East Sussex Fire And Rescue Service v Austin

Under the pre-April 2013 costs regime, proportionality was assessed globally before the item-by-item assessment. The costs judge was then required to apply reasonableness and, where appropriate, necessity to individual items. The current regime is generally stricter because disproportionate costs may be reduced despite being reasonably or necessarily incurred, but the factors relevant to the global proportionality assessment are not materially different. An appellate court should read an ex tempore costs ruling as a whole and should not interfere with an impressionistic proportionality assessment absent legal error. The reasonable instruction of leading counsel depends on the circumstances, including the complexity and importance of the case and the need for separate representation. A brief fee is assessed by reference to the fee a hypothetical competent counsel would accept, not mechanically by hourly rates.

This was an appeal by the paying party from a detailed assessment of the respondent’s costs following negligence proceedings arising from a major firework explosion. The underlying claim involved complex legal issues, including statutory duties, duty of care and battlefield immunity. The respondent accepted a Part 36 offer of £25,000, with costs subject to detailed assessment.

The Senior Costs Judge held that the base costs were not globally disproportionate, that leading counsel had been reasonably instructed, and that leading counsel’s brief fee was reasonable. The appellant challenged each ruling, alleging errors concerning the old proportionality test, separate representation and the calculation of the brief fee.

1. Appeal dismissed. The Master’s rulings on global proportionality, the instruction of leading counsel and the brief fee disclosed no error of law.
2. Under the former rules, the court first made a global and necessarily impressionistic assessment of proportionality, having regard to the factors in CPR 44.5(3). If the costs appeared disproportionate, the subsequent item-by-item assessment involved necessity and reasonableness; if they did not, reasonableness ordinarily sufficed. The current regime is tougher because disproportionate costs may be reduced even where reasonably or necessarily incurred.
3. The factors relevant to the global proportionality assessment under the former CPR were not materially different from those under the current rules. The Master’s reference to the old test being gentler and more generous was properly understood as referring to the different sequencing and consequences of the two regimes, not to materially different assessment factors.
4. The Master was entitled to treat the litigation as important and complex. Its legal defences, expert evidence, length and significance justified the conclusion that the respondent’s base costs were not globally disproportionate. An appellate court should not disturb such a broad evaluative judgment merely because individual aspects are open to debate.
5. The Master correctly applied the principles concerning the instruction of leading counsel. Separate representation and the weight of the case justified leading counsel despite the claim’s limited monetary value. The respondent could not reasonably be expected to rely on counsel instructed for other claimants.
6. Leading counsel’s brief fee was not to be calculated mechanically by applying an hourly rate to preparation time. The proper question was the fee which hypothetical competent counsel, not of pre-eminence, would accept for conducting the case. The Master was entitled to reduce the fee to £45,000.

• High Court (Queen’s Bench Division): The appeal from the detailed assessment was dismissed. The underlying liability judgment was reported as [2013] EWHC 2331 (QB).