Shah & Anor v Breed & Anor

An appeal from a costs judge is not a rehearing. The appellate court asks whether the decision was wrong and, in a case-management decision, whether it fell outside the generous ambit of reasonable discretion. On detailed assessment, proportionality is considered globally at the outset. Only if the costs are globally disproportionate is it necessary to apply the additional tests of reasonableness and necessity. Points of dispute should identify the individual items challenged and, where practicable, propose alternative figures. A costs judge may refuse late amendments and may permit separate representation where the circumstances make that reasonable.

The defendants appealed against a detailed assessment of the claimants’ costs following a successful boundary dispute. The Senior Courts Costs Office had allowed substantial costs for two firms of solicitors, subject to reductions, and had refused late re-amendments to the points of dispute. The defendants challenged the approach to proportionality, alleged duplication and valueless work, and disputed the allowance of two sets of representation. The appeal concerned whether the costs judge had exercised his discretion wrongly or outside the permissible range.

1. Appeal dismissed. The stay of execution was lifted. The appellants were ordered to pay the respondents’ appeal costs of £11,526.10 within 14 days, with the assessed costs otherwise payable forthwith.
2. An appeal from a costs judge is not a rehearing. The question was whether the decision was wrong and, particularly in relation to case management, whether it was so plainly wrong as to fall outside the generous ambit of discretion. The court applied Hornsby v Clark Kenneth Leventhal [2000] 2 Costs LR 295, Griffiths v Solutia UK Ltd [2001] EWCA Civ 736 and Walbrook Trustee (Jersey) Limited v Fattal [2008] EWCA Civ 527.
3. The costs judge correctly applied the proportionality approach in Lowndes v The Home Office [2002] EWCA Civ 365; [2002] 4 All ER 775. He was required first to stand back and consider global proportionality. If the bills were globally disproportionate, he would then apply reasonableness and necessity. His conclusion that the bills were proportionate was within the proper ambit of discretion.
4. Under paragraph 5.2(b) of the Costs Practice Direction, points of dispute should identify each disputed item, state concisely the grounds, and, where practicable, suggest an alternative figure. The costs judge was entitled to regard the points as insufficiently precise and to treat the underlying issues as matters already determined or as general challenges to the bills.
5. He was also entitled to refuse late re-amendments which would reopen issues, require an adjournment and cause prejudice. It was reasonable to allow separate representation for both firms because the appellants’ approach meant that the former solicitors were best placed to answer challenges to their own bill.

• High Court (Queen's Bench Division): appeal from the detailed assessment decision of Deputy Master Rogers dated 7–8 March 2012. Appeal dismissed under [2013] EWHC 232 (QB).