Drew v Whitbread

A costs judge assessing costs on the standard basis must give effect to the costs order and cannot vary or rescind it. The judge may nevertheless consider all relevant circumstances, including whether a multi-track claim was in reality suitable for the fast track. A paying party is not generally precluded from raising an assessment issue merely because it was not raised when the costs order was made.

The costs judge must assess reasonable and proportionate costs rather than simply substitute the fast-track regime. Where a trial lasted two days, the judge must consider whether that duration was reasonably necessary before limiting recovery to fixed fast-track trial costs. Any relevant finding already made by the trial judge remains binding.

The claimant recovered £9,291.56 in a personal injury action allocated to the multi-track. The Recorder ordered the defendant to pay costs assessed on the standard basis. On detailed assessment, the regional costs judge concluded that the action should have been pursued as a fast-track case and assessed the trial costs accordingly. Her decision was influenced by an inaccurate note suggesting that the Recorder had found that the claimant exaggerated his claim.

His Honour Judge Leeming QC upheld that decision. The claimant appealed, arguing that the costs judge had effectively overridden the Recorder’s order, that the fast-track argument should have been raised before the Recorder, and that the inaccurate note affected the assessment. The central issues concerned the relationship between the making of a costs order under the Civil Procedure Rules 1998 and the subsequent assessment of reasonable and proportionate costs.

1. Appeal allowed and assessment remitted. The costs judge was entitled to consider whether the action was in reality suitable for the fast track, despite the paying party’s failure to raise that issue before the Recorder. She was not, however, entitled simply to assess the trial costs as though the action had been allocated to the fast track. That approach effectively rescinded the Recorder’s order for standard-basis costs.

2. Rules 44.3 and 44.5 perform different but complementary functions. Rule 44.3 governs the court’s decision about what costs order to make. It permits special orders, including an order limiting trial costs to fast-track costs. Rule 44.5 governs the later assessment of the amount payable. A costs judge must give effect to the existing order, but must also consider all the circumstances when deciding whether costs were reasonably and proportionately incurred and reasonable in amount.

3. There is no general rule, founded on Henderson v Henderson or otherwise, that failure to raise a matter before the judge making the costs order prevents it being raised on assessment. Aaron v Shelton [2004] EWHC 1162 was too prescriptive insofar as it stated such a principle. A matter should nevertheless be raised before the trial judge where a special order is sought or where deciding it later would require the costs judge effectively to retry the action.

4. A finding made by the trial judge on a relevant factor binds the costs judge. In the absence of such a finding, the costs judge may have additional material and may consider conduct, exaggeration and the manner in which the litigation should reasonably have been pursued. The assessment must avoid both overriding the costs order and counting the same misconduct twice.

5. The permissible inquiry was whether, taking the possible suitability of the fast track into account, the claimed costs were reasonable and proportionate on the standard basis. Since the trial had lasted two days, the costs judge had to consider whether the second day was reasonably necessary, including whether it resulted from the defendant’s vigorous contest of liability. The inaccurate note concerning exaggeration may have influenced her decision. The matter was therefore remitted for reconsideration in accordance with the Court of Appeal’s judgment.

1. Court of Appeal (Civil Division): The appeal was allowed and the detailed assessment was remitted to the costs judge for reconsideration in accordance with [2010] EWCA Civ 53.

2. Exeter County Court, His Honour Judge Leeming QC: The claimant’s appeal was dismissed. The judge held that the costs judge had acted within her assessment powers and was not precluded from considering fast-track costs.

3. Exeter County Court, District Judge Wainwright: On detailed assessment, the costs judge assessed the costs from a specified date as though the claim had proceeded on the fast track.

4. Trial before the Recorder: The claimant obtained damages of £9,291.56 and an order that the defendant pay costs assessed on the standard basis.