Boyd & Hutchinson v Joseph

An assessment of costs begun after the Civil Procedure Rules came into force is governed procedurally by the CPR, even where the underlying work predates the change. Earlier work remains protected by the transitional provisions.

A solicitor acting in person may recover professional costs only where the time spent on the litigation was time that could otherwise have been used in the solicitor’s practice for reward. Holding a practising certificate or occasionally giving free advice is insufficient. Where financial loss is disputed, the issue must be determined on evidence.

An hourly rate must reflect the solicitor’s actual costs where those costs materially differ from average local costs. A broad-brush estimate unsupported by evidence is unsafe.

This was an appeal by the defendants from rulings made by Costs Judge Wright during the detailed assessment of Jennifer Joseph’s costs. The costs arose from earlier taxation proceedings concerning the defendants’ solicitor’s bill.

The appeal concerned the applicable procedural regime, whether Miss Joseph qualified for the treatment afforded to a solicitor litigant rather than a litigant in person, whether she had suffered financial loss, the appropriate hourly rate, and allowances for documentary work.

The central questions were whether the CPR or RSC Order 62 governed the assessment, and whether the evidence justified the costs claimed.

1. Applicable regime. The assessment of Miss Joseph’s costs was a new taxation commencing after 26 April 1999. CPR 51PD.18(1) and CPR 48PD.57.7 therefore required the assessment to proceed under the CPR. CPR 48PD.57.6 concerned steps challenging an earlier taxation and did not preserve RSC Order 62 for this assessment. Earlier costs remained recoverable if they would have been allowed under the former rules.
2. Solicitor litigant. Under RSC Order 62, r 18(6), and the principle recognised in London Scottish Benefit Society v Chorley [1884] 13 QBD 872, the relevant criterion was not merely regulatory status. The solicitor had to show that the time spent on personal litigation was time during which she could otherwise have pursued remunerated professional work. Miss Joseph’s limited, unpaid practice under the indemnity rules did not establish that criterion. She was therefore to be treated as a litigant in person for the relevant period.
3. CPR treatment. CPR 48.6(6)(b), read with Costs Practice Direction 52.5, distinguished between a solicitor acting in person in her own time and a solicitor represented by her firm or by herself in the firm name. The latter may fall outside the litigant-in-person restrictions. Since Miss Joseph failed the corresponding substantive criterion, the court did not need to decide whether paragraph 52.5 was ultra vires.
4. The issue whether Miss Joseph had suffered financial loss was remitted to the Costs Judge for determination on evidence.
5. Hourly rate. The Costs Judge’s £120 rate was unsupported by evidence and amounted to guesswork. An hourly rate of £50 was reasonable and appropriate for the period before 1 April 1996.
6. The challenges to documentary items 104, 114 and 140 failed. The Costs Judge had made a permissible broad-brush assessment and had committed no error of principle.

The appeal was allowed on issues 1 to 3. The issues of financial loss and the appropriate hourly rate were remitted to the Costs Judge.

• High Court (Chancery Division): appeal allowed on the applicable costs regime, solicitor-litigant status and related financial-loss issue; financial loss and the appropriate hourly rate remitted to the Costs Judge. Challenges to documentary items 104, 114 and 140 failed.