Orwin v British Coal Corporation

An appeal from a detailed costs assessment is not a rehearing. The appellate court should intervene where the costs judge was wrong, including through an error of principle, but should respect the judge’s evaluative assessment of hours and remuneration. Costs on the standard basis must be reasonable and proportionate. In assessing a brief fee, the costs judge may consider the opposing party’s costs, although those costs are not conclusive. A court may regard substantial preparation by experienced counsel as disproportionate and allow a single reasonable fee encompassing associated preparation work.

The claimant appealed, with permission, against a Deputy Costs Judge’s assessment of counsel’s fees in legally aided copyright proceedings. The underlying action concerned alleged infringement of copyright in technical drawings for conveyor equipment. The defendants’ strike-out application had occupied several hearings and had been dismissed.

Counsel claimed a brief fee of £15,500, together with separate fees for preparing a chronology and skeleton argument. The Deputy Costs Judge disallowed the separate items and allowed £5,000 for the brief fee. The appeal concerned the proper appellate approach to detailed assessment and whether the fee allowed was reasonable and proportionate.

1. Appeal dismissed. The Deputy Costs Judge had made no error of principle or other error justifying appellate intervention.
2. The proper approach was that stated in Mealing-McLeod v Common Professional Examination Board (unreported, 30 March 2000). An appeal against detailed assessment is not a rehearing. The appellate judge should not conduct a further trawl through the bill or adjust individual items merely because another assessment might have been reached. Intervention is justified where the decision was wrong, particularly on matters of principle or construction.
3. Under CPR 44.4(2) and CPR 44.5(1), the legally assisted claimant’s costs, including counsel’s brief fee, had to be reasonable in amount and proportionate to the matters in issue.
4. The Deputy Costs Judge was entitled to consider the fee incurred by the opposing party. Simpsons Motor Sales (London) Ltd v Hendon Corp (No 2) [1964] 3 AER 833 established that the other party’s fee was not an appropriate conclusive yardstick, but accepted that it was a factor of weight. The judge observed that this factor had become more important in modern summary and detailed assessment.
5. The relevant assessment was whether the total preparation effort and resulting brief fee were proportionate. Counsel had spent almost 12 days preparing for the application. The Deputy Costs Judge was entitled to conclude that this was disproportionate and that £5,000, including the chronology and skeleton argument, was appropriate.

The court therefore dismissed the appeal. Any order treating the appeal costs as costs covered by the client’s legal aid certificate would require representations from the Lord Chancellor’s Department.

• High Court (Chancery Division): On appeal from the decision of Deputy Costs Judge Hoffman dated 7 October 2002, the appeal was dismissed.