Pepin v Watts & Anor

A court may make a summary assessment of a defendant’s costs without separate evidence of the precise internal arrangement between each represented defendant and the solicitor who incurred the costs. A costs statement is not misleading merely because the costs were incurred by a solicitor acting for a police force rather than personally by a police constable, provided there is no evidence of irregularity or improper enrichment.

An extension of time may be refused where the matters relied on were available to the earlier court and the proposed appeal has no arguable merit.

The applicant brought a defamation claim against a police constable and the Chief Constable of Surrey. Following an interlocutory order for further particulars, Sullivan J dismissed the applicant’s appeal and made a costs order. Klevan J later refused permission to appeal and summarily assessed further costs.

More than two years later, the applicant sought an extension of time and permission to appeal Klevan J’s costs order. He contended that the Force Solicitor’s statement of costs was false or misleading because there was no evidence that the constable was personally liable for the costs, and that summary assessment was inappropriate. The central issue was whether those matters disclosed an arguable irregularity in the costs order.

1. Application refused. Pill LJ held that there was no arguable ground for an appeal against Klevan J’s costs order. The application was also more than two years late, and an extension of time would not have been granted.

2. The judge had been entitled to summarily assess the defendants’ costs. The statement was headed as a statement of the defendants’ costs and made clear that the Force Solicitor had incurred them. It was not misleading merely because the costs were incurred through the Force Solicitor rather than directly by Constable Watts.

3. There was no requirement, before making a summary assessment, for evidence of the precise arrangement between the constable and the Force Solicitor. In a claim arising from the constable’s service, it was proper to assume, absent evidence to the contrary, that the constable could choose representation by the Force Solicitor and that the solicitor could incur and recover the resulting costs.

4. Pill LJ added that a costs order could not properly create a personal windfall for the constable. If evidence showed that the payment did not go to the Force Solicitor but enriched the officer, issues might arise between the officer and the police force, and possibly in the public sphere. There was, however, no evidence of that kind or of any irregularity in this case.

5. The material now relied upon had been before Klevan J and the costs issue had been argued then. The earlier appeal against Sullivan J’s order had already been dealt with. The present application was therefore refused on its merits.

• Court of Appeal (Civil Division) — In this decision, Pill LJ refused the extension of time and permission to appeal: [2002] EWCA Civ 958.

• Court of Appeal (Civil Division) — On 4 October 2000, Waller and Johnathan Parker LJJ dismissed the appeal concerning Sullivan J’s costs order and dismissed a renewed application for permission to appeal against the striking-out of the defamation claim.

• Queen’s Bench Division — Klevan J refused permission to appeal Sullivan J’s order and summarily assessed the respondents’ costs. That costs order was the subject of the present application.

• Queen’s Bench Division — Sullivan J dismissed the applicant’s appeal from Master Rose’s order for further particulars and ordered the applicant to pay the defendants’ costs.

• Queen’s Bench Division — Master Rose ordered further particulars of the defamation claim and ordered the applicant to pay the costs of that hearing.