Summary Assessment Succesfully Appealed arises from Cohen v Fine & Ors [2020] EWHC 3278 (Ch).
Here an Excecutor appealed against a District Judge’s summary assessment of costs.
The claimant was a professional Executor. He wanted a figure getting close to £49,000 after a dispute arose.
The DJ said she was appalled at the level of costs, accepted that proportionality might not be relevent but suggested reasonableness was an issue saying:
It is wholly unreasonable to claim this amount of costs.…I am appalled by the amount of costs that are sought by an executor I do have regard to the point forcefully made by Mr Fine, that it was always available to the executors to act quicker, more expeditiously, more promptly, thereby truncating or reducing any claim for costs. It is absolutely right that a reasonable amount should be recovered by the estate. £50,000 is absolutely not reasonable.
The DJ settled at around £27,000 after making some comments inter alia on duplication and so on.
On the appeal the following was said by the appellant:
Mr Fletcher submits that the District Judge was wrong and erred by simply allowing a figure of £27,000.00. That figure was inclusive of VAT, counsel’s fees and disbursements. There was no explanation of how that figure was reached and no calculation at all. The figure appeared to have been determined wholly arbitrarily. There was insufficient reference to the claimant’s N260 costs statement. Reliance is placed on the Court of Appeal case of 1-800 Flowers Inc v Phonenames Limited [2001] EWCA Civ 721, [2001] 2 Costs LR 286. There the Court of Appeal is said to have made it clear that judges conducting a summary assessment cannot impose their own tariff but must focus upon the detailed breakdown of the costs actually incurred. Mr Fletcher then quotes paragraphs 113 to 116 of the judgment of Jonathan Parker LJ (with whom Buxton and Peter Gibson LJJ both agreed). Mr Fletcher submits that the District Judge was wrong, and fell into serious procedural error, by making it clear throughout the hearing that it was to last only an hour and by failing to consider the option of adjourning the claimant’s costs for later summary, or detailed, assessment. This failure is said to have resulted in an outcome that was not properly considered and was rushed, with the consequence that it was unjust. Rather than proceeding, if there was a lack of judicial time at the hearing on 11 June 2020, an adjournment to some later date would have meant that the claimant’s costs could subsequently have been considered thoroughly and with proper attention (as canvassed for in the alternative at paragraph 9 of the claimant’s skeleton argument for the hearing on 11 June 2020). As it was, it is said that the summary assessment was dealt with in a very rushed and intemperate fashion, resulting, the claimant submits, in unfairness.
The judge dealing with the appeal settled on a figure close to £37,000 and substituted his own judgment for the DJ. A key issue appears to have been that summary assessment should refer to the statement of costs:
…While summary assessment can be “broad brush”, a judge still has to consider the individual elements of the bill item by item: see Flowers, McLinden v Redbond, and Morgan v Spirit Group. What is meant by “broad brush”, in the present context, is that, unlike the detailed assessment procedure under CPR 47, there is no need for any formal notice of commencement of the assessment, or any detailed bill of costs, or any points of dispute, or any points of reply. But the court must nevertheless address individually each separate objection that may be taken to particular items in the N260 statement of costs…What lessons are to be learned from the present appeal? How might costs assessments be conducted in future cases, consistently with the need to further the overriding objective? How can courts avoid the summary assessment procedure becoming “bedevilled by formulaic and time consuming intricacy which would often be wholly disproportionate to the exercise being carried out and the nature of the litigation in hand” (to adopt the words of Black LJ)? First, the court should establish from the paying party how many, and which, individual elements of the statement of costs are subject to challenge. If there is simply no time available to undertake an item by item consideration of those elements, the court should make this clear; and it should ask whether all relevant parties expressly consent to the court adopting a broad brush, and global, approach to these disputed items, without minutely examining them in any detail. If such consent is forthcoming from all relevant parties, it should be expressly recorded in the court’s order. If no such consent is forthcoming from all relevant parties, then the court has the options of: (1) ordering that the assessment (and, if not previously determined, the incidence and/or the basis) of the costs of the relevant hearing will be determined on paper following upon an exchange of short, sequential written submissions from the relevant parties (as O’Farrell J did in Ohpen Operations); (2) re-listing the matter for a summary assessment of the costs; or (3) directing that the receiving party’s costs should be the subject of a detailed assessment. If a detailed assessment is ordered, the court should exercise its power under CPR 44.2 (8) to order the paying party to pay a reasonable sum on account of costs unless there is good reason not to do so. This salutary power should always be borne firmly in mind as an alternative to a rushed, and procedurally improper, summary assessment.
