Botham v Niazi

Failure to commence detailed assessment within the prescribed time does not automatically justify disallowing the receiving party’s costs. Under CPR rules 47.7 and 47.8, the ordinary consequence of late commencement is loss of some or all interest, unless the delay amounts to misconduct engaging rule 44.14. The court must assess the whole circumstances, including any agreed extension, the parties’ conduct, prejudice, responsibility for missing evidence and proportionality. Disallowance of costs is a serious sanction and should not be imposed where a fair assessment remains possible and the delay is not attributable solely to the receiving party. A bill of costs may be adapted to reflect a global settlement with the receiving solicitors, provided it respects the indemnity principle. Separate proceedings may be addressed in one bill where costs were incurred jointly, with apportionment left to the costs judge.

Botham and Lamb brought defamation proceedings against Niazi in 1994. Judgment was entered for Niazi after a trial in 1996. The costs orders required the claimants to pay Niazi’s costs, subject to specified costs payable by Niazi in the Botham action and interlocutory matters.

The parties agreed an extension of time to pursue negotiations. Detailed assessment proceedings were not commenced until 2003. The claimants applied to stay or strike out the assessment, or to disallow Niazi’s costs under CPR rule 44.14(1), relying on delay, alleged prejudice and defects in the bill. The central issues were whether the delay amounted to misconduct and whether the bill complied with the rules.

1. Delay. The defendant had breached the requirement, formerly in RSC Order 62 and now in CPR rule 47.7, to commence detailed assessment within three months. CPR rule 47.8(3) ordinarily permits disallowance of interest for late commencement. It does not itself authorise disallowance of costs, except through the separate misconduct power in rule 44.14.
2. The agreed general extension did not amount to a complete waiver of the original breach. It was, however, highly material to whether the subsequent delay amounted to misconduct. The extension was agreed to facilitate settlement, negotiations remained realistically contemplated until at least 2000, and the claimants never exercised their rights under rule 47.8(1). Responsibility for the overall position was therefore shared.
3. The delay had made assessment more difficult, particularly because the former solicitors’ files might be unavailable. It had not, however, made a fair assessment impossible. Any loss of those files was not shown to be attributable to the defendant, and the claimants’ solicitors had been involved in the negotiations and could reasonably have secured the files earlier.
4. Disallowance of all or part of the defendant’s costs would be disproportionate. The defendant had already accepted that interest would not run. The assessment might produce a substantial net benefit, and the costs judge could resolve the disputed allocation of work, including the justification issue. The claimants’ application to disallow the costs was therefore rejected.
5. Bill of costs. The amended certificate, identifying the global amount paid by the defendant to his former solicitors, respected the indemnity principle. The bill could properly set out the underlying work and leave the costs judge to apply any appropriate reduction to the global amount. A single bill covering the two actions was also a sensible and valid approach where much of the work was common to both. Any technical non-compliance would not justify a misconduct sanction.
6. The claimants’ application was dismissed. The assessment proceedings were permitted to continue.

Not an appeal. The judgment concerned an application arising from concluded defamation proceedings. The earlier proceedings and their costs orders were described in the judgment, but no citation for the trial decision was provided.