Weston & Anor v Weston & Ors

The court may refuse or regulate a very late detailed assessment of costs where the delay, evidential difficulties and practical consequences make continuation unfair or disproportionate. The discretion must be exercised after considering evidence and submissions about all parties’ costs, the reasons for delay, prejudice, proportionality, the amount at stake and the public interest in finality.

Where a party cannot effectively prepare its own assessment, the court must consider whether allowing other parties to assess their costs would produce a materially unfair result. A pragmatic conditional order may be appropriate where it best approximates the original costs scheme and minimises prejudice.

The proceedings arose from a family partnership dispute begun in 1963. Orders made in 1984 required costs to be taxed and paid from a fund before distribution. No party commenced the required taxation proceedings within the prescribed period, and the parties continued negotiations for many years.

In 2004 Master Bowman ordered that the parties’ costs be assessed on an indemnity basis. Mr Dennis Weston appealed against refusal to join him as a claimant. Mr Glyn Weston appealed against the costs order, contending that the extreme delay and loss of documentation made assessment impracticable and unfair. The court therefore considered the joinder application and the proper exercise of the discretion concerning long-delayed costs assessment.

1. Mr Dennis Weston’s appeal was dismissed. Addition or substitution under CPR 19.1 was not desirable because he was aligned with an existing party, would bring nothing new to the dispute, and joinder would impede the need to bring the litigation to an end.

2. The costs appeal was allowed to the extent that Master Bowman had failed to consider evidence and submissions concerning the costs incurred by all parties. Those matters were relevant to the discretion. The absence of any reference to Mr Glyn Weston’s inability to prepare an effective assessment, and to proportionality, showed that the decision had been approached incorrectly.

3. The court held that the powers under CPR 44.14 were available. Each party seeking payment under the 1984 Orders had failed to comply with the applicable requirement to commence assessment within three months. The court could therefore disallow costs or make other appropriate costs orders.

4. In deciding whether assessment should proceed so long out of time, relevant considerations included the extreme delay, the parties’ respective responsibility, documentary difficulties, the ability of each party to proceed, prejudice, the amount and relative financial significance of the dispute, proportionality, the possibility of a pragmatic settlement, and the public interest in finality. Extreme delay called for justification for allowing assessment to proceed.

5. The court considered that an entirely prohibitory order would otherwise have been justified. However, the 2002 discussions and evidence of an earlier taxation supported a conditional solution. Subject to further submissions, the intended order was that the defendants could proceed with assessment only if they lodged statements consenting to payment of £12,000 to Mr Glyn Weston from the fund when the defendants’ assessed costs were paid, before distribution.

• High Court (Chancery Division): Mr Dennis Weston’s appeal against refusal to join him was dismissed. Mr Glyn Weston’s appeal concerning the delayed costs assessment was allowed in part and a conditional replacement order was proposed, subject to further submissions.
• Master Bowman: ordered assessment of the parties’ costs on an indemnity basis under CPR 44.14.