Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [No 4]
[2006] WASC 317 (S)
•3 NOVEMBER 2006
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS |
| CITATION | : | LEIGHTON CONTRACTORS PTY LTD -v- CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION [No 4] [2006] WASC 317 (S) |
| CORAM | : | LE MIERE J |
| HEARD | : | 30 OCTOBER, 2 & 3 NOVEMBER 2006, 4 SEPTEMBER 2007 |
| DELIVERED | : | 3 NOVEMBER 2006 |
| SUPPLEMENTARY | ||
| DECISION | : | 29 FEBRUARY 2008 |
| FILE NO/S | : | CIV 1132 of 2006 |
| BETWEEN | : | LEIGHTON CONTRACTORS PTY LTD (ABN 98 000 893 667) First Plaintiff |
| KUMAGAI GUMI CO LTD (ABN 74 002 810 317) Second Plaintiff | ||
| AND | ||
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Defendant | ||
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS Second Defendant | ||
| JOSEPH MCDONALD Third Defendant |
[2006] WASC 317 (S)
Catchwords:
Civil practice and procedure - Costs - Application for special costs - Turns on own facts
Legislation:
Legal Practice Act 2003 (WA), s 215
Result:
Application allowed in part
Category: B
Representation:
Counsel:
| First Plaintiff | : | Mr K J Mony de Kerloy |
| Second Plaintiff | : | Mr K J Mony de Kerloy |
| First Defendant | : | Mr G R Hancy |
| Second Defendant | : | Mr G R Hancy |
| Third Defendant | : | Mr G R Hancy |
Solicitors:
| First Plaintiff | : | Freehills |
| Second Plaintiff | : | Freehills |
| First Defendant | : | Slater & Gordon |
| Second Defendant | : | Slater & Gordon |
| Third Defendant | : | Slater & Gordon |
Case(s) referred to in judgment(s):
Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC
122 (S); (2003) 28 WAR 95
Green v Wilden Pty Ltd [2005] WASC 83 (S)
Hodgkinson v Doepel & Associates Architects Pty Ltd [2006] WASC 237 (S)
Jewel Walk Pty Ltd v Kondinin Group Inc [2001] WASC 197
SDS Corporation Ltd v Pasdonnay Pty Ltd [2004] WASC 26 (S2)
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LE MIERE J: The plaintiffs apply for special costs orders pursuant to s 215 of the Legal Practice Act 2003 (WA) (the Act).
The Action
2 The plaintiffs' action arises from unlawful industrial action engaged
in by the defendants or employees of the plaintiffs and of the plaintiffs' sub-contractors engaged in the building and maintenance of a portion of the New Metro Rail City Project, which is part of the Perth to Mandurah railway extension.
3 The plaintiffs claimed that on various dates between July 2004 and
March 2006 the defendants engaged in unlawful industrial action in contravention of s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) (the BCII Act) and committed the torts of inducing breaches of contract and unlawful interference in the plaintiffs' business.
4 The action was commenced by writ of summons issued on
13 February 2006. On 24 February 2006 I made orders on the application of the plaintiff including an injunction restraining the defendants from interfering directly or indirectly with the due performance of certain specified contracts which are contracts pursuant to which the plaintiffs carry out work on the New Metro Rail City Project. That injunction was subsequently extended until judgment on the preliminary issues to which I will now refer.
5 On 20 April 2006 the court ordered that certain issues in the action
be tried as preliminary issues. Essentially the issues which the court was
required to determine on the trial of preliminary issues were:
1. Whether, in the period from 9 March 2005 to 8 March 2006 the defendants engaged in unlawful industrial action or were involved in unlawful industrial action by employees of the plaintiffs and of the plaintiffs' sub-contractors in contravention of s 38 of the BCII Act. 2. Whether there should be a permanent injunction against the defendants. 3. Whether pecuniary penalties should be imposed on the defendants. 30 October 2006 counsel for the plaintiffs and counsel for the defendants informed the court that the parties had reached an agreement on the
6 At the commencement of the trial of the preliminary issues on
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disposition of the preliminary issues and applied for orders to be made by
consent to give effect to the agreement.7 The plaintiffs tendered into evidence a statement of agreed facts.
The statement of facts, in essence, established each of the allegations pleaded in [27] - [50A] of the statement of claim excluding the conduct identified in [35], [38], [47A] and [50] and other facts necessary to found the relief agreed by the parties. The plaintiffs also tendered a number of other documents including answers to interrogatories.
8 After hearing submissions from counsel for each of the parties, the
court made declarations that each of the defendants had, by specified conduct, contravened s 38 of the BCII Act which is a civil penalty provision of that Act. The court further ordered the first defendant, second defendant and third defendant to pay pecuniary penalties of $90,000, $30,000 and $30,000 respectively to the plaintiffs. The court further made orders by way of injunction restraining the defendants from disrupting the performance of the work on the New Metro Rail City Project and from interfering with the due performance of certain specified contracts by specified means. The court ordered that all issues relating to the acts and conduct identified in [35], [38], [47A], [50] and [51] of the re-amended statement of claim be dealt with and tried together with the remaining issues in the action. The court ordered the defendants to pay the plaintiffs costs of the action up to the date of judgment relating to the issues which were ordered to be tried as preliminary issues including all reserved costs relating to the interim and interlocutory injunctions but excluding any of the plaintiffs' costs relating to the defendants acts and conduct identified in [35], [38], [47A], [50] and [51] of the re-amended statement of claim, to be taxed if not agreed. The court ordered that the taxing officer make a reasonable allowance for the fees of senior counsel.
Cost order proposed by plaintiffs
The plaintiffs apply for the following orders in relation to the costs of the preliminary issues:
1. A direction to the taxing officer that the plaintiff's bill be taxed in accordance with item 21 of the relevant Determination of the Legal Costs Committee and in so doing, the taxing officer not be bound to apply by analogy any other items in the relevant Determination of the Legal Costs Committee;
2. Alternatively, a direction to the taxing officer that the plaintiffs' costs be taxed as if all relevant scale items were increased by special order with the intent that none of the prescribed limits
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apply, or in the alternative, a direction to the taxing officer that the plaintiffs' costs be taxed without regard to the limits prescribed in the relevant scales in relation to the following items:
(a) item 1(a) - Writ of Summons; (b) item 1(b) - Statement of Claim; (c) item 6 - Requesting particulars of pleadings and giving particulars of pleadings; (d) item 7 - Discovery; (e) item 9 - Interrogatories; (f) item 10 - Chambers; (g) item 16 - Getting up the plaintiffs' case for trial; (h) item 19(a) - Fee on brief; (i) item 19(b) - Fee on brief for Senior counsel;
(j) item 19(c) - Counsel fee for the second and each successive day of hearing; (k) item 19(d) - Counsel fee for Senior Counsel for the second and each successive day of hearing; (l) item 19(e) - Solicitor attending trial; (m) item 19(f) - Clerk attending trial; and (n) item 24 - Settling and extracting orders 3. A direction that the taxing officer make a reasonable allowance for the fees of senior counsel without regard to limits in the relevant Determination of the Legal Costs Committee;
4. A direction that that the taxing officer make a reasonable allowance for research claims without regard to limits in the relevant Determination of the Legal Costs Committee;
5. A direction that that the taxing officer make a reasonable allowance for the preparation and attendance of Counsel and an instructing solicitor at the taxation of the plaintiffs' costs without regard to limits in the relevant Determination of the Legal Costs Committee;
6. The plaintiffs' costs be taxed and paid forthwith by the defendants jointly and severally.
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| Power to make a special costs order |
10 Subject to exceptions that are not presently relevant, the taxation of
bills of costs of legal practitioners as between party and party and any aspect of the remuneration of legal practitioners the subject of a legal costs determination in force under s 210 of the Act is regulated by that determination. However, s 215(2) of the Act makes provision for special costs order. Section 215(2) is in the following terms:
(2) Despite subsection (1), if a court or judicial officer is of the opinion that the amount of costs allowable in respect of a matter under a legal costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter, the court or officer may do all or any of the following -
(a) order the payment of costs above those fixed by the determination; (b) fix higher limits of costs than those fixed in the determination; (c) remove limits on costs fixed in the determination; (d) make any order or give any direction for the purposes of enabling costs above those in the determination to be ordered or taxed.
11 Section 215(2) of the Act empowers the court to do all or any of the
things specified in (a) - (d) if it is of the opinion that the amount of costs allowable in respect of a matter under a legal costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter. The word 'unusual' qualifies 'difficulty' but not 'complexity': SDS Corporation Ltd v Pasdonnay Pty Ltd [2004] WASC 26 (S2) [106] (Roberts-Smith J); Green v Wilden Pty Ltd [2005] WASC 83 (S) [182] (Hasluck J); Hodgkinson v Doepel & Associates Architects Pty Ltd [2006] WASC 237 (S) [33] (Simmonds J). Thus, the court may make an order under s 215(2) of the Act, if it is of the opinion that the amount of costs allowable in respect of a matter under a legal costs determination is inadequate because of:
(1) the unusual difficulty; (2) the complexity; or (3) the importance of the matter.
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| Unusual difficulty |
12 I will first consider whether the case was one of unusual difficulty. I
find that it was. The matter concerned contraventions of the BCII Act. The BCII Act was enacted in 2005 and there was little authority to guide the parties in relation to the construction and application of the provisions of the BCII Act. The agreed facts established that the plaintiffs' employees engaged in unlawful industrial action in contravention of s 38 of the BCII Act. There were issues concerning the interpretation and application of various sections of the BCII Act, accessorial liability and the transitional provisions.
13 In considering and determining this application I am entitled to, and
required to, draw on my experience, to act on impressions gained during the litigation, and to take into account the issues which have been involved: see Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95 [43] (Pullin J). Having regard to the issues raised in the matter and my impressions gained during the litigation I find that the matter was one of unusual difficulty.
Complexity
14 I find that the matter was complex. It was factually complex,
involving as it did multiple actions by a large number of people over a 12 month period. The plaintiffs faced a significant challenge in identifying, marshalling and presenting the evidence. The matter was also legally complex. It involved considering, interpreting and applying numerous provisions of relatively new and untested legislation.
Importance
15 I find that the matter was one of importance. The plaintiffs are large
construction contractors. The first defendant is the largest trade union representing construction workers in Australia. The second defendant is its State counterpart and the third defendant was an employed official of each union. The industrial action which gave rise to the action occurred in the course of one of the State's largest infrastructure projects. Work on the project was interrupted by the actions of the defendants which constituted contraventions of the BCII Act. The Australian Building and Construction Commissioner intervened in the proceedings. The orders made on 3 November 2006 include declarations that the first defendant contravened s 38 of the BCII Act on 18 specified occasions, that the second defendant did so on five specified occasions and the third
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defendant did so on 16 specified occasions. There were also orders granting injunctions restraining the defendants from disrupting the performance of work on the project. Penalties of $90,000, $30,000 and $30,000 were imposed on each of the defendants respectively. Damages are yet to be assessed. The relief granted is a reflection of the importance of the matter.
Inadequacy of scale costs
16 The court may only make an order under s 215(2) of the Act if it is of
the opinion that the amount of costs allowable in respect of the matter
under a legal costs determination is inadequate.17 The plaintiffs did not press for an order in terms of [1] of their
application, that is a direction to the taxing officer that the plaintiffs' bill be taxed in accordance with item 21 of the relevant determination of the Legal Costs Committee and in so doing, the taxing officer not be bound to apply by analogy any other items in the relevant determination of the Legal Costs Committee.
18 The plaintiffs seek a direction that their costs be taxed as if all
relevant scale items were increased by special order with the intent that none of the prescribed limits apply or alternatively a direction that their costs be taxed without regard to the limits prescribed at the relevant scales in relation to the items specified in the order sought. Both parties accepted that, if a special costs order should be made, then the latter form is the appropriate form of order. Accordingly, I will consider, in relation to each item, whether the amount of costs allowable in respect of that item under the relevant legal costs determination is inadequate and is inadequate because of the unusual difficulty, complexity or importance of the matter.
19 The defendants accepted that, in relation to the items in respect of
which the plaintiffs seek a special order, the amount allowable under the relevant legal costs determination is inadequate for the work that necessarily was done, except in relation to items specifically identified by the defendants. I will consider those items separately but before doing so I will address whether the relevant scale limits should be removed or increased.
Removing limits or fixing higher limits
20 The defendants submitted that the court should not make an order
that the plaintiffs' costs be taxed without regard to the limits prescribed in
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the legal costs determination in relation to the relevant items. The defendants submitted that the court should lift the limit prescribed in the legal costs determination in relation to the relevant items and set a new and appropriate limit in relation to each item. I do not accept that submission for the following reasons.
21 Section 215(2) of the Act empowers the court to make orders,
amongst other things, lifting the limits on costs allowable under items in the legal costs determination. However, determining the amount that should be allowed as reasonable charges for work necessarily or reasonably done is a matter for the taxing officer, not for the judge. In Jewel Walk Pty Ltd v Kondinin Group Inc [2001] WASC 197 Roberts-Smith J said:
It is apposite at this point to say that I accept Mr Garnsworthy's submission that the effect of my making the special costs order sought - should I do so - would not impede the discretion of the taxing officer. If made, the order would merely allow that officer to consider the charges made beyond the scale limit. It would remain entirely for the exercise of the taxing officer's discretion to determine whether or not they should be allowed as being reasonable charges for work necessarily or reasonably done [31].
22 To fix a higher limit I would have to engage in some process akin to
a preliminary taxation of the bill of costs. It is not appropriate that I do that. If I remove the limits then it is within the discretion of the taxing officer what amount should be allowed in relation to each item. The taxing officer might decide that he or she should allow no more than the amount allowed for by the scale notwithstanding that the court has made an order empowering the taxing officer to make an allowance greater than the amount set out in the scale. By removing the limits the court does not limit the discretion of the taxing officer. Rather, the court allows the taxing officer to allow such costs in relation to each item as the taxing officer determines to be necessary or proper. In some cases it will be appropriate for the judge to determine and fix a higher limit but in this case it is not appropriate to fix a higher limit because to do that the court would have to engage in either a taxation or some sort of preliminary taxation.
The legal costs determination
23 The Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 (WA) (the 2006 Costs Determination) is set out in a schedule to the report of the Legal Costs Committee published in Western Australia, Government Gazette, Gazette No 105 (26 June 2006) and entitled Legal Practitioners (Supreme Court) (Contentious Business)
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Report and Determination 2006 (the Report). In s 4 of the Report the Committee stated that it continued to adopt the hourly and daily rates charged by practitioners as the basis for the rates used in the 2006 Costs Determination. Clause 8 of the 2006 Costs Determination states that the hourly and daily rates set out in the Table to the clause are the maximum hourly and daily rates, inclusive of GST, which the Legal Costs Committee determines shall be used to calculate the dollar amounts in the scale of costs set out in the Table to cl 9 and each item in the scale of costs specifies a dollar amount with reference to the fee earner. The Table includes the following maximum allowable hourly and daily rates:
Senior practitioner (sp) - hourly rate $363 Junior practitioner (jp) -hourly rate $253 Counsel (c) -hourly rate $286
-daily rate $3,102
Senior counsel (sc) -hourly rate $506
-daily rate $4,730
24 The Legal Practitioners (Supreme Court) (Contentious Business) Determination 2004 (WA) (the 2004 Costs Determination) is in similar terms but the hourly and daily rates are lower.
25 The plaintiffs have entered into a costs agreement with their
solicitors. The hourly rates in the agreement are higher than in the scale. The plaintiffs have not sought an order that the costs in relation to any item be taxed at an hourly rate in excess of the hourly rates in the scale. In Flotilla Nominees Pullin J said:
… The whole point of the existing scale is that the rates are struck by reference to what is being charged within the profession. It is true that the hourly rates can only be an average or mean of the upper rates determined in the survey, and there will be some cases where the unusual complexity or importance of the case warrants the special expertise of the practitioner involved and warrants an increase in the hourly rate. In some cases not involving unusual complexity or importance, the higher rates paid will not be recoverable. A party is always entitled to the luxury of retaining the highest paid practitioners in the conduct of their case, but they cannot always expect to recover these costs from the other party [22].
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26 In this case, the plaintiffs have submitted that the amount of costs
allowable in respect of the relevant items under the relevant costs determinations is inadequate in that the number of hours work reasonably and necessarily done to carry out those matters exceeds the number of hours by which the maximum amount allowed under the scale item is calculated. The plaintiffs have not established, and have not sought to establish, that the hourly rates on which the scale items are calculated are inadequate and should be raised.
Allowable amounts conceded to be inadequate
27 The defendants accepted that the amounts allowable under the
relevant costs determination are inadequate for the work that necessarily was done by the plaintiffs in relation to the following items: writ of summons, statement of claim, requesting and giving particulars of pleadings, discovery and getting up.
28 The plaintiffs sought to demonstrate the inadequacy of the amount
allowable under the relevant items of the legal costs determination by
providing a draft bill of costs.29 I have considered the plaintiffs' draft bill of costs and the matters
relating to each of those items deposed to by Andrew McGregor Kennedy, a solicitor who had the day-to-day conduct of the action for the plaintiffs. I find that in respect of each of the items writ of summons, statement of claim, requesting and giving particulars of pleadings, discovery and getting up the amount of costs allowable under the relevant costs determinations is inadequate and is inadequate because of the unusual difficulty, the complexity and the importance of the matter.
Interrogatories
30 The plaintiffs' draft bill of costs claims $8,329.28 for 21.12 hours
drawing and settling interrogatories. The amount allowed under the scale item is $1,705, being five hours at the rate of a senior practitioner. The plaintiffs claim $10,184.46 for 32.67 hours drawing and settling answers to interrogatories. The amount allowable under the 2006 Costs Determination and the 2004 Costs Determination is $3,630 and $3,410 respectively. In each case, the item allows for 10 hours work by a senior practitioner.
31 The defendants submit that the interrogatories delivered by the
plaintiffs were brief and formulaic and say that there is nothing about the
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work apparently performed which indicates, on its face, why a special
costs order is justified.32 Counsel for the plaintiffs conceded that neither the interrogatories
delivered by the plaintiffs for the examination of the defendants nor the plaintiffs' answers to interrogatories delivered by the defendants were very extensive but submitted that a lot of care and attention had been given to them. Counsel conceded that 'one might argue that the scale is just about sufficient' (ts 578).
33 I have examined the interrogatories delivered by the plaintiffs for the
examination of the defendants and the plaintiffs' answers to interrogatories delivered by the defendants. I am not persuaded that the allowances in the costs determinations are inadequate having regard to the tasks that were undertaken and the work reflected in the documents drafted and settled.
Chambers
34 The plaintiffs' draft bill of costs claims costs in relation to
14 separate proceedings or applications in chambers. The amounts claimed in respect of each of the applications, except for the plaintiffs' chamber summonses of 13 February 2006 and 24 February 2006 and the defendants' chamber summons of 18 September 2006, are for amounts less than the amount allowed under the relevant costs determination. Accordingly, it is only necessary to consider those three applications.
35 The plaintiffs' summons of 13 February 2006 applied for an
interlocutory injunction. The application was supported by four affidavits, two of which were extensive. There was a hearing on 16 February and again on 16 March 2006. I find that the amount of work necessarily and reasonably done was such that the amount allowable under the scale is inadequate and is inadequate by reason of the difficulty and complexity and importance of the matter.
36 The plaintiffs' chamber summons of 24 February 2006 applied for an
interim injunction. The application was supported by an affidavit. There was a hearing on 24 February 2006 and a further hearing of less than an hour on 20 April 2006. The scale allows $8,679, being two days preparation and one day of hearing at the rate for counsel. There is an additional allowance for attending on the reserve judgment in chambers. The amount allowable for the plaintiffs' chamber summons for interim injunction heard 24 February 2006 is inadequate. Counsel for the defendant did not argue to the contrary.
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37 The defendants' chamber summons of 18 September 2006 sought a
stay of proceedings. There was a hearing before me which lasted approximately 2.5 hours. The scale allowance is $9,306 based upon two days preparation and one day hearing at the rate for counsel. I am not persuaded that the amount allowable under the scale is inadequate.
Fee on brief
38 The orders initially sought by the plaintiffs included special costs
orders for fee on brief for junior counsel and fee on brief for senior counsel. At the hearing of the application counsel for the plaintiffs did not press these items. It was common ground that [47] of the orders of 3 November 2006 that 'the taxing officer make a reasonable allowance for the fees of senior counsel' made a special costs order in relation to the fee on brief for senior counsel unnecessary. Counsel for the plaintiffs did not press for a special costs order in relation to the fee on brief for junior counsel 'because we don't claim a junior counsel fee on brief' (ts 583).
Counsel fee for second and successive days
39 The plaintiffs initially claimed a special costs order in relation to
counsel fee for the second and each successive day of the hearing and for a counsel fee for senior counsel for the second and each successive day on hearing. On the hearing of the application counsel for the plaintiffs did not press for a special costs order in relation to either item. Again, it was common ground that the order made on 3 November 2006 that 'the taxing officer make a reasonable allowance for the fees of senior counsel' made any special costs order in relation to the fees of senior counsel unnecessary. The plaintiff did not press for any special costs order in relation to counsel fees for junior counsel.
Solicitor, clerk attending trial
40 Counsel for the plaintiffs did not press for special costs orders in
relation to these items because the amount allowable under the scale items
is adequate.
Settling and extracting orders
41 Counsel for the plaintiffs did not press for a special order in relation
to settling and extracting orders because counsel accepted that the amount
allowable under the scale is adequate.
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| Research |
42 The plaintiffs seek a direction that the taxing officer make a
reasonable allowance for research without regard to limits in the relevant costs determination. In the course of his submissions counsel for the plaintiffs did not claim costs for research as an item separate from getting up. Counsel for the plaintiffs submitted that the plaintiffs press for a direction to that effect because there is a debate amongst practitioners whether research is or may be work that may be compensated for under the item getting up.
43 Counsel for the defendants did not concede that any specific order
should be made about research but submitted that if an order was to be made then it should not be one that, in effect, directs the taxing officer to make a reasonable allowance for research but rather should be one that permits the taxing officer to make an allowance for research as part of getting up to the extent that the taxing officer considers it to be reasonable and proper.
44 Research is capable of being work done as part of getting up the case
for trial. In this case, it was necessary for the plaintiffs' solicitors to identify what the plaintiffs would have to prove to establish a contravention of s 38 of the BCII Act. That involves a consideration of the terms of the legislation and its interpretation. The legislation is relatively new and a practitioner should not be expected to know the terms of the legislation, and what must be proved to establish a contravention of s 38 of the BCII Act, without undertaking some research. The plaintiffs are entitled to claim the costs of such research. It is for the taxing officer to determine what research was undertaken and the amount that should reasonably be allowed for such work. Such work is to form part of the getting up case for trial. There should be an order to the effect that in determining the amount allowed to the plaintiffs for getting up the taxing officer should make a reasonable allowance for research undertaken by the plaintiffs to the extent that the taxing officer considers such research was reasonably necessary for the plaintiffs to conduct the action.
Taxation of costs
45 The plaintiffs seek a direction that the taxing officer make a
reasonable allowance for the preparation and attendance of counsel and an instructing solicitor at the taxation of the plaintiff's costs without regard to limits in the relevant determination of the Legal Costs Committee.
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46 The scale item for taxation includes drawing bill of costs, copies and
service and taxation of costs, including the time spent in preparation for the taxation. The amounts allowable are 'such amounts as are reasonable in the circumstances'.
47 In the course of argument counsel for the plaintiffs submitted that the
plaintiffs seek an order that it should be open to the taxing officer to make an order or to make an allowance for counsel and instructing solicitor if the taxing officer considers that was necessary and proper at the taxation. There should be an order to that effect.
Tax to be paid forthwith
48 In their application the plaintiffs sought an order that their costs be
taxed and paid forthwith by the defendants jointly and severally. That
was not pressed at the hearing.
Conclusion
49 I am of the opinion that the amount of costs allowable under the
relevant legal costs determination in respect of certain items is inadequate because of the unusual difficulty, complexity and importance of the matter. Those items are:
a. item 1(a) - writ of summons; b. item 1(b) - statement of claim; c. item 6 - requesting particulars of pleadings and giving particulars of pleadings; d. item 7 - discovery; e. item 10 - chambers in relation to the plaintiffs' application for interlocutory injunction of 13 February 2006 and the plaintiffs' chamber summons for interim injunction of 24 February 2006; f. item 16 - getting up case for trial. 50 Having regard to all of the circumstances it is an appropriate exercise
of my discretion to remove the limits on the costs fixed in the
determination in relation to each of those items.51 It is also appropriate to make further orders as follows. First, in
determining the amount to be allowed for getting up case for trial, the taxing officer should make a reasonable allowance for research undertaken by the plaintiffs' solicitors to the extent that the research was reasonably necessary for the proper conduct of the action. There should
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be a further direction that the taxing officer may make an allowance for the preparation and attendance of counsel and an instructing solicitor at the taxation of the plaintiffs' costs to the extent that the taxing officer considers to be reasonably necessary.
52 The amount allowable in respect of each item will be a matter for the
taxing officer. The special costs orders that I make empower, but do not require, the taxing officer to allow costs in excess of the amounts fixed in the legal costs determination in respect of each item in the scale.
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