Hussain v Amin & Anor

In a costs appeal, the usual rule that costs follow the event may be maintained where criticism of a party’s conduct can be addressed during detailed assessment. A trial judge may reserve conduct issues to the costs judge, particularly where the costs judge is better placed to assess the relevant material. Reasons for a costs order need not be set out separately where the reason is obvious from the order and the preceding discussion. Such an order will not ordinarily breach Article 6 or the common law duty to give reasons. A defence which in substance alleges fraud or a staged accident should be pleaded clearly, unequivocally and with proper particulars. Insinuation is not an acceptable substitute for an express allegation.

The appellant brought a damages claim arising from a road traffic accident. The trial judge accepted that the accident was genuine and awarded damages of £11,118.33. He ordered the second respondent to pay the claimant’s costs, subject to detailed assessment, and reserved questions concerning the claimant solicitors’ conduct to the costs judge.

The second respondent appealed the costs order. It argued that the trial judge should have made a different order because of alleged deficiencies in the claimant solicitors’ preparation, and that the judge’s brief supplementary judgment gave inadequate reasons. The central issues were whether conduct could properly be left to the costs judge and whether the absence of express reasons invalidated the costs order.

1. Appeal dismissed. The trial judge was entitled to order that costs follow the event while reserving questions about the claimant solicitors’ conduct to the costs judge for detailed assessment. He lacked access to the correspondence and considered that the costs judge was better placed to assess the competing responsibility of the firms of solicitors.
2. The failure to give separate reasons in the supplementary judgment did not invalidate the order. Read with the detailed discussion immediately preceding it, the order made the judge’s reasoning sufficiently clear: the conduct issue did not justify departing from the usual costs rule and could be dealt with on assessment. There was no breach of Article 6 or of the common law obligation to give reasons. English v Emery Reinbold & Strick Ltd was applied.
3. The observations in Aaron v Shelton could not be treated as an inflexible principle because they had been expressly disapproved in Drew v Whitbread plc.
4. Lord Justice Davis additionally criticised the second respondent’s defence. It was proper to join issue on negligence, causation and loss, but an allegation that a collision was sham or fraudulent should be pleaded expressly, clearly, unequivocally and with proper particulars. The burden of proving such a defence would rest on the defendant. The costs judge was to assess the reasonable costs consequences of the conduct of all parties, including the nature of the defence.

• Court of Appeal (Civil Division): Appeal dismissed. The court upheld the costs order made by HHJ Birtles on 25 October 2011.
• Central London Civil Justice Centre: The judge found the accident genuine, awarded damages of £11,118.33, ordered the second defendant to pay the claimant’s costs subject to detailed assessment, and reserved questions concerning the claimant solicitors’ conduct to the costs judge.