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	England and Wales High Court (Senior Courts Costs Office) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Senior Courts Costs Office) Decisions >> Bufton v Hill [2002] EWHC 9024 (Costs) (7 May 2002) URL: http://www.bailii.org/ew/cases/EWHC/Costs/2002/9024.html Cite as: [2002] EWHC 9024 (Costs)

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Bufton v Hill
7 May 2002
Mr Justice Silber (Sitting with Assessors)

The Claimant (aged 17) was seriously injured in an accident on 22 September 1989. He was standing on a pavement with a friend when he was struck by a car driven by the Defendant. He suffered a severe head injury causing substantial brain damage. The action, which was conducted in the District Registry, was settled on 15 July 1996 upon terms which provided for the Defendant to pay the Claimants’ Costs.

On 22 July 1997 the Claimants’ solicitors provided an informal detail of costs. In the absence of agreement on costs, a formal bill was served on 31 June 1999 for a lower sum. The costs would be assessed in the District Registry.

The solicitor (a partner) acting for the Claimant had made a complaint of fraud against the District Judge on behalf of a former client and had opposed his appointment. The solicitor had appeared before the District Judge on several occasions and, in each matter, had been unsuccessful. On 19 May 1999 (soon after the introduction of CPR) the solicitor made an application to transfer the detailed assessment to the SCCO. On 15 July 1999 the District Judge

refused the application even though he stated that "it is abundantly clear from what [the solicitor] says today that he has no confidence that he can rely on me being fair to his firm in dealing with taxation matters."

On 15 June 1999 the Defendant’s solicitors issued an application to disallow costs in full or in part. That application was adjourned "to be determined by the assessment officer upon detailed assessment of the Claimant’s bill".

The Claimant’s solicitors appealed. There was a delay between July 1999 and the end of March 2002 while the Claimant’s solicitor obtained legal aid and a transcript of the hearing. On 6 October 2000 Mr Justice Newman allowed the appeal. The Defendant conceded that the matter should proceed by way of assessment in the SCCO and the application was not contested. The Judge ordered that the costs of the hearing before the District Judge and of the appeal should be costs in the detailed assessment. No criticism was made on the appeal by the Defendant of delay between 15 July 1999 and 6 October 2000.

In August 2001 the Deputy Costs Judge disallowed the Claimant’s costs of preparing the assessment and the assessment proceedings. The Judge considered CPR 47.8 (sanctions for failure to commence detailed assessment in time). The Defendant had made no application. The adjourned application by the Defendant to disallow costs played no part in the appeal.

The Judge also considered CPR 44.14 which applies where there has been misconduct by the receiving party under CPR 47.8(3). The court may penalise the receiving party, but the Defendant did not allege misconduct with the consequence that CPR 44.14 was not relevant.

The Judge held that CPR 47.8 did not apply to the costs of the detailed assessment but to the specific costs which are the subject of that assessment. CPR 47.8(3) needed to be read in conjunction with 47.8(2), although the sanctions were different. CPR 47.8 made sense only if it applied to the costs to be assessed rather than the costs of the assessment for two reasons:

It applied to a failure to commence in time. The actual costs of a detailed assessment hearing will take place after this failure. The rules would not allow the paying party to apply and have disallowed costs which the receiving party might reasonably incur at a later date.

The reference to CPR 44.14 in CPR 47.8(3) must be to the costs to be assessed. It reserved the right of a paying party who had not made an application under CPR 47.8(2) to challenge costs on the basis of prior misconduct or breach of the rules or court orders.

The Claimant submitted that the Deputy Costs Judge was wrong to rely upon a "wide discretion" and that he had failed to consider the principles on which he could deprive the Claimant of the costs of the assessment proceedings. The Judge accepted that CPR 47.18(1) meant that there was a rebuttable presumption that a receiving party was entitled to have his costs of a detailed assessment subject to the right of the Costs Judge to make some other order, having regard to all the circumstances. He concluded that the Deputy Costs Judge had relied upon his wide discretion and had ignored the presumption in favour of giving costs to the Claimant and the need thereafter to exercise a structured discretion.

The Judge reviewed the circumstances and factors considered by the Deputy Costs Judge. These included:

Offers to settle. None of the offers had been beaten. It was common ground (which the Deputy Costs Judge accepted) that the offers were of no relevance since the receiving party was an assisted person (CPR 47.19).

The delay in lodging the bill in the District Registry. Mr Justice Newman had concluded that the District Judge should have recused himself and that the Defendant should have recognised the strength and gravity of the impact of this.

The delay in submitting the bill. The amount of interest disallowed between 4 October 1997 and 3 April 2001 amounted to £11,200 or 28% of the amount allowed on detailed assessment. The period of disallowance included a period in respect of which no criticism was made.

The Judge referred to the threshold suggested by Brooke LJ in Tanfern Ltd v Camerons-McDonald (Practice Note) [2000] 1 WLR 1311 at paragraph 32 where he applied the statement of Lord Fraser in G v G (Minors: Custody Appeals) [1985] 1 WLR 647 at page 652. The Judge concluded that the decision to disallow the costs of drafting the bill and attending the assessment constituted a sufficient error of judgment as to require him to reverse it. It exceeded the general ambit within which a reasonable disagreement was possible. The Claimant’s solicitors had been penalised for delay by being deprived of a substantial sum of interest even in respect of a period when he was not at fault. He allowed the appeal.