Letts v Royal Sun Alliance Plc (Rev 1)

On a standard-basis costs assessment, the assessor must consider all the circumstances, including conduct before and during proceedings and the parties’ settlement efforts. The fact that a claim might have fallen within a predictive or fixed-costs regime is a highly material circumstance, but it does not convert the assessment into an assessment under that regime or impose its recoverable costs as a cap. An appellate court reviewing a specialist costs judge asks whether the decision was wrong within the generous ambit of permissible judgment.

The defendant appealed from Master Leonard’s dismissal of a rehearing appeal concerning the assessment of costs in a road-traffic personal-injury claim. The Costs Officer had reduced the claimant’s claimed costs from £5,672.51 to £2,973.90. The appeal proceeded by way of review.

The issues were whether proceedings had been issued prematurely and unreasonably, and whether the costs should consequently have been limited by reference to the predictive costs regime in CPR Part 45.

1. Appeal dismissed. The appeal was a review of a specialist costs decision. The question was not whether the appellate court would have reached the same conclusion, but whether the decision was wrong within the generous ambit of appreciation accorded to a specialist judge.
2. The conclusion that issuing proceedings on the expiry of the protocol period was not premature to any material degree was open to the Costs Judge. The defendant had made an initial offer which was derisory and a later offer which did not clearly address the claim as a whole, costs, or the proposed low-velocity-impact issue. A further short delay would not necessarily have altered the position.
3. Under CPR 44.4 and CPR 44.5, a standard assessment required consideration of whether costs were reasonably and proportionately incurred and reasonable and proportionate in amount, having regard to all the circumstances, including conduct and settlement efforts.
4. Lahey v Pirelli Tyres Ltd [2007] 1 WLR 998, Drew v Whitbread PLC [2010] 1 WLR 1725 and O’Beirne v Hudson [2010] 1 WLR 1717 established that the assessor could take account of what would have been recoverable under another costs regime, but could not simply assess the costs as if the claim had been subject to that regime.
5. The predictive costs regime was therefore a highly material circumstance, not a cap on costs recoverable under a standard assessment. The Costs Officer had applied that approach, and the appeal would have failed on the second issue as well.

• High Court (Queen’s Bench Division): Appeal by way of review from Master Leonard’s dismissal of a rehearing appeal under CPR Part 47 Rule 23. Appeal dismissed.
• Senior Courts Costs Office: Master Leonard dismissed the claimant’s rehearing appeal from the Costs Officer’s assessment.
• Costs Officer: Costs reduced from £5,672.51 to £2,973.90.