Coward v Harraden

Costs must be confined to work reasonably and proportionately undertaken for the application in issue. The court must consider all the circumstances, including the parties’ conduct, the reasonableness of raising particular issues and any admissible settlement offer. Costs incurred on collateral applications or allegations cannot be recovered as costs of the present application. Summary assessment is ordinarily appropriate after a short hearing, but the court’s jurisdiction under CPR Part 44.7 is not limited to cases involving an oral hearing. Where the papers show that the claimed costs substantially concern irrelevant issues, the court may make no order for costs rather than permit detailed assessment.

The claimant obtained Norwich Pharmacal orders and private judgments concerning surveillance devices found at his home. He later applied to lift restrictions on publication of those judgments. The interveners opposed the application and incurred substantial costs, including work concerning whether the Norwich Pharmacal order should have been made, whether it should be discharged, alleged non-disclosure and press publicity.

The application was resolved by consent, with costs reserved. The issue before the court was the appropriate costs order and whether the interveners’ wider work could properly be treated as costs of the publication application.

1. The interveners were, in substance, the successful parties because the private judgments remained private. However, the claimant had acted reasonably in asking the court to reconsider a derogation from open justice. The court applied the principles concerning public judgments and accountability discussed in Hodgson v Imperial Tobacco Ltd [1998] 1 WLR 1056 and R (Mohammed) v Foreign Secretary (No 2) [2010] 3 WLR 554.

2. Under Civil Procedure Rules 1998, Part 44.3, the court had a discretion whether to order costs and had to consider all the circumstances, including conduct before and during the proceedings, the reasonableness of raising or pursuing issues, and admissible offers. Proportionality was an essential consideration, following Home Office v Lownds: Practice Note [2002] EWCA Civ 365.

3. The interveners’ work concerning the validity or discharge of the Norwich Pharmacal order, alleged breaches of orders and responsibility for press coverage did not relate sufficiently to the publication application. Such work could not properly be included in its costs. The court expressed no view on the merits of those collateral issues.

4. The costs claimed were grossly disproportionate to an application concerning publication of private judgments. The court had already expended substantial resources. It would therefore be contrary to the overriding objective to order detailed assessment.

5. Although Morgan v The Spirit Group Ltd [2011] EWCA Civ 68 established that summary assessment required schedules and an item-by-item assessment, CPR Part 44.7 conferred jurisdiction to assess costs summarily even where there had been no oral hearing. That point was unnecessary to the result. The order was that there be no order for costs.