Richardson Roofing Company Ltd v The Colman Partnership Ltd

Where a consent costs order provides for detailed assessment, disputes about its scope should ordinarily be dealt with by the costs judge. Any order giving directions must state clearly on its face what is required; a diffuse judgment cannot substitute for a proper order. “Costs incurred and thrown away by the adjournment” means costs wasted because of the adjournment. It does not include costs merely left unresolved, or all earlier costs because proceedings are never revived. A separate provision for other costs and a liberty to apply should be given effect. Later events do not enlarge the original costs clause.

Richardson, roofing contractors, were involved in litigation in which Colmans, architects, faced allegations of professional negligence. After a trial of preliminary issues was adjourned, the parties agreed a consent order requiring Richardson to pay Colmans’ costs incurred and thrown away by the adjournment, with detailed assessment to follow. The costs of striking out the pleadings were separately adjourned.

When the underlying proceedings were not revived, Colmans sought directions that their preparation and attendance costs be included in the assessment. HHJ Toulmin QC directed the costs judge to assess the costs by reference to paragraphs 84 to 90 of his judgment. Richardson appealed. The central issues were jurisdiction, the proper forum and form of directions, and the construction of the consent order.

The appeal was allowed unanimously. The order of HHJ Toulmin QC was discharged and replaced with no order.

1. Jurisdiction and procedure. The court had grave doubts whether the application was within the judge’s jurisdiction. The slip rule and the inherent power to clarify an order were not obviously applicable to a consent order whose wording reflected the parties’ contractual agreement. No accidental slip or omission was identified. The jurisdiction question had not been fully argued, so the court assumed jurisdiction only for present purposes.
2. Detailed assessment. Even if jurisdiction existed, the judge should not have exercised it. Where costs are not summarily assessed, the normal route under CPR rule 44.7 is detailed assessment by a costs officer. An issue of principle can be dealt with by the costs judge, who has the relevant specialist experience. Direct recourse to the judge could also bypass the applicable permission-to-appeal regime.
3. Form of order. The directions were impermissibly diffuse. A judgment gives reasons for an order; it is not the order itself. The order must stand on its face and make clear what the parties and the costs judge are required to do.
4. Construction. The phrase “costs incurred and thrown away by the adjournment” covered costs actually wasted by the adjournment. It did not cover costs simply left unaddressed, and the recoverable amount did not vary according to when assessment was sought or whether the trial was ultimately revived. The separate provision concerning costs of striking out the pleadings could not naturally be absorbed into paragraph 1. The liberty to apply was the mechanism for dealing with later events or non-events, including the failure of the trial to take place.

• Court of Appeal (Civil Division): allowed the appeal and discharged HHJ Toulmin QC’s order, replacing it with no order: [2009] EWCA Civ 839.
• Technology and Construction Court, Queen’s Bench Division: HHJ Toulmin QC directed the costs judge to conduct the assessment by reference to paragraphs 84 to 90 of his judgment, including the approach under CPR rule 47.18.