Ross v Bowbelle (Owners)

An order directing that a party receive costs “to be taxed” includes the costs of the taxation proceedings, unless the taxing officer makes another costs order. Under sections 17 and 18 of the Judgment Act 1838, interest on the aggregate costs allowed on taxation runs from the date of the original costs order. It does not run only from later orders made during taxation or from completion of taxation. The rule applies although some taxation costs may not have been incurred when the original order was made. It reflects the established incipitur rule and encourages prompt payment, agreement and taxation of costs.

The claimant survived the collision between the Marchioness and the Bowbelle and recovered damages for post-traumatic stress disorder, together with her costs to be taxed. Her bill included substantial steering-committee costs incurred in connection with the litigation.

During taxation, the Chief Taxing Master made several costs orders and later issued a final taxation certificate. The Admiralty Registrar held that interest on the taxation costs ran only from the dates of those later orders. Clarke J dismissed the claimant’s appeal.

The claimant appealed, contending that interest ran from the original costs order of 18 June 1991. The central issue was whether that order included the costs of taxation.

Lord Justice Leggatt, with whom Lord Justices Saville and Pill agreed, allowed the appeal.

1. The words directing that the defendants pay the claimant’s costs “to be taxed” included the costs of taxation. Under Order 62, rule 1(4), a reference to costs in relation to taxation proceedings includes costs of, and incidental to, those proceedings. The rule would be inept if it merely stated that an order specifically made for taxation costs included those same costs.

2. Order 62, rule 27(1) did not require or authorise the Taxing Master to make a fresh order in favour of the party whose bill was taxed. That party already had the relevant costs order. Rule 27(2) allowed a different order where appropriate, but did not alter the ordinary consequence of the original order.

3. The historical authorities and sections 17 and 18 of the Judgment Act 1838 supported the incipitur rule. A costs order has the effect of a judgment, and the costs may be ascertained by the taxing officer without a further order to pay. Costs awarded generally also extend to the costs necessary to work out the order, including taxation.

4. Hunt v Douglas Roofing [1990] 1 A.C. 398 was binding and had applied the incipitur rule to the aggregate of the debt or damages and costs allowed on taxation. It was not open to treat that decision as per incuriam concerning taxation costs. The fact that some such costs were incurred later did not make the result remarkable or unjust.

5. The order of 18 June 1991 was therefore the order awarding the claimant her taxation costs, save for the distinct order in the defendants’ favour. Interest ran from that date. The appeal was allowed with costs here and below, and leave to appeal to the House of Lords was refused.

• Court of Appeal: Allowed the claimant’s appeal and held that interest on the taxation costs ran from the original costs order.
• High Court (Clarke J): On 14 February 1996, dismissed the claimant’s appeal from the Admiralty Registrar.
• Admiralty Court: The Admiralty Registrar held on 10 November 1995 that interest ran from the dates of the Taxing Master’s orders.