Kuznetsov, R (On the Application Of) v London Borough of Camden

An order made without a hearing under CPR rule 3.3(4) may be set aside, varied or stayed under rule 3.3(5) on a lower threshold than applies to an order made after a hearing under rule 3.1(7). The court should give due weight to the judge’s paper decision but should identify a good reason for disagreeing with it. The stricter principles in Tibbles v SIG PLC and Mitchell v News Group Newspapers do not govern such an application. For in-house solicitors, the conventional guideline-rate approach generally applies when assessing recoverable costs. A detailed investigation of actual payroll and infrastructure costs is required only in a special case where infringement of the indemnity principle is reasonably plain.

The claimant had sought judicial review of the London Borough of Camden’s decision that he did not qualify for housing allocation under Part 6 of the Housing Act 1996. The substantive claim was dismissed by Judge Markus QC, and costs were summarily assessed at £11,614.20.

The costs order was made on paper. The claimant applied under CPR rule 3.3(5) to set it aside, but Judge Markus dismissed that application without a hearing. The claimant then sought reconsideration before the High Court.

The issues were the correct test for reviewing an order made without a hearing and whether the claimed costs, particularly an hourly rate of £317 for an in-house solicitor and £950 for counsel at the permission hearing, breached the indemnity principle.

1. Application dismissed. The court gave due weight to Judge Markus QC’s decision and could identify no good reason to depart from it.
2. The costs decision had been made without a hearing under CPR rule 23.8(c), with Practice Direction 23A, paragraph 11.2 treating the application as an order proposed or made on the court’s own initiative under rule 3.3.
3. The test under CPR rule 3.3(5) is lower than the principled and restricted test applicable when varying or revoking an order made after a hearing under rule 3.1(7). The court must give due weight to the paper decision and identify a good reason for disagreeing with it. An appealable error is not required.
4. The indemnity principle prevents a costs award from exceeding the expense reasonably incurred, but it does not ordinarily require a detailed breakdown of every cost incurred by a public body employing in-house lawyers. The guideline rate for summary assessment may be used unless it is reasonably plain that applying the conventional approach would exceed the actual cost incurred.
5. The evidence concerning Camden’s payroll costs did not establish a special case. The guideline rate included contributions to infrastructure, premises, equipment, utilities and other overheads. The challenge to the £317 hourly rate therefore failed.
6. The £950 counsel fee for the permission hearing was recoverable. Counsel had participated actively and had successfully narrowed the permission granted.
7. There was no order as to the costs of the reconsideration hearing because Camden had not filed the required Form N260 in accordance with CPR Practice Direction 44, paragraphs 9.2(b) and 9.5.

The judgment describes a reconsideration by the High Court of Judge Markus QC’s paper decision dated 27 September 2019 dismissing the claimant’s application to set aside the costs order. The underlying judicial review proceedings had been granted permission in part by John Bowers QC, sitting as a deputy High Court judge, and were subsequently dismissed by Judge Markus QC.