Common Defence Costs | No Division Required Between Co-Defendants Where One Party Foots The Bill

ROLLERTEAM LTD V SIDDIQI [2025] EWHC 612 (Ch)

Rollerteam Ltd v Siddiqi [2025] EWHC 612 (Ch) was an appeal from a decision of Costs Judge Rowley striking out a bill of costs for non-compliance with an unless order. The underlying proceedings concerned a family business dispute in which Warby J dismissed most of Siddiqi’s claims for harassment, conspiracy and reputation injury, and ordered him to pay all five defendants’ costs. Only the Fourth Defendant (Rollerteam) actually discharged the joint retainer liability on behalf of itself and its co-defendants. Rollerteam served a bill claiming 100% of common costs with only a 10% reduction for harassment work done exclusively for another defendant. Costs Judge Rowley struck out the bill for failing to apportion costs between the five defendants as required by his unless order. On appeal, Rajah J held that Rollerteam had substantially complied by providing clear allocation information, that only the party who actually paid the bills could recover “the defendants’ costs” in its own name, and that the judge’s focus on “realistic” recovery was misplaced.

In my judgment the unless order was complied with by the service of D4's revised bill of costs which: a) identified that all of the work had been done jointly for the benefit of D4 and other Defendant; and b) stated that D4 claimed 100% of the work was for D4's benefit except for a specified reduction of some costs by 10% in respect of the issue of harassment which was for the benefit of the First Defendant only.... Approaching the matter from principle, it cannot be the correct approach in a case such as this that only costs which are incurred solely for the benefit of D4 can be recovered in full. It seems to have been assumed by the Costs Judge (as is now alleged) that this was a joint retainer of RPC such that each Defendant was liable for all of the costs billed by RPC.

Citations

Marcan Shipping (London) Limited v Kefalas and Candida Corporation [2007] EWCA Civ 463 A sanction for non-compliance with an unless order takes effect automatically upon breach without further order, and relief from sanctions must be sought separately under CPR 3.9. Pan Petroleum AJE Ltd v Yinka Folawiyo Petroleum Co Ltd & Ors [2017] EWCA Civ 1525 The meaning of an unless order must be interpreted objectively by its ordinary language in context, and compliance is determined accordingly. Poule Securities Ltd v Howe & Ors [2021] EWCA Civ 1373 Unless orders must be drafted with clarity to ensure the recipient understands precisely what must be done to avoid the stipulated consequences. Raja v Van Hoogstratten [2004] EWCA Civ 968 Where an unless order lacks sufficient clarity, it will not provide a proper basis for concluding that a breach has occurred. Haynes v Department for Business, Innovation and Skills [2014] EWHC 643 (QB) Common costs not specific to individual parties may be recovered in full by one defendant if those costs would have been incurred regardless of the number of parties involved.

FERNANDEZ V FERNANDEZ [2025] EWHC 2373 (Ch)

Section 51 Costs Jurisdiction Injunction Without Claim Form | Gotti

Being 'Annoying and Difficult' Not Sufficiently 'Out Of The Norm' For Indemnity Costs In Failed Liquidator Challenge

STOCKLER AND ANOTHER V THE CORPORATION OF THE HALL OF ARTS AND SCIENCES [2025] EWHC 2262 (SCCO)

Key Points

A defendant who has paid solicitors’ bills under a joint retainer may recover common costs in full where those costs would have been reasonably incurred for that defendant’s own defence, irrespective of how many other parties also benefited from the work done. [19]
Common costs that are not specific or attributable solely to another party can remain fully recoverable by a single defendant, provided they do not reflect an increase due to other defendants’ participation. [19]
Where multiple defendants benefit from a costs order but only one defendant has actually discharged the joint retainer liability, that defendant alone has standing to commence detailed assessment proceedings and may recover the costs paid without requiring participation from non-paying co-defendants. [19]
The inability of non-paying co-defendants to bring their own assessment proceedings (having no liability to the solicitors) does not diminish the liable defendant’s right to recover the full amount reasonably paid on behalf of the group. [19]
An unless order requiring identification and apportionment of joint work to a specific party does not entitle the court to assess the realism of that apportionment at the compliance stage; it is sufficient that the party states the claimed proportions, even if disputed. [14–17]

"That recognises what I perceive to be an underlying principle that (subject to the operation of the indemnity principle) any common costs which would have been reasonably incurred by D4 in any event to defend itself from the Claimant's claims are recoverable in full by D4. As Haynes made clear, specific common costs capable of identification and division should be subjected to specific investigation as to what if any division is appropriate to reflect that principle... The real question is whether any of the common costs of defending the action by the Defendants have been increased by issues relating to the Defendants other than D4 or are solely attributable to those other Defendants."

Key Findings In The Case

The Fourth Defendant complied with the unless order by serving a revised bill of costs that expressly stated the proportion of work claimed on its behalf—even where that proportion was 100 % for most items—thereby satisfying the order’s requirement to indicate apportionment in writing. [14–16]
The Costs Judge erred in treating the absence of a line-by-line, entry-level breakdown or any “realistic” apportionment as non-compliance, because the order did not mandate an objectively vetted percentage or preclude full-value claims at the compliance stage. [14, 17]
Although the bill was phrased as covering all five defendants pursuant to Warby J’s costs order in their favour, only the Fourth Defendant had actually discharged the joint-retainer liability (a total of £75,228.43) and thus alone had properly commenced assessment proceedings; the court accepted that common costs incurred under a shared retainer are recoverable by the paying party. [15, 19]
The Costs Judge’s view that claiming 100 % for work beneficial to multiple defendants was “unrealistic” was flawed: common costs that a defendant would have incurred even if acting alone remain, in principle, fully recoverable by the paying party under the indemnity principle. [18–19]
The reliance on an alleged lack of realism in the claimed proportions to trigger the unless-order sanction was misplaced, as nothing in the order required the court to vet or pre-approve the percentages before the detailed assessment stage. [17–18]

“...in the example of the conference with counsel envisaged in Haynes [26] concerning the liability of all ten defendants, if the same conference and the same advice would have been required if there was one, five or ten defendants then there should be no division of that fee. Costs incurred to achieve the Defendants' joint objective of striking out the claims against D2-D5, resisting an injunction, resisting disclosure and resisting amendment are likely to be largely costs which would have been incurred whether there was one Defendant or five Defendants. In these circumstances, the judge's reasoning as to why D4's bill of costs was unrealistic was, in any event, flawed.”

The High Court’s decision in Rollerteam Ltd v Siddiqi addresses a fundamental but frequently misunderstood aspect of costs recovery: where multiple defendants benefit from a costs order but only one party has discharged the solicitors’ bills, who has the right to recover those costs?

Background

The underlying proceedings arose from a protracted family dispute concerning the Sherlock Holmes Museum in Baker Street, London. On 10 January 2019, Tariq Siddiqi commenced proceedings against five defendants claiming £4,149,911.84 in damages for alleged blackmail, harassment and libel. The defendants were represented by RPC under a joint retainer arrangement.

On 24 May 2019, following applications for strike out and summary judgment, Warby J made comprehensive orders in the defendants’ favour. He dismissed Siddiqi’s applications, granted summary judgment for the Second to Fifth Defendants, and struck out the claim save for the harassment allegations against the First Defendant. Crucially, he ordered Siddiqi to pay all five defendants’ costs of four separate applications, to be assessed on the standard basis if not agreed, with a payment on account of £39,938.52.

The Critical Payment Dynamic

What emerged during the subsequent detailed assessment proceedings was that whilst all five defendants had benefited from Warby J’s costs order, only the Fourth Defendant (Rollerteam) had actually paid RPC’s bills. The other defendants, despite being named beneficiaries of the costs order, had discharged no liability to the solicitors and therefore had no costs to recover.

This arrangement is more common in practice than many appreciate. In family business disputes, partnership litigation, or group actions, it frequently occurs that one party agrees to bear the legal costs on behalf of all co-defendants, whether for reasons of financial capacity, strategic control, or simple necessity when other parties become uncooperative or insolvent.

The Detailed Assessment

Following directions from Costs Judge Rowley in December 2022, the defendants were required to commence detailed assessment proceedings by 15 February 2023. Only Rollerteam served a Notice of Commencement, claiming costs of £82,432.78. The other defendants could not do so – having paid nothing to RPC, they had no bills to serve.

On 27 April 2023, the Costs Judge made an unless order requiring Rollerteam to serve a revised bill that would indicate, where work was done jointly for multiple defendants, what proportion was claimed on behalf of Rollerteam specifically.

Rollerteam duly served a revised bill totalling £75,228.43. However, rather than attempting to apportion costs between the five defendants, they argued in detailed Assessment Notes that since RPC had represented all defendants under a joint retainer, and the costs orders were in favour of all defendants, there was no realistic basis for apportionment. They claimed 100% of the common costs, with only a 10% reduction for work done exclusively for the First Defendant on the harassment claim.

The bill stated explicitly that “100% of the costs incurred in relation to the injunction application, the disclosure application, the strike-out application and the amendment application were incurred for the benefit of the fourth defendant, just as 100% of those costs were incurred for the benefit of the first, second, third and fifth defendants.“

The Costs Judge’s Decision

On 15 August 2023, Siddiqi applied to strike out Rollerteam’s revised bill for non-compliance with the unless order. Following a hearing on 17 November 2023, Costs Judge Rowley granted the application, finding material non-compliance and striking out the bill entirely, assessing Rollerteam’s recoverable costs at zero.

The Costs Judge held that since only Rollerteam was seeking costs recovery, any work done for the defendants generally needed to be “divided appropriately so that only the costs for which the fourth defendant is liable are sought from the claimant.” He concluded that the bill failed to reflect “realistic sums that may be recoverable for one of five defendants” and that the costs draftsman had wrongly attempted to circumvent the apportionment requirement.

The Appeal

Rollerteam appealed to the High Court.

On 17 March 2025, Mr Justice Rajah allowed the appeal. The Judge held that Rollerteam had complied with the unless order by clearly identifying that all work was done jointly for multiple defendants and stating that it claimed 100% of that work for its own benefit (save for the specified 10% reduction).

More significantly, the Judge clarified the fundamental principle governing recovery of common costs in joint retainer cases. The correct approach is not to assume automatic apportionment based on the number of defendants, but to ask whether the common costs would have been reasonably incurred by the paying defendant in any event to defend itself from the claimant’s allegations.

Legal Principles Established

The judgment establishes several important principles:

Where defendants are represented under a joint retainer but only one party discharges the solicitors’ bills, that party is entitled to commence detailed assessment proceedings in its own name and recover the costs it has paid, without requiring participation from the non-paying co-defendants.
Common costs need not be divided between multiple beneficiaries of a costs order where those costs would have been necessarily incurred for the paying party’s own defence regardless of the number of co-defendants involved.
Following the principle established in Haynes v Department for Business, Innovation and Skills, costs such as court fees, conferences with counsel, and legal research that would have been incurred whether defending one client or multiple clients should be recoverable in full by the paying party.
Courts should interpret unless orders pragmatically, focusing on whether the required information has been provided rather than whether the claiming party’s approach appears “realistic” to the judge.

Practical Implications

For practitioners, the decision provides important guidance:

When preparing bills in multi-defendant cases, focus on explaining why common costs were necessary for the client’s own defence rather than attempting artificial mathematical apportionment between co-defendants.
Where representing the paying defendant in a joint retainer situation, emphasise that the question is not how many parties benefited from the work, but whether the costs would have been incurred in any event for that client’s own protection.
Ensure bills respond directly to the specific requirements of case management orders, but do not feel compelled to accept assumptions about apportionment that may not reflect legal principle.

Conclusion

Rollerteam Ltd v Siddiqi clarifies an area where costs practice has often been unnecessarily complex and provides welcome guidance for the many cases where multiple defendants share representation but only one party bears the financial burden. The decision confirms that the party who actually discharges solicitors’ bills under a joint retainer is entitled to recover those costs without artificial reduction, provided they were reasonably necessary for that party’s own defence.

The judgment serves as a reminder that costs recovery should be governed by practical realities and legal principles rather than superficial mathematical divisions that bear no relation to the work actually required or the liabilities actually incurred.

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