Long v Value Properties Ltd & Anor

Where a detailed assessment includes an additional liability, the receiving party must serve the relevant supporting information with the notice of commencement and bill of costs. A failure to do so engages the time-related sanction in CPR r.44.3B(1)(c), rather than the all-or-nothing sanction in r.44.3B(1)(d), where the information is supplied during the assessment proceedings. Alternatively, relief should ordinarily be granted where the breach is neither serious nor significant and causes no material prejudice. Under CPR r.3.9, the court must consider all the circumstances. An absence of a good reason does not make relief automatic where the breach is otherwise insignificant and the opposing party has acted opportunistically or without cooperation.

The claimant appealed from a decision of Costs Judge Master Rowley refusing relief from sanctions. The underlying claim concerned a dispute over parking spaces and had settled by consent order, with costs payable subject to detailed assessment.

The claimant commenced detailed assessment proceedings by serving the notice of commencement and bill of costs, but omitted the further information required for a conditional fee agreement. That information was supplied about five weeks later, after the defendants had served points of dispute. The issues were whether the information had to be served at commencement, which sanction applied, and whether relief should be granted.

1. The appeal was allowed. Detailed assessment proceedings were properly commenced by service of the notice of commencement and bill of costs under CPR r.47.6(1). Nevertheless, the structure and purpose of CPR Part 47 and Costs Practice Direction paragraphs 32.5 and 32.7 implied an obligation to serve the further information at the same time. Any later provision would undermine the orderly, fair and proportionate conduct of the assessment.
2. The applicable sanction was CPR r.44.3B(1)(c), not r.44.3B(1)(d). Paragraph (c) was expressed in sufficiently wide terms to cover funding information required during detailed assessment proceedings and imposed a sanction referable to the period of default. Paragraph (d) addressed a failure to disclose the reasons for the percentage increase in the assessment proceedings and was not engaged by the claimant’s late, but eventual, disclosure. This construction also avoided the anomalies and disproportionate consequences identified in the judgment.
3. Alternatively, relief would be granted under CPR r.3.9. Applying the three-stage approach in Denton v TH White Ltd [2014] EWCA Civ 906, the breach was neither serious nor significant. The information was supplied promptly once the omission was raised, there was no significant prejudice, and the defendants already knew that the claimant was funded by a CFA with success fees.
4. The defendants’ decision to serve points of dispute without first notifying the claimant, followed by their refusal to cooperate in amending them, materially increased the costs and delay. Although oversight was not a good reason for the breach, CPR r.3.9 required consideration of all the circumstances. Complete relief was therefore just.

• High Court (Chancery Division): On appeal from Costs Judge Master Rowley in the Senior Court Costs Office, the appeal was allowed. The court held that the relevant sanction was under CPR r.44.3B(1)(c), or alternatively granted complete relief under CPR r.3.9.