Transformers And Rectifiers Ltd v Needs Ltd

Under the current Civil Procedure Rules, a judge may summarily assess costs arising from a hearing conducted, or an order made, by another judge where the circumstances make that appropriate. The rules contain no inflexible requirement that the original judge undertake the assessment. The relevant Practice Direction is permissive, not mandatory. The overriding objective also requires flexibility where summary assessment is the just and proportionate course. Particular weight may be given to the fact that an order was made on the papers, because the assessing judge has the same material as the judge who made the order.

The claimant sought summary assessment of three sets of costs. Two sets had been ordered by Edwards-Stuart J on paper applications, while the claimant’s application for a further set of costs was determined at the hearing before Coulson J. The defendant argued that Coulson J lacked jurisdiction to assess the two sets ordered by another judge. The central issue was whether the current Civil Procedure Rules permitted a different judge to conduct the assessment.

1. The summary assessment was undertaken. Coulson J held that, in appropriate circumstances, one judge may summarily assess costs arising from a hearing conducted, or an order made, by another judge.
2. CPR Part 44.6 gives the court a choice between summary assessment and detailed assessment, subject to any contrary rule, practice direction or enactment. Nothing in the current rules imposed a blanket prohibition on assessment by a different judge.
3. Paragraph 9.7 of Practice Direction 44 is permissive. It permits directions for a later hearing before the same judge where the court awarding costs cannot assess them on the day, but it does not require that course in every case.
4. The overriding objective in CPR r.1.1(1), requiring cases to be dealt with justly and at proportionate cost, supported a flexible approach. A rigid rule could produce disproportionate results where the original judge had died, was indisposed, was sitting elsewhere, or was otherwise unavailable.
5. The distinction between a contested hearing and an order made on the papers was material. Where no hearing occurred and the order was based on written material, another judge can assess the costs because the same material is available.
6. Mahmood & Anr v Penrose & Others [2002] EWCA Civ 457 did not require a different result. It concerned an earlier, mandatory version of the Practice Direction, the former overriding objective, and the assessment of costs of a hearing before another judge. The present case was materially different.

First instance decision. The judgment records earlier interlocutory orders made by Edwards-Stuart J, but no appeal from a separate judgment is identified.