to delay enforcement of the costs order.

The case highlights the point that after judgment has been handed down, it is seemingly wise to get on with any further applications expeditiously. The Court was not minded to grant a lot of extra time to enable the Applicant to make applications now, that they could have made at an earlier juncture, notably saying that “Counsel’s convenience” was not grounds for delaying the Respondent’s right to enforce its costs, although an inference might arguably be drawn that it could be the basis for a few days.

Extracts from the judgment:

“I do not accept that earlier disclosure of the notes, whether typed or handwritten, would have made any difference to Mr Horler’s decision to begin or to continue these proceedings. As I have found in paragraphs 163 and 164 of my judgment, he had unfortunately become obsessed by the case and blinkered, and even after disclosure of Mr Plant’s typed notes, his case was that the notes recorded Mr Hogg as his proxy only because this is what Mr Rubin must have told Mr Plant. I have no doubt but that he would have maintained this explanation whenever the typed or handwritten notes had been disclosed. The question of what a reasonable lawyer would have advised Mr Horler, therefore, is irrelevant. I should add that I see no basis for holding that the “reasonable lawyer” test is the correct test in law in considering how a party would have behaved in the context of costs when a complaint is made about late disclosure, nor has Mr Becker drawn my attention to any such authority: the correct test is, how would the party in question have behaved.“

“Mr Becker relies upon the proposed application to the Court of Appeal under CPR rule 52.30 as a “special circumstance”. However, I reject this. The premise of rule 84.7(4)(a), as is clear from the contrast with rule 84.7(4)(b), is that the party who is obliged to pay is able to do so, and therefore the mere fact that he may in due course obtain further sums from other sources does not without more amount to a special circumstance. Likewise, the mere fact that the source from which he may obtain those further funds is the person to whom, under the court’s order, he must currently make payment, does not without more amount to a “special circumstance”. Thus, in the Michael Wilson case (supra), as Mr Mohyhuddin Q.C. points out, the mere fact that the defendant, who was under an order to pay a Bahamian costs order which had been registered in England, had a possible cross-claim under an undertaking in damages was evidently not regarded by the Court of Appeal as a special circumstance in itself (see paragraph 38). In my judgment, something more must be shown, for instance, that if Mr Horler paid the sums ordered, but then succeeded in his application to the Court of Appeal, he would have difficulty in recovering them. But there is no suggestion here that this might turn out to be the case, because it is common ground that the defendants are represented by insurers.“

“As to the second limb, Mr Becker has asserted that Mr Horler is an impecunious pensioner and will not be in a position to pay the £120,000 payment on account which I have ordered. Given the evidence at this trial and in the previous proceedings, I have no reason to disbelieve this. However, even now, after I pointed out CPR rule 83 in my note of 2 September 2019, Mr Horler has not issued an application notice or submitted any witness statement in support, as required by rule 83.7(6). This is unsatisfactory, and of itself would be sufficient to disentitle Mr Horler to anything more than, at most, a stay of a few days to enable him to make his proposed application to the Court of Appeal, accompanied by an application for a stay supported by evidence.“

“Accordingly, I shall extend the time for payment of £120,000 from Monday 7 October 2019 (the usual date by when payment must be made, under CPR 40.11) to Friday 11 October 2011. Mr Becker has informed the court that it is hoped that Mr Matthew Collings Q.C., who drafted the particulars of claim in these proceedings, will assist on the application, and that he will be back in the country by the end of this month, and so this should give Mr Horler more than sufficient time to make his proposed application for permission and a stay before execution can take place. I accept that the effect of this is to require Mr Horler to make an urgent application to the Court of Appeal to consider a stay, but he has only himself or his advisers to blame for this, because it is now almost two months since judgment was handed down and he could have made his proposed application long ago so as to avoid the need to act in a rush. Counsel’s convenience cannot justify giving an extension of time that would deprive the defendants of the ability to enforce their judgment beyond more than a few days at most.“