IXIS Corporate & Investment Bank v West LB Ag

Costs should be assessed in a manner proportionate to the issues. Where the sums claimed are substantial and the costs schedules involve numerous parties, fee earners and counsel, the court must consider duplication and the reasonableness and proportionality of the work undertaken. A summary assessment is inappropriate where the available material makes that exercise difficult or impossible. The court may nevertheless adopt different approaches for different parties, including summary assessment of a modest and sufficiently separable bill and interim payments on account pending immediate detailed assessment.

The court determined the costs arising from West LB’s unsuccessful application to consolidate the proceedings with two other actions. West LB was ordered to pay the costs on the standard basis. The parties disputed whether the costs should be assessed summarily or in detail. The schedules exceeded £300,000 in aggregate, with materially different amounts claimed by the parties. The central issue was whether the court could properly discharge its duties under CPR 44.4(2) by summary assessment.

1. The court rejected summary assessment for IXIS, Terra Firma and Nomura. The schedules involved substantial sums, numerous solicitors and counsel, and several parties. A proper assessment required consideration of possible duplication and whether the work undertaken by each party was reasonable and proportionate to the consolidation application.
2. The applicable task was to assess costs proportionately and to resolve doubts about whether costs were reasonably incurred or reasonable and proportionate in amount in favour of the paying party, pursuant to CPR 44.4(2).
3. CIBC’s costs were materially lower and, in the circumstances, sufficiently separable for summary assessment. The court directed that any specific submissions by West LB be made in writing before the summary assessment was issued. CIBC’s costs could still be challenged in a later detailed assessment concerning other costs.
4. For the remaining parties, the court ordered interim payments pending an immediate detailed assessment under CPR Part 47.1. The payments were tailored rather than calculated by a uniform percentage: 50 per cent of IXIS’s claimed costs, £70,000 for Terra Firma, and £66,000 for Nomura.
5. There was to be an immediate detailed assessment for all parties other than CIBC.