Drake & Anor v Fripp

On an appeal listed for one day or less, costs should ordinarily be summarily assessed under para 14.1 of Practice Direction 52, unless there is good reason for detailed assessment. The same proportionality approach applies to summary and detailed assessment. The court first considers the overall base costs. If they are disproportionate, an item is allowed only if necessarily incurred and then only in a reasonable amount. Inter partes costs do not automatically include the cost of instructing two counsel. Agreed success fees require vigilant scrutiny. Prospects of success must be assessed without hindsight, and a maximum uplift is not presumed reasonable.

This was a costs judgment following the Court of Appeal’s dismissal of a boundary-dispute appeal in [2011] EWCA Civ 1279. The appellants accepted responsibility for the respondent’s costs, but both parties invited the court to direct detailed assessment. The court therefore considered whether the appeal costs should instead be summarily assessed under para 14.1 of Practice Direction 52. It also had to assess the proportionality, reasonableness and necessity of solicitors’ costs, counsel’s fees and a conditional-fee uplift.

1. Disposition. The Court of Appeal summarily assessed the respondent’s costs of the appeal at £29,376. It rejected the request for detailed assessment.
2. Summary assessment. Para 14.1 of Practice Direction 52 establishes summary assessment as the ordinary course for an appeal listed for one day or less, unless good reasons justify a different approach. The fact that costs below were already subject to detailed assessment, or that counsel’s fees included an uplift, did not provide such a reason.
3. Proportionality. Summary assessment should use the same approach as detailed assessment. The court first considers the overall base figure. If it is proportionate, reasonable sums may be allowed for items reasonably incurred. If it is disproportionate, each item must be necessarily incurred and allowed only in a reasonable amount. That approach was taken from Home Office v Lownds (Practice Note) [2002] EWCA Civ 365, para 31, as approved and applied in Motto v Trafigura Limited [2011] EWCA Civ 1150, paras 43–50.
4. The claimed base costs of £32,113.50 were disproportionate. The dispute concerned a relatively insignificant strip of land, repeated points of law and extensive earlier litigation. The court emphasised the CPR’s objective of proportionality, while recognising access to justice and party autonomy.
5. Application to the bill. Seven hours of solicitors’ time were disallowed. Hearing attendance was reduced to reflect the half-day hearing. The cost of two counsel was not reasonable, proportionate or necessary between the parties. The fact that the appellants had also used two counsel did not automatically justify recovery of the same expense. The court allowed £14,925 for the experienced leader and excluded the junior’s fee. Time spent agreeing the conditional-fee agreement was disallowed in accordance with Motto, paras 104–114.
6. Success fee. The court had to scrutinise the 100% uplift vigilantly, without hindsight or undue harshness. Although permission to appeal and the risks on the issues had to be considered, the respondent’s prospects were materially better than 50/50. A 50% uplift was therefore reasonable. The final sum was £29,376.
7. The Master of the Rolls also observed that a short, clear explanatory note accompanying a costs schedule can assist summary assessment where proportionate and reasonably necessary.

• Court of Appeal (Civil Division) — The underlying boundary-dispute appeal was dismissed for the reasons given in [2011] EWCA Civ 1279. This consequential judgment summarily assessed the respondent’s costs.
• Chancery Division — The appeal is described as arising from a decision of Ms Susan Prevezer sitting as a Deputy High Court Judge. No citation for that decision is stated in the judgment.