Tomlinson v Radiocoms Systems Ltd

On a summary assessment, a judge must carry out the required two-stage consideration of the costs schedule. A reduction in the total claimed does not dispense with examination of individual items where their reasonableness or proportionality requires it.

The need for judicial scrutiny is particularly acute where the paying party is a litigant in person who may not understand the procedure or be able to challenge the schedule. The judge should also consider whether costs claimed for an interlocutory application overlap with costs of the action. A failure to address those matters is an error of principle and may require a detailed assessment.

The claimant in a passing-off action obtained an ex parte injunction and then an interlocutory injunction. Its concurrent application for summary judgment was refused because the evidence was insufficiently sound for that course.

Floyd J summarily assessed the claimant’s costs of the injunction application. He reduced a schedule of about £68,000 to £50,000, but did not explain the reduction, question the substantial items in the schedule, or identify the alternative of detailed assessment to the defendant, who was acting in person.

The defendant appealed the costs order. The central issue was whether the summary assessment had been conducted on a proper basis of principle.

1. Appeal allowed unanimously. The costs order was set aside and the costs were directed to a detailed assessment. An appropriate interim payment was also to be ordered, recoverable if the claimant ultimately failed in the action.

2. The judge was required to apply the two-stage approach in Lownds v Home Office [2002] EWCA Civ 365. A 25 per cent reduction of the total schedule did not show that the judge had undertaken the necessary scrutiny of the individual items. The schedule included potentially significant claims for document work and attendance, yet the judge had not questioned them or explained the basis of his reduction.

3. The omission was an error of principle. The paying party was a litigant in person and could not be assumed to understand the assessment process or to be able to challenge the schedule effectively. In those circumstances the judge should himself have engaged with the schedule and informed the litigant of the available alternative of detailed assessment.

4. There was also a potentially important issue whether work claimed as costs of the interlocutory injunction was instead, or additionally, work referable to the trial. The judge had not addressed that question. The Court did not determine the principles governing that allocation, but held that the failure independently demonstrated that the discretion had been exercised on a wrong basis of principle.

5. The Court made no criticism of the scale, composition, or recoverability of the bill. Those questions were for the detailed assessment.

• Court of Appeal (Civil Division): allowed the appeal from Floyd J’s costs decision of 15 January 2010 and ordered a detailed assessment of the costs.
• Chancery Division, Intellectual Property: Floyd J summarily assessed the successful claimant’s costs of the interlocutory injunction application at £50,000 after a reduction from a schedule of about £68,000.