KA-2025-000012 - [2025] EWHC 2341 (KB)

Was the learned judge entitled to award costs against the Appellants?

As His Honour Judge Simpkiss erred in concluding that the Appellants had “raised this point [under the LSA] and you lost”, the award of costs made against the Appellants cannot stand. The award also falls to be quashed because the sum awarded exceeded by some considerable margin the costs that the learned judge was entitled to award given that this case was allocated to the Intermediate Track. That argument was not made to the learned judge, but I accept that the matter can be raised on appeal as it goes to the power of the judge at first instance.

At the time of the hearing before His Honour Judge Simpkiss the case had provisionally been allocated to the Intermediate Track: the case was therefore one which fell within Section VII for the purposes of CPR Part 45. Accordingly, unless “exceptional circumstances” applied, a cost cap had to be applied to any award.

CPR Part 45.8 provides that:

“Where, in any claim to which Section VI, Section VII or Section VIII of this Part applies, the court makes an order for the costs of a pre-action or interim application, the costs which a party may be allowed are those set out in Table 1, together with any appropriate court fee.”

Table 1 provides that the fee of £333 is recoverable for a claim which “would normally be or is assigned to complexity band 4 of Table 12; or (b) to which Table 14 or Table 15 applies”, along with the application fee of £303.

The Appellants submitted to this Court that no fixed costs should have been payable at all because the Respondent had not submitted a completed Precedent U form 24 hours before the hearing: this document is called for pursuant to CPR Part 45.63(2). I reject this argument. The Respondent did not use that particular form, but did produce a document that set out their costs. In substance, therefore, the Respondent had complied with the rule, and the Appellants were not disadvantaged in any way by the form in which the costs were presented. Accordingly, the Court did not err in relying on the document provided by the Respondent.

CPR 45.9 provides that the cost cap can be removed :

“(1)

. . . where there are exceptional circumstances making it appropriate to do so.

(2)

If the criteria in paragraph (1) are met, the court may—

(a)summarily assess the costs; or

(b)make an order for the costs to be subject to detailed assessment”.

There was no indication in the judgment, or in the transcript of the hearing, that the learned judge considered that there were “exceptional circumstances” in this case. Moreover, if the “exceptional circumstances” were the arguments about the proper interpretation of the LSA then they would not have justified an award of costs above the cap in any event, for the reasons given above.

Accordingly, the learned judge made an error in ordering the Appellants to pay the costs of the application to lift the stay (which was essentially the costs of Counsel) in the sum of £10,653. Rather, the only award that His Honour Judge Simpkiss could have made pursuant to the regime for Intermediate Track cases would have been £333 plus the appropriate court fee of £303.