Hugh Cartwright & Amin v Devoy-Williams & Anor (Rev 1)

An appellate court should interfere with a costs decision only where the judge below exceeded the generous ambit of reasonable disagreement, erred in principle or reached a perverse conclusion. A counsel’s brief fee properly incurred before a late settlement remains payable; the possibility that counsel might have undertaken other work is irrelevant. For detailed assessment costs, a Calderbank offer must be capable of acceptance on its stated terms. An offer conditional on further negotiation cannot displace the receiving party’s default entitlement to costs under Civil Procedure Rules 1998, CPR 47.20.

This was an appeal from decisions made by Master Rowley in detailed assessment proceedings concerning costs payable by former clients to their solicitors. The underlying substantive costs claim had settled, with the respondents agreeing to pay the solicitors’ costs subject to detailed assessment. The appeal challenged the hourly rates allowed, the reduction of counsel’s brief fee, the proposed set-off against costs in separate negligence proceedings, and the costs consequences of a settlement offer made during the assessment.

The appeal also raised whether an earlier pre-action offer in the substantive proceedings should have affected the assessment costs, and whether the later offer was an effective Calderbank offer.

1. The appeal was allowed in relation to counsel’s brief fee and the Calderbank offer. The challenges to the treatment of the pre-action offer and hourly rates failed. The set-off issue had become academic because the separate negligence claim had been struck out and the respondents accepted that the assessed sum was payable.

2. The court applied the appellate restraint principles stated in G v G [1985] 1 WLR 647, SCT Finance Ltd v Bolton [2003] All ER 434 and Abbot v Long [2012] RTR 1. A costs decision should not be disturbed merely because another solution might have been preferred. Intervention requires an error in principle, perversity, or a decision outside the proper range of discretion.

3. The pre-action offer concerned the substantive proceedings, not the detailed assessment proceedings. The Master therefore acted within his discretion in treating the later offer in the costs proceedings as the relevant offer. The Master was also better placed to assess the appropriate hourly rates because he had seen the pleadings. The appellant had not shown that his decision was outside the reasonable exercise of his discretion.

4. The brief fee had been incurred before the case was finally settled at 10.30 pm on the night before the jurisdiction hearing. Counsel was entitled to continue preparing until informed of a final settlement. The fact that some work might have been avoided, or that counsel might have done other work, did not justify reducing a fee which the Master had otherwise found reasonable. The full claimed fee was therefore allowed.

5. Under CPR 47.20(1), the receiving party was presumptively entitled to the costs of the detailed assessment. The respondents’ offer linked the quantum to conditions which the appellant could not accept without further agreement or negotiation. It was therefore not an effective Calderbank offer. The Master erred by placing on the appellant the burden of negotiating the conditions or making a counter-offer, and the respondents were ordered to pay the post-20 January 2017 assessment costs.

6. The respondents were ordered to pay £3,500 for counsel’s fees and £3,000 for the post-January 2017 assessment costs, together with the total sum of £6,500 within 21 days. There was no order as to the costs of the appeal.

• High Court (Queen’s Bench Division): appeal from decisions of Master Rowley in the Senior Courts Costs Office. The appeal succeeded concerning counsel’s brief fee and the costs consequences of the later offer, while the remaining grounds failed or became academic.