Ellis v Ellis

On an indemnity costs assessment, proportionality does not arise. The receiving party must still show that costs were reasonably incurred and reasonable in amount. Any doubt about reasonableness is resolved in favour of the receiving party.

Permission to appeal requires a realistic prospect of success. Serious allegations concerning litigation conduct, fraud or abuse of process require evidence. Unsupported assertions, without a proper request for adjournment or cross-examination, cannot establish an arguable challenge to the assessment.

The applicant sought permission to appeal against a Deputy Master’s assessment of costs arising from a settled probate action. Under the settlement order, he had agreed to pay the respondent’s costs on the indemnity basis. The Deputy Master assessed those costs at £85,533.31.

The proposed appeal alleged that the respondent and her solicitors had acted fraudulently or unreasonably, and that evidence concerning the deceased’s testamentary capacity had been suppressed. The central issue was whether those allegations provided any realistic basis for challenging the assessment.

1. Permission refused. The proposed appeal had no realistic prospect of success.
2. As the costs order was made on the indemnity basis, proportionality was irrelevant under CPR 44.4. The costs nevertheless had to be reasonably incurred and reasonable in amount. Under CPR 44.4(3), any doubt about reasonableness had to be resolved in favour of the receiving party.
3. The Deputy Master had considered the individual items of account. There was no identifiable basis for saying that he had allowed costs outside the range of fees properly chargeable. The applicant did not establish that work had not been done, that time spent was excessive, or that charging rates were unreasonable.
4. The wider allegations of fraud, conspiracy and abuse of process were baseless on the evidence presented. Allegations that the respondent had suppressed evidence or never intended to proceed to trial were unsupported. The attendance-allowance application relied upon by the applicant had been disclosed before settlement and could not have influenced his decision to settle.
5. A costs assessment must be conducted on the evidence before the assessing judge. Serious allegations cannot be advanced without supporting evidence. The applicant had not sought an adjournment to obtain evidence or facilitate cross-examination.
6. The application was wholly without merit and permission to appeal was refused.

1. High Court (Chancery Division): permission to appeal from the Deputy Master’s costs assessment was refused.
2. Supreme Court Costs Office: the Deputy Master assessed the respondent’s costs at £85,533.31 following a consent order requiring payment on the indemnity basis.