Mahmood & Anor v Penrose & Ors

Where summary assessment of costs is appropriate, only the judge who awarded those costs may undertake the assessment. If that judge cannot assess them on the day, directions must be given for a further hearing before the same judge.

A different judge lacks power to make the summary assessment, even where the costs have already been awarded and only their quantification and manner of payment remain outstanding. The appropriate alternative is detailed assessment.

The claimants appealed against a costs order made by His Honour Judge Knight QC in the Central London County Court. Miss Recorder Worrall QC had adjourned the trial, ordered the claimants to pay the defendants’ costs of the adjournment application and trial bundle, and referred quantification and the manner of payment to the trial judge.

Judge Knight later summarily assessed those costs at £4,623.63 in the claimants’ absence. The claimants accepted their liability for the costs but challenged his power to assess costs awarded by another judge. The issue was whether the requirement in section 13.8 of the Practice Direction relating to costs at Part 44 of the Civil Procedure Rules permitted that assessment.

1. Appeal allowed unanimously. Sir Swinton Thomas, with whom Mantell LJ agreed, held that Judge Knight lacked power to make a summary assessment of costs awarded at the earlier hearing by Miss Recorder Worrall.

2. Section 13.8 of the Practice Direction relating to costs at Part 44 of the Civil Procedure Rules requires any deferred summary assessment to take place at a further hearing before the same judge who awarded the costs. The requirement reflects the principle that the judge who heard the matter, and therefore knows about it, is the person properly placed to undertake a summary assessment.

3. The Recorder had already ordered the claimants to pay the relevant costs. She referred only their quantification and manner of payment to the trial judge. Although Judge Knight understandably believed that a wider issue had been referred to him, he could not summarily assess costs awarded by another judge.

4. The claimants did not dispute their liability for the costs. The defect concerned only the method of assessment. The Court therefore set aside the summary assessment of the two disputed items and ordered a detailed assessment.

5. There was generally no order for the costs of the appeal. The appellants were, however, ordered to pay the respondents’ costs incurred during the application for permission to appeal and costs incurred after the Part 36 offer dated 23 November 2001, subject to detailed assessment.

1. Court of Appeal (Civil Division): The appeal was allowed. The summary assessment was set aside in relation to the disputed items, and detailed assessment was ordered.

2. Central London County Court: His Honour Judge Knight QC summarily assessed at £4,623.63 costs previously awarded by Miss Recorder Worrall QC. The Court of Appeal held that he lacked power to make that summary assessment.

3. Earlier costs hearing: Miss Recorder Worrall QC adjourned the trial, ordered the claimants to pay the relevant costs, and referred their quantification and manner of payment to the trial judge.