The costs ordered to be paid to Agents’ Mutual by Gascoigne Halman were yesterday described by the judge as a “safe minimum”. Meanwhile, Gascoigne Halman must continue to list on OnTheMarket and pay its listing fees, as well as comply with the ‘one other portal’ rule.
Gascoigne Halman must pay the sum, £1.24m, within a fortnight. In addition, the funds that Agents’ Mutual had to pay into court last year in the event of its losing the case, are being repaid.
The sum that Connells brand Gascoigne Halman must pay, £1,243,248, is an interim amount, while the definitive payment has yet to be decided, said the Honourable Mr Justice Marcus Smith, sitting alone in his dual capacity as a chairman of the Competition Appeal Tribunal (CAT) and Judge of the Chancery Division of the High Court.
He said the figure represented the minimum of the costs that would be incurred.
The Judge also said that he would be issuing an order that the £1.33m which Agents’ Mutual had lodged with the court as security (for the eventuality that the CAT judgment had been in favour of Gascoigne Halman) be returned to Agents’ Mutual.
Similarly, he said that he would be issuing an order for a further £500,000 fortification of costs, which Agents’ Mutual had lodged, to be returned.
The rulings were made in court yesterday in the aftermath of the Competition Appeal Tribunal ruling regarding OnTheMarket’s ‘one other portal’ rule.
The Tribunal ruled last week that the rule was not anti-competitive but indeed ‘objectively necessary’ as part of OnTheMarket’s entry into the property portals market and a case management conference was set last Friday for yesterday to discuss costs and the next stage of the wider case regarding a breach of contract dispute brought by Agents’ Mutual against Gascoigne Halman in the High Court.
Yesterday’s hearing was expected to take just two hours but lasted six, with at times intense deliberations over costs and whether the non-competition proceedings could or should be progressed before there is clarity as to whether Gascoigne Halman will apply for leave to appeal.
The agent would need to apply in the first instance to the Competition Appeal Tribunal, specifying the issues it wishes to challenge, and, if this application were not accepted, it would then need to apply to the Court of Appeal for permission to pursue its appeal there.
The interim payment was based on what QC Alan Maclean, for Agents’ Mutual, had earlier suggested to the hearing and said was a “conservative estimate” of the overall costs, especially as it was based on a budget which was agreed several months ago and which explicitly excluded several defined areas of costs, even without taking into account incremental costs incurred since that time as the case evolved.
QC for Gascoigne Halman Paul Harris initially rebuffed this as a full schedule of costs hasn’t been submitted to the hearing.
He told the hearing: “It is unprecedented for a party applying for costs to come and say they want costs without a costs schedule.
“Instead they have made reference to historic material that don’t show what is spent.
“They are asking you to make an order in respect to what has been spent without showing what has been spent.
“Your lordship has to be satisfied that the costs sought have been incurred. You can only be satisfied with a statement of costs.
“It is unprecedented to come to court when you haven’t even satisfied the court that you have spent that.”
Yesterday, Mr Justice Smith also gave his judgment on whether the non-competition issues should be stayed pending Gascoigne Halman’s application to appeal the CAT judgment.
This application to appeal would be made to the CAT. If the Tribunal does not allow it, an application could then be made to the Court of Appeal.
The Judge yesterday determined that a stay of the non-competition issues should remain in place, pending any potential appeal process because of what he described as “the nexus between the two sets of issues”.
If leave to appeal the judgment is not granted by the CAT or the Court of Appeal, it is expected that there will be a further hearing for directions as to whether the non-competition issues should be pursued within the Chancery Division.
There will be liberty to apply, meaning that, even if leave to appeal is given, Agents’ Mutual would have the option to go back to the court to ask for the non-competition case to be restored in the event that leave to appeal is given on matters which will not affect the hearing of the non-competition case
The Judge also made it clear that the stay was ordered on the basis that Gascoigne Halman would continue to list with Agents’ Mutual’s portal OnTheMarket, continue to pay its listing fees, and observe the ‘one other portal’ rule.