Balcombe Group Plc v London Developement Agency

The court has a wide discretion to appoint an assessor under CPR 35.15. The discretion must be exercised consistently with the overriding objective, including proportionality. The court should weigh the likely benefit of an assessor against the additional cost, the amount at stake and the risk of delay. Appointment may be appropriate where proceedings are technically complex or concern activity unfamiliar to the court. It is generally unnecessary where the dispute involves the ordinary evaluation of detailed claims for reasonableness and recoverability, even if a statutory compensation scheme is relevant. In the TCC, appointment is exceptional rather than routine.

The defendant applied under CPR 35.15 for an assessor to assist at the forthcoming quantum trial. The claimant’s claim arose from professional services connected with land acquisition for the Olympic Park. Liability had been addressed in an earlier judgment, leaving the assessment of approximately £600,000 in dispute.

The quantum trial would examine 20 sample files from more than 100 and extrapolate the result by a pro-rata exercise. The defendant argued that an assessor familiar with the Compensation Code would assist the court and promote settlement. The central issue was whether the likely assistance justified the additional cost and procedural complexity.

1. Application refused. The court declined to appoint an assessor under CPR 35.15 because the appointment would be disproportionate and unnecessary.
2. The discretion under CPR 35.15 must be exercised in light of the overriding objective in CPR 1.1. The court should consider the cost imposed on the parties, the amount at stake and the potential benefit of the assessor. An additional layer of cost is justified only where appointment is in the interests of justice.
3. An assessor may be appropriate where the subject matter is technically complex or involves a particular activity unfamiliar to the court. The authorities concerning nautical collision cases illustrated that possible use. Appointment may also arise in detailed or complex costs disputes, although the funding position may differ.
4. Where an assessor is appointed, the questions put and the answers given should be shared with the parties and addressed in submissions. That process may generate additional cost and delay through post-hearing exchanges.
5. In TCC proceedings, appointment has in recent years been the exception rather than the rule. The forthcoming trial concerned the detailed evaluation of individual charges and whether they were reasonable in all the circumstances. That was an ordinary function of the TCC and did not require specialist assistance.
6. The Compensation Code did not alter the conclusion. Once the Code had been explained, the trial judge could determine the reasonableness and recoverability of each item, including the defendant’s arguments based on the Code. The possibility that an assessor might assist settlement did not justify appointment, particularly after an unsuccessful mediation.
7. The parties were therefore not required to bear the costs of an assessor.