Blog - Monday 15 June 2015

One Judge Can Summarily Assess The Costs Of Another Judge’s Costs Order

In  Transformers And Rectifiers Ltd v Needs Ltd [2015] EWHC 1687 (TCC) (12 June 2015), Coulson J found that, in certain circumstances, a judge can summarily assess the costs arising out of a costs order made by a different judge.

Wasted costs orders were made by Edwards–Stuart J against a Defendant when it sought the adjournment of a trial. The Claimant argued the costs could be summarily assessed by another judge and the Defendant argued that they must be summarily assessed by the judge who made the orders.

Coulson J found that, the civil procedure rules as they stand now mean that there is no bar on a different judge summarily assessing costs. He found that the position may be different if the costs orders arose from a contested hearing and the assessment of costs depended on the views formed by a judge following submissions. But if orders are made following consideration of the papers for example (as was the case here) a different judge has precisely the same material available to him.

Coulson J emphasised the change to the CPR.r.44 PD 9.7 which now stated:


“No summary assessment by a costs officer

9.7


The court awarding costs cannot make an order for a summary assessment of costs by a costs officer. If a summary assessment of costs is appropriate but the court awarding costs is unable to do so on the day, the court may give directions as to a further hearing before the same judge.”


The previous, pre-1 April 2013, corresponding PD (CPD 13.8) said “must” instead of “may.” With this, together with the addition of proportionality to the overriding objective, Coulson J found that, in certain circumstances, a  judge should be capable of summarily assessing costs arising from orders made by a different judge.

The Defendant sought to rely on a Court of Appeal’s decision in Mahmood & Anr v Penrose & Others [2002] EWCA Civ 457. Coulson J distinguished that decision on the basis that case:-

1.  Fell under the pre-1 April 2013 practice direction where the test was one of “must” instead of “may;”
2.  Fell under the pre-1 April 2013 overriding objective that did not expressly require consideration of proportionality;
3.  Followed a hearing;
4.  Was one where the parties represented themselves and it was not clear if the Court had heard any argument;

Coulson J also found that it was unlikely that the Court of Appeal intended to lay down a principle to be followed in all subsequent cases.

Coulson J went on to summarily assess the costs arising from the orders made by Edwards-Stuart J.

by Nick McDonnell, Senior Associate and Costs Lawyer