Yes I agree. What was the judge said " no appetite in neither side" basically both sides are to blame for the talks failing down.
Yes I agree again but it would of cost sisu more than 29k to pay their 7 lawyers and that's what annoys me it's just clear bullying tactics and a horrible way to do business.
Sisu didn't want to go to court as much as Higgs. They must of thought throwing in a 290k counterclaim was enough to scare off Higgs straight away but Higgs stuck to their guns and went to court brought about by sisu.
So what did actually happen when the trial ended and the question for cost came up:
MR JUSTICE LEGGATT: You take instructions and I will sit here unless anybody asks me otherwise. (Pause)
MR THOMPSON: My instructions are simple, given that there's obviously been a judgment in both directions, that there could be no order as to costs. That would be an order that we would be content with. I don't know whether Mr Brennan has some other suggestion.
MR BRENNAN: My Lord, I wish life was so simple, but the test isn't simplicity; the test is justice.
This was an ordinary County Court claim, which shouldn't have been brought on the basis that it was brought and could and should have been defended in the counterclaim on the narrow basis which has ultimately succeeded. In the event, SISU sought to defend the case inter alia on another basis, which was predicated on stinging criticisms of the trustees' conduct, which were unwarranted.
As a matter of principle I say that the appropriate order as to costs is that we should have to pay SISU the proper and reasonable costs that it would have incurred had it defended the case on a proper basis without making the unwarranted criticisms and, in those circumstances, I would invite the court to grant SISU their costs of the claim, less a deduction, which, as best you can, you think meets the justice of that case, and order SISU to pay the costs of the counterclaim.
Unfortunately, it's very difficult to unravel it and the matter will have to be put off to a costs officer, but the costs officer, will need some guidance --
MR JUSTICE LEGGATT: You might end up worse off than on Mr Thompson's proposal. I know that's not the test of what I should do, but ...
MR BRENNAN: My instructing solicitor is rather closer to the costs than I am, so perhaps I can take --
MR JUSTICE LEGGATT: Yes. It's not obvious what the costs are of the counterclaim and claim except, up to the time there's a counterclaim, of course, there weren't any costs of that.
MR BRENNAN: Yes, I follow that.
MR JUSTICE LEGGATT: Once there was a counterclaim...
MR BRENNAN: The claim rather took second place thereafter.
MR JUSTICE LEGGATT: They were both sort of entangled with each other to some extent. The claim has obviously persisted for another day at the other end as well.
You have two days at the other end.
MR BRENNAN: As I say, my instructing solicitor is closer to costs. (Pause)
My Lord, these are not insignificant sums. I know it's 4.40, but could I ask for five minutes?
MR JUSTICE LEGGATT: Of course you may. Call me back in when you're ready.
(4.41 pm)
(A short break)
(4.47 pm)
MR BRENNAN: My Lord, I'm very grateful for the extra time. Mr Thompson's suggestion is a sensible one and we wish to agree it.
MR JUSTICE LEGGATT: Well, I think it is the right conclusion. I would have come to it anyway. These days, the usual approach is not, as it once was, to treat the counterclaim and the claim independently; it's to look overall at who the winner is and it seems to me that this is a case which has effectively ended as a nil-all draw, if I'm allowed to use the comparison.
MR BRENNAN: I think minus one each probably more accurately sums it up.
MR JUSTICE LEGGATT: Well, that may be the case. Thank you.
