Consolidated Contractors International Company SAL & Anor v Masri

Costs in an appeal should reflect the relative importance and extent of success on the issues. Success on one short issue may justify an issue-based apportionment rather than an order that each party bear its own costs. Modest appeal costs may be summarily assessed where detailed assessment would waste time and money, subject to deductions for excessive or duplicative work. A lower-court costs order may remain undisturbed where only one of many issues has been overturned.

This was a consequential costs judgment following the Court of Appeal’s earlier decision in [2011] EWCA Civ 21. The appellant companies had succeeded on one issue concerning identification of the person and firm that supplied information used in an affidavit. Their other challenges were dismissed or permission to appeal was refused.

The court considered the appropriate allocation and assessment of appeal costs, the effect of a late outline argument, whether the costs order made by Steel J should be varied, and how £140,000 paid into court as security should be dealt with. The appeal arose from the Commercial Court order reported at [2010] EWHC 2640.

Costs and consequential orders

1. Apportionment of appeal costs. The companies’ success was confined to the identity issue. The remaining issues required a hearing and were unsuccessful or did not obtain permission to appeal. The identity issue occupied almost no hearing time because the court indicated at the outset that it was inclined to allow the appeal on that point. The appropriate order was therefore that Mr Masri recover 80% of the appeal costs, with the remaining 20% treated as costs in the application to exclude evidence or in the contempt application.
2. Late outline argument. The court rejected the submission that the costs of the outline argument served on 7 January 2011 should be disallowed by reference to 52PD5.10(6)(b). The document was received five days before the hearing, the appellants themselves had submitted a substantially revised outline, and there was no suggestion of prejudice.
3. Summary assessment. Detailed assessment was disproportionate because the total costs were comparatively modest. The court deducted £915 for an assistant solicitor’s work reviewing skeleton arguments and £1,687 for a partner’s attendance at the appeal. It assessed the recoverable appeal costs at 80% of £23,167, namely £18,533.
4. Costs below. The Commercial Court costs order was left undisturbed. The judge had dealt with many issues, and the Court of Appeal had disturbed only one of them. The order requiring payment of £45,000 on account pending detailed assessment therefore remained in force.
5. Security paid into court. Of the £140,000 paid in as security for costs, £63,533 was ordered to be paid immediately to Mr Masri’s solicitors. The balance was retained for the detailed assessment of the Commercial Court costs and pending the outcome of the contempt hearing. The parties were directed to submit an agreed draft Final Order.

• Court of Appeal (Civil Division): In the present consequential costs judgment, the court gave effect to its earlier decision in [2011] EWCA Civ 21, which had allowed the appeal on one issue and dismissed the remaining challenges or refused permission.
• High Court, Queen’s Bench Division, Commercial Court: Steel J made the underlying order dated 21 October 2010, reported at [2010] EWHC 2640. The Court of Appeal left his costs order undisturbed.