Neutral Citation Number: [2018] EWHC 850 (Ch)
CLAIM NO BL-2018-000566
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Rolls Building, Fetter Lane, London EC4
Date: 17 April 2018

Before:
Mr Daniel Alexander 
(sitting as a Deputy Judge of the High Court Chancery Division)

BETWEEN:
- - - - - - - - - - - - - - - -

ID MEDICAL GROUP LIMITED
Applicant/Claimant
-and-

(1)	UNIFIED MEDICAL LIMITED
(2)	ROBERT AGNEW
(3)	Ross Burton
(4)	john callum boardman
(5)	benjamin thompson
and 12 FURTHER DEFENDANTS
Respondents/Defendants
- - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - -

Mr Alaric Watson instructed by EMW Law LLP appeared for the Claimant
The First to Fifth Defendants in person  

Hearing date: 13 April 2018, further written submissions 16 April 2018
JUDGMENT APPROVED
Daniel Alexander QC:
INTRODUCTION

1.	This case concerns rival companies in the healthcare recruitment business.  The claimant is a major recruitment agency specialising in placing nurses and other healthcare professionals. The first defendant is a new company set up by the second defendant, a former senior employee of the claimant and in which a considerable number of former employees of the claimant are now involved. The departure of the second defendant, the setting up of the first defendant, the recruitment of the former staff of the claimant, and the various contacts that those on behalf of the first defendant have had with hospitals seeking nurses and nurses seeking employment who were previously contacts of the claimant, has given rise to an action seeking to enforce restrictive covenants in the former employees’ contracts of employment, to restrain alleged breaches of confidence and other related relief.  The remaining respondents are other former employees of the claimant who are now involved with the first defendant.  The remaining defendants who are not respondents to the current applications are also former employees of the claimant, now working with the first defendant.

2.	By an application notice dated 9 March 2018, the claimant applied for an interim injunction to restrain various alleged threatened activities of the respondents. The application originally came before Mr Justice Zacaroli on 20 March 2018. He accepted certain undertakings as to the respondents’ activities pending the effective hearing of the application, ordered certain information to be given by the respondents and stood the matter over to a 1 day hearing. At that stage the respondents were represented by counsel (in the case of the 3-5th respondents pursuant to the CLIPS scheme).  

The hearing

3.	The effective hearing came before me on 13 April 2018, by which time none of the respondents were represented by solicitors or counsel. The previously instructed solicitors for the first and second respondents had, I was told, applied to come off the record just before the hearing. 

4.	The case was opened on behalf of the claimant and there was discussion between the court and counsel for the claimant about the points on the order sought that were of particular concern. During that discussion, some of the issues and the relevant case law were explained to the respondents at greater length than would ordinarily have been done, given that they were acting in person. The argument included discussion of further evidence served out of time by the respondents which it was said to be relied upon.  I also considered that (extensive) further evidence over the short adjournment.  

5.	Shortly after the respondents started to address the court in person, it became clear that that, contrary to what had appeared at the outset, there was limited difference between the parties as to the interim orders it would be appropriate to make, especially as regards the injunctions sought which had been somewhat modified since the form in the original application notice.   Those have now been agreed completely and provide, inter alia, for an element of “springboard” relief by way of extended undertakings until trial or certain fixed dates.  Because of that agreement during the hearing, it became unnecessary for the court to consider whether such extensive relief was in fact justified and it is also unnecessary to set out the undertakings in full here.

6.	The parties indicated that costs were not agreed and I heard argument on this and interim payment. I indicated that I would be minded to make an award of costs but I did not reach a concluded decision as to the form of order, since there were additional matters to be finalised on the draft order, in particular as regards directions to trial which needed to be subject of discussion between the parties. I therefore adjourned the hearing and asked the parties to submit an agreed order by 10.00am on the next court day, 16 April 2018 or, if not agreed, to indicate the nature of any disputes, which I would then resolve in writing. They have done so and this is my judgment on the outstanding matters on the form of order.

7.	The parties also made further written submissions on 16 April 2018 with the proposed draft order, largely directed to costs, which I have taken into account. 

The parties’ proposed directions

8.	The directions which the parties invite the court to endorse are as follows:

1.	The matter be listed for expedited trial on the first open date after 1 July 2018, with a time estimate of 10 days (including pre-reading).
2.	The Defendants do file and serve their Defence by no later than 4:30pm on 23 April 2018.
3.	In relation to disclosure:
a.	Each party is to give such further disclosure as may be necessary to the other side by list by no later than 4:30pm on 4 May 2018;
b.	Inspection by no later than 4:30pm on 11 May 2018;
c.	The Claimant’s Solicitors be at liberty to inspect the images taken by its IT expert in accordance with the undertakings given to the Court on 20 March 2018 (as recorded in the Order of that date by Zacaroli J).  The Claimant’s Solicitors be at liberty to share with the Claimant any material found therein other than the confidential information of the Defendants.  
d.	There be liberty to apply back to the Court by either side on 3 days’ notice to the other party in relation to 3(c) above.
4.	The parties to exchange and file such further Witness Statements as they wish to rely on at trial by no later than 4:30pm on 8 June 2018.  For the avoidance of doubt each party is at liberty to rely on the evidence filed in connection with the Application herein at trial as evidence in chief (supplemented as they see fit).

9.	These proposed directions set a compressed schedule to a very early trial and include provision for disclosure and evidence from 17, currently unrepresented, defendants. 

10.	Directions for trial are not a matter only for the parties, still less only the parties who are before the court on this application.  There is no indication that these directions have been agreed with each of the other individual employee defendants who are not respondents to the application and against whom, in some cases, claims have been made for breach of contract by failing to work out their notice over rather modest periods of between a week and a few weeks.  Moreover, since the hearing on 13 April 2008, the time estimate for the case has significantly expanded. 

EXPEDITION

11.	The parties have not made a formal application for an expedited trial and the first substantive discussion of expedition was in the claimant’s skeleton argument for the hearing.

12.	Although the directions as between the parties are unobjectionable as far as they go, expedition is not a right. Given the work that had already been done, which consists of the preparation of a significant volume of evidence on both sides, it appears that it would be possible for the case to be heard relatively rapidly. However, the fact that it may be possible and the parties wish it to be done is only the starting point, especially in a case where no proper application for expedition has been made.   

Principles

13.	The relevant principles which the court applies in ordering expedition are usefully summarised in Warner-Lambert Company LLC v Teva UK Ltd & Ors [2011] EWHC 2018 (Ch) (22 July 2011) by reference to the summary by Warren J in CPC Group Limited and Qatari Diar Real Estate Investment Company [2009] EWHC, 3204 (Ch) as follows: 

"The Law 

83. Before expressing my conclusion on whether there should be an expedited trial, I should briefly mention the law.

84. In Wembley National Stadium v Wembley (unreported, CA, 28 November 2000) Jonathan Parker LJ (with whom the other Lords Justice agreed) confirmed at paragraph 54 that 'the issue whether to grant expedition, and if so how much and on what terms, was a matter essentially for the discretion of the judge'. That case was a fairly clear case of urgency, concerning the rectification of a lease which if not rectified prevented work commencing on the new stadium for 2 years. The consequences of delay could have been disastrous and the trial would result in the final resolution of the dispute between the parties.

85. Like any discretion, that discretion must of course be exercised judicially. It is 'partly a question of principle and partly a question of practice': Daltel v Makki ….Lloyd J at paragraph 11, a case where an expedited trial was not, in fact, ordered. 

86. The general principle under the CPR is that cases are to be brought to court as soon as reasonably possible, consistently, of course, with the overriding objective: See Daltel at paragraph 12; to similar effect, see also Law Debenture Trust v Elektrim , Morgan J at paragraph 11. 

87. The Court has a wider responsibility. It must also take into account 'the requirements of other litigants': See Elektrim at paragraph 11 and Daltel at paragraph 11. This is because 

'Any order for expedition involves a disturbance of the normal procedure of a case to be got to trial. It involves giving preference to one case in the allocation of court time over other cases; it also involves requiring the lawyers on both sides to give preference to the tasks of preparation of a trial for that case as over tasks of a similar nature in relation to the affairs of other clients.' 
  
14.	In Warner-Lambert, Floyd J drew particular attention to the impact of expedition on other court users and concluded that he was “just about persuaded” in the circumstances of that case that the existence of an interim injunction, the fact that the defendants would continue to suffer a degree of uncompensatable harm for as long as it ran and the potential loss to the defendant of a period of duopoly, pointed in favour of the degree of expedition he ordered.  

(i)  	The expiry of the covenants and springboard relief

15.	In my view a similar position obtains here but it is much less clear. The interim undertakings extend non-solicitation protection and non-dealing protection by way of interim springboard undertakings beyond the period of expiry of the second respondent’s covenants. Even if the scope and duration of the specific covenants are likely to be justifiable as not being in unreasonable restraint of trade, given the claimant’s legitimate interests, which is disputed, I accept that there is there is a real risk of unquantifiable damage to the respondents for a period extending beyond these which, in turn, is likely to extend beyond the date of trial if it is heard in July 2018.  Unless there is an element of expedition it is likely that the restrictions will have expired by the time of trial.  That is a factor in favour of expedition and one by which I was originally attracted.

16.	Moreover, having reviewed the material, it is in my view unlikely that the early activities of the defendants have produced very much of a springboard advantage beyond the period of expiry of the various covenants for similar reasons to those given by Mr Nicholas Vineall QC, sitting as a Deputy High Court Judge in Aquinas Education Ltd v. Miller and others [2018] EWHC 404 (QB) and it may well be that any advantage has been wholly eliminated by the various undertakings given. An entitlement to springboard relief, whether by way of damages and even more so by way of injunction, is often hard to establish evidentially (see, for the principles, QBE Management Services (UK) Ltd v. Dymoke [2012] EWHC 90 (QB)).  To that extent, it may be said that there is likely to be a real benefit in having the issue of springboard relief determined before expiry of the undertakings.  However, that is not the end of the issue.

(ii)  	Only part of case merits expedition

17.	Those considerations apply only to the enforceability, scope and duration of the constraints that currently affect the respondents. I have since the hearing been able to give more detailed consideration to the Particulars of Claim which was not examined during oral argument. There is, as far as I can see, no real justification for the monetary claims for compensation against the various defendants to be expedited and there has been no proposal to strip these out and hear them separately.  
 
18.	The claim currently pleaded is principally for significant damages and in some respects accounts of profits, although it is not clear exactly what damage is said to have been done by which former employees in any detail. It is hard to believe that the breaches of contract by individual relatively junior employees who left before working out their notice could give rise to significant damages or that this would be significantly incremental to other claims. There is already some evidence that the claimant is seeking to find fault in numerous aspect of the respondents’ conduct, even if of no particular importance (compare here the criticisms of the affidavits served by them as being served in contempt of court). 

19.	If the monetary claims are decided with the others as is proposed, there is a real risk that the court will be forced to hear as well on an accelerated timetable contested multiple micro-claims for damages against individual former employees as to whether (for example) they were or were not “poached” or whether they joined the first defendant without any solicitation and whether they had any justification for leaving before their notice period.  From the material submitted on this hearing, including the additional proposed evidence from the respondents relating to the other defendants which was sought to be admitted very late, there is likely to be a significant factual dispute as to whether any and if so which of the claimant’s employees who are now employed by the first defendant were “poached” (as the particulars of claim plead) from the claimant in breach of the non-solicitation clauses or whether they left spontaneously as a result (it is said by some) of an unsatisfactory working environment at the claimant in which there was, to put it colloquially, too much stick and too little carrot. 

(iii)  	Numerous sub-issues

20.	The case also involves numerous other sub-issues relating to some of the defendants which it is far from clear add anything to the case and which would not merit expedition in any event. These include an allegation of breach of fiduciary duty as to which there is considerable scope for further sub-disputes as to whether the relevant employees owed fiduciary duties at all, which is not self-evident (see, for example, Ranson v. Customer Systems plc [2012] EWCA Civ 841). There are also quite complex pleadings of economic torts.   

(iv) 	Extended time estimate

21.	I asked counsel at the hearing for the best estimate of the trial, which was given as 5 court days on 13 April 2018. That had expanded to 10 days including pre-reading by 16 April 2018. Given the multiple claims and multiple unrepresented defendants, that may well be realistic.  

(v) 	Significance of duration/scope of interim undertakings

22.	There are some cases in which the precise duration of the interim restrictions under which respondents may operate is critical. That is less so here partly because the manner in which the restrictions are framed leaves room for the respondents to engage in a rival recruitment business in other ways.  

23.	Importantly, since the hearing, the submission from the respondents on 16 April 2018 suggests that the real issue between the parties is not so much the duration of the restrictions (springboard or otherwise) but relates more to monetary issues. That is consistent with the approach taken by the respondents at the hearing on 13 April 2018 at which there was no real resistance to the duration of the proposed undertakings, even though they were proposed to be longer than originally sought in the draft order on the application. 

24.	In my view that is also a significant factor since it shows that the need for expedition is lower than may at first have appeared.  If the undertakings are shown at trial to have been too extensive, the respondents can and will be compensated on the cross-undertaking in damages and by an award of costs in their favour.  

25.	In my view, these are factors which must be taken into account in deciding whether the case, taken as a whole, is, after reflection, suitable for expedition.  I have considered whether a part of the case could and should be split off and expedited but I am not satisfied that this can readily be done. It was not sought and it would be impractical. In my judgment, taking all of the factors together, notwithstanding my original attraction to doing so when the issues seemed of narrower compass, it is impossible, given the approach that the law requires, to say that this is a case which should be expedited so as to require the hearing of a 10 day trial in July this year. 

26.	However, since this decision is contrary to the agreed wishes of the parties and to the indication given earlier, I will exceptionally permit the parties to make a formal application for expedition of determination of some of the issues, properly supported by evidence and argument if, contrary to my belief and notwithstanding what I have said, it appears that it is really important that this is done.  

Adjustment of directions

27.	Although the parties have agreed (other) directions to that end, in my view these should be adjusted in the light of this decision. In particular, in my view, if no proper application for expedition is made, there should be an extension of time by 14 days for service of defences from the time provided for in the draft directions, for the following reasons.  

28.	First, the claimant sought a 14 day extension for service of the Particulars of Claim although a shorter extension was ordered in the light of the proximity of the hearing. Given that numbers of the defendants are not represented, in my view they should have slightly more time to consider this decision and the manner in which the case has developed in recent days. 

29.	Second, the impact of the undertakings given is that they should, if complied with, substantially mitigate (and, given their duration, may even overcompensate for) all or a large part of any  illegitimate damage that may be done by the defendants in the period pending trial, with the result that the action may ultimately not need to proceed to trial at all, saving large amounts of costs and management time.  That may be a relevant matter for the defendants to take account of in their pleadings.

Disclosure

30.	This is a case in which, in my view, there should be no order for (general) standard disclosure but, if anything, only focussed orders for specific disclosure on specific issues and only following approval by the court. There is a real risk that a general order for disclosure if made will produce little of value, will generate significant costs and may give rise to further collateral disputes as to whether or not disclosure has been properly given. That should be reconsidered after the defences are served. 

31.	The order should, however, provide, as the draft does, for inspection of the imaged computers.   

Impact on other defendants

32.	In making these limited directions, I also have regard to the fact that directions will affect other defendants who are not before the court and who may not have been given notice of the applications. In my view, further directions to trial should be made at a proper case management conference after service of the defences at which questions of disclosure, evidence and full further directions to trial can be properly determined.  The parties and the court will need to consider at that stage how this claim, which potentially involves numerous issues of minor (if any) incremental value as against multiple defendants, is best to be managed without tying up both sides in disproportionate work.

COSTS

33.	The remaining issue is costs.

Claimant’s arguments   

34.	The claimant contends that it should have all of its costs of the application before the court and the earlier application before Mr Justice Zacaroli who made an order including accepting undertakings pending this hearing. The costs of that hearing were reserved to this application and amount to £63,706. The claimed costs of this application are £49,448. 
   
35.	The claimant submits that these should be subject to a detailed assessment and that an interim payment on account of £30,000 should be made to be paid within 28 days. Counsel for the claimant submitted that these costs were reasonable and necessary to obtain relief which has, in the event, been substantially conceded and could have been avoided.  

36.	From the further written submissions, the claimant may have misunderstood the indication from the court that an order for costs would be made as indicating that an order for payment of all of the costs of both the applications in any event would be made with the only question being the amount of the interim payment.  That was not the intention and would not in my view be appropriate for the reasons given below. 

Respondents’ arguments

37.	The respondents contend, as I understand their submission, which consists of a letter from the second respondent, that only the first respondent should be obliged to pay only ¼ of the costs of the applications and that there should be an extended time to pay them (see below).

Discussion

38.	In my view, the answer lies somewhere in between: an order should be made that some of the costs should be paid by the respondents in any event with the remainder reserved, for the following reasons.

39.	First, the issue of entitlement to interim relief and the merits of the claim are closely bound up. So it is likely that a significant part of the costs of preparing the evidence for the hearing and preparation of argument for the hearing itself are costs which relate to the substantive action. In particular, the issues of the scope and duration of any restrictions including any springboard period (if any) are as much issues in the action as on these applications. Second, although the respondents have, in the event, given undertakings, these are not identical to those originally sought in the draft order annexed to the application notice and the proper scope of undertakings was the subject of debate with the court as to their scope and justification. It is not clear that the court would have made an order in the terms of the undertakings had they not been given. Third, the claimant made a number of allegations that the respondents were in breach of the order of Mr Justice Zacaroli as a result largely of the content of the affidavits sworn in purported compliance with his order as a justification for a further order relating to the source of the relevant information.  Following argument, it did not seem that these contentions as to breach were likely to be justified, given the specific terms of that order. The defendants could have given more detail as to the sources of the information provided in those affidavits, as they have now agreed to do, but that is a different question from whether the affidavits were defective originally. Fourth, as the argument developed, it became clear that matters which appeared at one point to be alleged to constitute wrongful solicitation (such as participation in a Facebook forum) could not really be criticised on that basis and the respondents were content not to deal with certain nurses who may also be members of that forum. Fifth, part of the application as it developed involved an application for an expedited trial which was not foreshadowed in the earlier application. Sixth, the respondents indicated a wish to rely on considerable further evidence which had been served only the day before the hearing, well outside the time provided by the order of Mr Justice Zacaroli. I skimmed it and concluded that it was unlikely it take matters further on the application but may have a bearing on some of the issues at trial and, in particular, as to whether there had been solicitation of employees of the claimant as opposed to those employees coming to the defendants on their own initiative. However, it indicates that the respondents appear to have been preparing to contest the substance of the relief sought until a late stage rather than focussing on giving undertakings pending trial.  Generally, my sense is that the respondents have been leaving matters until the last minute, increasing the costs which the claimant has to incur.

40.	I therefore think that a significant portion of the costs should be paid by the respondents in any event. 

41.	Given the extended discussion of the merits, the allegations of alleged non-compliance, the detailed justification for aspects of the order, the procedure and the justification for expedition, some of this debate would have been inevitable regardless of the issues on the injunction and were not topics on which there was a clear “winner”.  

42.	Analysis of the costs of this case in the conventional terms of a successful single issue application, on the footing that during the hearing interim undertakings were given which satisfied the claimant and which were in line which the relief sought does not reflect the reality of the hearing overall, the materials prepared for it or the hearing before Mr Justice Zacaroli.  A more sensible approach on this occasion in accordance with CPR Rule 44 involves stepping back and asking to what extent were costs unnecessarily incurred as a result of the respondents (i) only agreeing to the continuation of modified undertakings to protect the position pending trial which were agreed at a comparatively late stage at the hearing before me and (ii) necessitating a dispute over provision of further information at the earlier hearing.  

43.	Ordinarily, it may have been more appropriate to make the remaining part of the costs  “claimant’s costs in the case” but because it there are several different claims and therefore no single “case” upon which costs should be contingent, preserving a greater discretion in later courts to deal with the remaining costs, depending on how the case progresses and is resolved makes more sense. Because one of the major issues both on this application and at the trial is the extent of relief to which the claimant will be entitled and because there are multiple respondents/defendants and causes of action which inter-relate, the more appropriate course is to reserve part of the costs to the trial judge. In that way, it will be possible to tailor the costs award in due course by reference to the extent to which the former employees and the first respondent are shown not to have adequately respected the claimant’s legitimate rights and the extent to which the claimant’s claim for relief is justified or is (for example) exaggerated in amount or duration/scope of protection. The costs schedules do not permit precise evaluation and this kind of interim costs evaluation is necessarily a broad brush exercise in accordance with CPR Rule 44.

44.	In my judgment, taking all of the above into account, the right course is to order that half of the costs of each of the applications before Mr Justice Zacaroli and before me to be paid by the respondents in any event with the other half being reserved. 

45.	In reaching this conclusion I have not assumed that no offers had been previously been made by the respondents (see the e-mail clarifying the claimant’s submissions on costs dated 16 March 2018) but rather have taken into account the fact that there has been a recognition by them that relief pending trial is appropriate which the claimant had to come to court to seek. I have also taken into account that the respondents gave undertakings at the hearing before Mr Justice Zacaroli thereby obviating the need for a hearing on at least those issues at that stage.  

Interim payment

46.	Despite the fact that the hearings before Mr Justice Zacaroli and me took less than a day, I was not invited to assess the costs summarily but rather to make an interim payment on account of costs in respect of any award in favour of the claimant.   

47.	The claimant contended that an interim payment of £35,000 was appropriate but was prepared to accept £30,000 as an interim payment, albeit with respect to all of its costs of the application. 

48.	It is well established that an interim payment should attempt to evaluate the costs likely to be awarded rather than merely seek an irreducible minimum. No criticism was made of the Statements of Costs as such by the respondents, whose submissions focussed instead on the difficulties they would have in paying any award of costs and seeking a payment schedule. 

49.	There are, however, certain aspects about the Statement of Costs which mean that the court should be more cautious in this case as to the sum awarded on account.  First, the hourly rates in respect of which the costs claim is made appear to be above the Guideline rates for the grades in question for the geographical area concerned. Second, it appears that certain costs may have been included which are not clearly referable only to the applications in question.  For example, the whole of the costs of the computer imaging expert have been included. These are more naturally to be regarded as the costs of the action. Third, it is not clear that the time spent in preparation of the evidence was limited only to that which was reasonable and proportionate.  It should be noted that certain (relatively minor) matters needed to be corrected in later evidence and it is not clear that these are costs which the respondents should pay.  

Interim payment in respect of the half of the costs ordered to be paid now

50.	Half of the costs of the two hearings amounts to just over £113,000/2 = £56,500. In my judgment, having regard to the various uncertainties referred to above, it would be right to make an order for an interim payment of between 50% and 60% of that sum which, rounded, amounts to £30,000.   

Schedule for payment

51.	The claimant realistically accepts that time to pay should be extended beyond the normal 14 days to 28 days. The respondents submit, however, that there should be a very extended schedule for payment of these costs having regard to the resources of the first respondent and the other respondents. They contend that the first respondent is not in a position to pay any part of the sum for 6 months while it establishes itself and contend that there should then be an extended payment schedule pursuant to which the liability for costs would not even be paid off this year. 

52.	There is no evidence as to the means of any of the respondents nor any draft projected financial statements, nor any evidence relating to the financial support which may be available for the first respondent from the individual or individuals apparently behind it. The claimant resists additional time to pay for multiple reasons.  

53.	I have particular regard to the following. First, the first respondent, appears currently to be continuing trading and, according to the witness statements served last week, has numerous employees, including ex-employees of the claimant. In order to trade at all, the first respondent must have the resources to pay those employees and the normal running costs of the business. These will amount to a substantial monthly outlay and the business must be financed to an extent sufficient to enable that to be done, which the respondents’ proposed schedule for payment of costs proposes. It must therefore have access to reasonable resources.  Second, there is evidence that the first respondent may be paying former employees of the claimant at least as well as they were paid when employed by the claimant (see the witness statement of Mr Willibond at para. [8], concerning Mr Burton). Third, the second respondent was employed by the claimant at a significant salary (over £100,000) and both he and the other individual respondents may have assets of their own with which to satisfy this costs award if they get together and pool their resources. Fourth, it is not satisfactory simply to seek additional time to pay by way of a letter in these circumstances. The respondents have known since the hearing before Mr Justice Zacaroli or before that the claimants would be seeking an award of all or a substantial part of the costs of these hearings.  Fifth, it would appear likely that until at least 11 April 2018, which is the date of the numerous witness statements served late, the solicitors for some of the respondents must have been put into sufficient funds to assist in the work involved drafting (they appear to have been prepared with the benefit of professional advice). So these respondents appear to have been willing, and presumably prima facie able, to pay their own solicitors for substantial work.

54.	I am therefore not satisfied that it would not be possible for the respondents, and in particular the first respondent, to gather together the resources to pay this costs award within a reasonable time or that it would be right to deprive the claimant of costs which it has had to pay its lawyers to obtain the relief so far for an extended period.

55.	However, it is a matter of judicial notice that cash flow issues can sink fledging businesses such as the first respondent. It is not in the interests of the claimant for the costs award to go unsatisfied as a result of making it unreasonably difficult for the respondents to trade nor is it in the interest of third parties for the first respondent to be required to cease trading by the timing of a costs liability which would otherwise be payable (including the interests of the employees of the first respondent and its potential NHS customers who may have an interest in there being lawful competition to the claimant). £30,000 is a considerable sum for a small start-up company to find all at once and rapidly. 

56.	I will therefore order that half of the interim payment (£15,000) is paid by the respondents to the claimant within 28 days of today and the remaining £15,000 is paid no more than 28 days later.  The overall effect of this order is therefore that it will remain open for either an assessment of costs or later orders of the court to make (or not) an award of closer to the full costs of these applications in due course, unless the case is settled in the interim, and that the payment schedule is only slightly different to that sought by the claimant.

57.	Finally, I do not regard the respondents as having made a properly formulated application for extended terms for payment by the letter of 16 March 2018. Accordingly, I do not consider that in making this order, I have determined such an application adversely to the respondents. In the circumstances, it remains open to the respondents (or any one of them) to make a properly formulated application with full and frank evidence as to (a) their means, assets, outgoings etc. (b) resources available from elsewhere and so on, for additional time to pay. I do not invite such an application nor do I consider at the moment that it is likely to succeed.  To the contrary, it is likely simply to increase the costs further.

Minor matters

58.	Formally, since this decision is being given in writing, I also notify the parties of their rights to seek permission to appeal albeit without indicating that an appeal would have any real prospect of success, since it involves the exercise of a discretion as to case management and as to costs. 

59.	The parties should draw up an order to reflect this judgment including provision for permission to apply for a case management conference at a suitable time after the time has expired for service of defences and generally on the usual notice. Part of the reason for giving this decision in writing and providing more extensive reasons is so that the defendants not involved in the hearing understand the procedural issues fully and appreciate the need to engage with the next procedural steps in the case. A copy of this decision should also be provided to them by the claimant’s solicitors.