KA-2024-000232 - [2025] EWHC 1681 (KB)

On 8 November 2024 the adjourned detailed assessment hearing took place. This addressed solely the issues relating to Item 39 of the Appellant’s Bill of Costs, Point 23 and the annotated schedule.

The Judge conducted a “line-by-line” assessment of around 10% of the constituent parts of Item 39: see p.6E-39C of the transcript. The remaining 90% was assessed using a “coffee break option” suggested by the Judge. The parties had a break, and when they returned, the Judge gave them a provisional view on which the parties made submissions, with the option of them having a “detailed assessment item by item” still open to them if they wished: p.38H-39A. This was also still a relatively lengthy process, as the transcript makes clear and as the Judge himself accepted, observing at the end that “we have actually taken quite a long time today even though we have dealt with the matter on a broadbrush basis”: p.71G.

The Judge gave separate judgments explaining his assessment of Item 39 of the Bill and on interest. He assessed the Claimant’s Bill in a total sum of £89,032.62 with £8,234.91 in interest.

The Judge then turned to the issue of the costs of the detailed assessment. The Respondent had made a Part 36 offer which the Appellant had not “beaten”. The parties therefore agreed that the Respondent would pay the Appellant’s costs up to the date on which the offer expired (3 July 2024) and that the Appellant would pay the Respondent’s costs thereafter. This was subject to an argument about whether the Respondent should pay the Appellant’s costs of the adjourned detailed assessment in any event.

In written and oral submissions Mr Mason argued that the Respondent’s conduct in serving the annotated schedule so late had led to the need for an adjournment, such that the Respondent should be ordered to pay the Appellant’s costs of the adjourned detailed assessment. He cited Barton v Wright Hassall LLP [2018] UKSC 12 and Woodward & Anor v Phoenix Healthcare Distribution Ltd [2019] EWCA Civ 985 in support of the proposition that while the Appellant was under a duty to assist the court for the purposes of the overriding objective, the Appellant was under no duty to remind the Respondent that they had failed to file the schedule: p.71B-75C.

At one point the Judge asked “…is it not the reality that we just lost the tail end of the hearing because we would have tipped over into another day in any event, would we not?”. Mr Mason responded that the parties had only “tipped over” into a third day because of the Respondent’s late service of the schedule: p.73B-C.

It appears that although the Appellant had obtained a copy of the transcript of the judgment from 6 August 2024, this was not shared with the Respondent. The Judge noted that he had not seen the final version of the transcript but indicated that he had reviewed the draft of it. The Judge recollected that he had been critical of the Appellant in two respects: for failing to chase the schedule and, I emphasise, “more importantly” because “although it came to light that you did in fact have all the papers in your bundle your instructing solicitor only told you that you had all the papers in bundle one during the course of the hearing”. The Judge said that this was “one of the reasons I had to adjourn”: p.73E-F. Pausing there, the use of the phrase “more importantly” reflects the Judge mis-remembering the terms of his judgment. His judgment made clear that his relative criticism of the Appellant was the other way around: the issues over the bundle “pale[d] into insignificance” compared to the schedule issue: see [24] of his judgment at [43] above.

Mr Mason sought to persuade the Judge that neither of these factual criticisms should sound in an order for costs and developed his arguments based on Barton and Woodward: p.73G-75B.

Mr Lyons submitted that the issue over the Appellant not chasing the Respondent for the schedule was a “minor thing” and that the “much more significant point” was the difficulties over the Appellant’s bundle. He therefore reinforced the Judge’s flawed recollection set out at [52] above. Mr Lyons contended that it was “six of one, half a dozen of the other on the last occasion” and that the Appellant was at fault in only seeking a two-day listing in the first place. On that basis he contended that there was no good reason why costs should not follow the event: p.75D-F.

The Judge gave a separate judgment on the costs issues raised.