High Court still partially approves application to vary budget
A son who wanted to get out of repaying money to his parents tested every aspect of their claim against him but did not seek to “oppress” them by driving up costs unnecessarily, the High Court has ruled.
Mr Justice Dexter Dias partly approved the parents’ application to vary their costs budget made after the trial had begun but rejected elements that were made too late.
His decision in Barry & Anor v Barry [2025] EWHC 819 (KB) followed what the judge described as an “extended and acrimoniously contested trial in a contract dispute between two parents and their son”.
He held last year that the defendant son owed his parents £643,000 plus interest that they had lent him for property transactions.
The claimants’ costs budget was approved in July 2022. On 3 November 2023, after eight days of an 11-day trial spread out over several months, they applied to vary five phases.
They also made a parallel application under paragraph 13 of practice direction 3D, which under the heading ‘Oppressive behaviour’ provides: “Any party may apply to the court if it considers that another party is behaving oppressively in seeking to cause the applicant to spend money disproportionately on costs and the court will grant such relief as may be appropriate.”
The first item the claimants sought to increase was disclosure, but as it had taken place in October 2022, Dias J said “it is hard to conceive how the claimant can be said to have acted ‘promptly’ as required under the rule [3.15A] when making an application over a year later”.
As to oppressive behaviour, counsel agreed that there did not appear to be any relevant guidance in the authorities about its definition.
Dias J identified the critical words in paragraph 13 as “in seeking to cause”, which he considered meant “intentional causation”, rather than the ‘but for’ type of causation.
He continued: “This is an important conclusion for this application. This was a bitterly contested family dispute, as my trial judgment makes clear. The defendant was unquestionably intent on testing his parents’ case to the extent permissible. The approach at trial was to leave no stone unturned and take, if not every point, then almost all of them.
“It is in this light and context that one must view the correspondence exchanges, the disclosure requests and the litigation strategies.
“Although my judgment fell very heavily against Denis Barry and made serious criticisms of his evidence, I never once sensed that he was trying to run up costs needlessly or deliberately to oppress or coerce his parents. What he wanted was not to pay back the money.
“I agree that the timing of the letter to the claimants on Christmas Eve was regrettable. The contents of the correspondence on both sides was firm, strident and at times became heated. However, I cannot find oppressive behaviour on the interpretation of the test as I hold it to be. I find no causative intent.”
He held similarly about varying the witness statements phase. They were exchanged on 27 March 2023, with the second round taking place on 7 July. While the delay in applying for variation was “less pronounced” than for disclosure, the claimants still provided “no adequate reason” to justify waiting until November 2023 to make the application. Dias J rejected the existence of oppressive conduct too.
The application was prompt when it came to the trial preparation phase, the claimants having received the defendant’s proposals for the trial bundles very close to the deadline. It was “a qualifying significant development, being one not reasonably anticipated”.
But while there was “intense last-minute work to ensure the case was trial-ready, I am unpersuaded that the scope variation is reasonably justified to the extent sought”.
Dias J went on: “I accept the defendant’s submission that there was the overuse of ‘partner time’ for some of the more routine aspects of the work entailed. I cannot think that 60 hours of partner time was the right balance and more of the work could have been delegated to more junior members under supervision.”
He approved an upward variation by £18,000, rather than the £29,663 sought.
The final heads were for trial length, following the defendant’s late amended defence, and dealing with the defendant’s application to vary his defence. The defendant did not object to these but argued for a variation of £11,000, rather than the £37,500 sought by the claimants, more than doubling the budget costs.
Dias J again found too high a proportion of the solicitors’ costs were incurred by the partner with conduct. “While the developments were significant, a sense of balance and proportion must be maintained.” He approved an extra £27,500.
He noted that he did not need to consider oppressive behaviour for the heads where the claimants succeeded, but had he had to do so, he would not have found it existed.
David Sawtell (instructed by CDS Mayfair) for the claimants. Roger Laville (instructed by Direct Access) for the defendant.