Brown v Edwards

A failure to give a party a fair opportunity to address the amount of costs at a summary assessment is a due-process error and is ordinarily justiciable and appealable. In an exceptional case, permission may nevertheless be refused where it is certain that a fresh summary or detailed assessment would produce a figure above the existing order. If success could not reduce liability, and the appeal could expose the applicant to further costs or a higher award, granting permission would serve no practical purpose. The court may reach that conclusion by making cautious, provisional assessments of the bill.

The applicant had brought proceedings in person against his former solicitors. A district judge found against him, and his appeal to His Honour Judge Hallgarten QC in January 2001 also failed. At the end of that appeal, the judge summarily assessed the solicitors’ costs at £8,000, after counsel had reduced a bill of slightly over £12,000 to slightly under £12,000.

The applicant later sought permission to appeal on costs. The Court of Appeal was concerned that he had not been expressly invited to address the amount claimed. The costs issue was adjourned so that the transcript could be obtained and the bill considered. A bankruptcy petition founded on the £8,000 costs order was also adjourned pending the application. The central issue was whether permission should be granted despite the procedural failure, given the likelihood that a fresh assessment would increase rather than reduce the liability.

Lord Justice Sedley dismissed the application and refused permission to appeal on costs.

1. The judge below had failed to give the applicant an express opportunity to address the amount of costs claimed. The applicant’s interventions had concerned the merits of his failed appeal, not the costs assessment. This was a strongly arguable failure of due process and was capable of being justiciable and appealable.
2. In deciding whether permission should nevertheless be granted, the court should not merely speculate about the possible result of a fresh assessment. It should ask whether it is certain that, after hearing the applicant, a fresh summary or detailed assessment would award more than the existing £8,000 order. If that outcome is inevitable, no sufficient purpose is served by granting permission.
3. The applicant’s alleged concession in the bankruptcy proceedings did not establish that the bill was properly assessable below £8,000. Nor was the disputed claim for reports, on its face, fraudulent. It could instead be an inflated claim whose reasonableness would be examined on detailed assessment.
4. Even allowing substantial notional reductions for the reports, document attendances, attendance and travel at the appeal hearing, counsel’s fee and VAT, the bill could not conceivably fall below £8,000. The court therefore concluded that success on the procedural issue could not reduce the applicant’s liability and might expose him to a higher assessment and further costs.
5. This was one of the rare cases in which permission should be refused notwithstanding a serious procedural error, because an appeal would be detrimental to the applicant whatever its outcome. The application was dismissed.

1. Court of Appeal (Civil Division): On 18 October 2001, Lord Justice Sedley refused permission to appeal on costs and dismissed the application: [2001] EWCA Civ 1617.
2. County Court appeal: His Honour Judge Hallgarten QC dismissed the applicant’s appeal in January 2001 and summarily assessed costs at £8,000.
3. Underlying proceedings: A district judge had made an adverse finding against the applicant in his action against his former solicitors.