Sutton v Sutton

The case of Sutton v Sutton involves a dispute under the Trustee Act 1956, where Alan Michael Cornelis Sutton and Mark William Sutton, the plaintiffs, discontinued their legal action against Michael Howarth Sutton and O’Sheas Trustees (Sutton) Limited, the defendants, just ten days before the scheduled trial. The plaintiffs were legally-aided, and the defendants sought costs pursuant to the Legal Services Act 2011, arguing that the plaintiffs should be liable for the costs of the proceedings had they not been legally-aided. Specifically, the defendants requested that the plaintiffs pay scale costs on a 2B basis, uplifted by 50 percent, or at the very least, costs on a 2B basis without further uplift. The plaintiffs opposed these claims, arguing that the discontinuance was not due to hopelessness or unreasonable conduct, and that the calculation of the costs was incorrect.

The court was required to determine whether costs would have been ordered against the plaintiffs if they were not legally-aided and, if so, the appropriate quantum of those costs. The plaintiffs argued that the discontinuance was due to practical issues and their ill health, and they contested the defendants' calculation of the costs. The court considered the submissions of both parties and concluded that costs would have been appropriate on the discontinuance. However, the court found insufficient information to determine if increased costs would have been payable, and instead, it concluded that costs on a 2B basis without further uplift would have been appropriate. The court further determined that the total costs payable on a 2B basis should be $18,642, as the preparation costs should include the preparation of written submissions.

The High Court ordered that the plaintiffs would have been liable to pay the defendants $18,642 in costs, together with disbursements of $280, had the plaintiffs not been legally-aided. The court also noted that the calculation of the total costs, on a 2B basis, as stated in the defendants' memorandum, was incorrect. The correct total of the defendants' sought-after 2B costs is $22,227, which, when subtracted from the defendants' separate costs for the preparation of written submissions ($3,585), gives the total of $18,642.