Summary assessment of costs: who is the appropriate judge?

Summary assessment of costs: who is the appropriate judge?

rcjCan a judge undertake summary assessment of costs when the costs order was made by a different judge?  This was the issue which came before Coulson J in Transformers and Rectifiers v Needs [2015] EWHC 1687 (TCC), a judgment handed down last Friday, 12 June 2015.

Facts

Coulson J was to summarily assess costs under a costs order he had made.  At the same time he was asked by the claimant to undertake summary assessment of two costs orders also made against the defendant but made by Edwards-Stuart J in November 2014. All three costs orders arose out  the defendant's unsuccessful attempt to adjourn a preliminary issues trial.

Jurisdiction to undertake summary assessment

Coulson J stated that there is nothing to prevent one judge summarily assessing the costs of a hearing which was conducted by a different judge and further he considered that to hold otherwise would make no sense on a practical level.  He emphasized that the relevant provision, CPR PD 44, para 9.7, is permissive therefore the summary assessment may be heard by the judge that made the costs order or by another judge. Which judge undertakes the summary assessment will be depend on the circumstances and which is most appropriate.

As to which judge should undertake the summary assessment he noted that if a judge has heard a contested application involving submissions and witness evidence it would be more appropriate for that judge to make the summary assessment of costs as they will have heard evidence which will not be available to a different judge.  If the costs order was made hearing determined the application on the papers then the same evidence would be available to the later judge and there were therefore just as well placed as the original judge to undertake the summary assessment.

Coulson J also considered the relevance of the Overriding Objective stating that it requires speedy and effective justice and to ensure that, it comes with a degree of flexibility. It would run counter to the overriding objective if a summary assessment of costs could not be made due either at all or in a timely manner because e.g. the original judge had died, was indisposed or was unable to deal with the matter at the time required e.g. was out on circuit.

Impact of Court of Appeal decision in Mahmood

Finally he considered the Court of Appeal judgment in Mahmood & Anr v Penrose & Others [2002] EWCA Civ 457, a case in which he noted that as both parties had represented themselves and it was unclear whether the point had been argued before the court, it was therefore doubtful whether the Court of Appeal had intended to lay down any point of principle. He distinguished it on the basis that:

  • it involved a different version of the practice direction which was not permissive; it contained the wording ' the Court must give directions'
  • it was decided under the previous wording of the overriding objective. The new wording places a different emphasis on the meaning of proportionality. In certain circumstances, including the ones before Coulson J, it would be disproportionate for a judge not to make the summary assessment of costs
  • it was concerned with the summary assessment of costs of a hearing. In the case before Coulson J it had been on the papers

What is a costs officer?

Finally I would note that CPR PD 44, para 9.7  opens with the wording ‘The court awarding costs cannot make an order for a summary assessment of costs by a costs officer’.  For practitioners considering what is meant by a ‘costs officer’, it is a position held within the Senior Court Costs Office and is defined with the SCCO Guide as ‘Authorised court officers who assess most bills for sums not exceeding certain amounts specified from time to time. From their decisions, appeals lie as of right to the Costs Judges.’

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About the author:

Janna is a dispute resolution lawyer. She deals primarily with cross border issues and is active in the work being undertaken in relation to the implications of Brexit for Dispute Resolution lawyers. Janna also heads up a LexisNexis costs team bringing together expertise from across the company to deal with the costs issues facing the profession.