Mahmood & Anor v Penrose & Ors

On an application for permission to appeal a costs order, the court may impose conditions, including payment into court, to control the financial risk of a further appeal. The court must keep litigation proportionate and should avoid permitting further costs where the potential benefit may be less than the expense. A jurisdictional objection to summary assessment may justify conditional permission even where liability for costs is clear. A party’s failure to attend the costs hearing and raise available objections is relevant to whether unconditional permission should be granted.

This was a without-notice application by the Mahmoods for permission to appeal costs decisions in the Central London County Court. After an adjournment, Miss Recorder Worrall summarily assessed part of the wasted costs and reserved other costs. On 19 December 2000, His Honour Judge Knight summarily assessed the reserved costs and ordered detailed assessment of the trial costs. The Mahmoods challenged both the amount and the judge’s jurisdiction to make a summary assessment under Rule 13.8. The central issue was whether permission should be granted and, if so, on what conditions.

Lord Justice Mance granted permission to appeal subject to a condition requiring payment into court, but did not finally determine the jurisdictional issue.

1. The revised costs schedules were mathematically coherent. The increase from the earlier figures was principally explained by updated solicitors’ costs for attendance on the adjournment date. Any issue concerning counsel’s preparation for trial could be addressed in the detailed assessment of the trial costs.
2. The order of Miss Recorder Worrall was capable of differing interpretations. It was arguable that she had summarily assessed one head of wasted costs while reserving the trial-bundle and application costs for the trial judge. It was also possible that she had reserved the whole question of those costs. The absence of a transcript prevented the issue from being resolved at this stage.
3. Under Rule 13.8 of the Civil Procedure Rules 1998, the Mahmoods had an arguable point that the judge who had not conducted the relevant hearing might not have been the appropriate judge to make a summary assessment. Summary assessment was intended for the costs of a hearing which had just occurred, including a fast-track trial or another hearing lasting no more than one day, and was not ordinarily appropriate for trial costs.
4. The court had to keep the matter in proportion. Further hearings would generate additional costs, while the possible benefit of the appeal might be smaller than those costs. The Mahmoods had received ample notice and an opportunity to challenge the schedules and attend the judgment hearing, but had not done so. That conduct justified refusing unconditional permission.
5. Permission to appeal was therefore granted subject to payment of £1,750 into court within 14 days. If payment was not made, permission would not take effect. There was no order for costs.

• Central London County Court. Miss Recorder Worrall summarily assessed £1,584.72 of wasted costs on 22 September 2000 and reserved other costs. On 19 December 2000, His Honour Judge Knight summarily assessed the reserved costs and ordered detailed assessment of the trial costs.
• Court of Appeal (Civil Division). Lord Justice Mance granted permission to appeal subject to payment of £1,750 into court within 14 days. No order for costs was made.