Football Association Premier League & Anor v Lord Chancellor (Costs)

On a summary assessment of costs, reasonableness and proportionality must be assessed in light of all the circumstances. Relevant considerations include the conduct of the parties, the value and importance of the matter, the complexity of the issue, and the skill, time and effort expended.

An appeal concerning a single issue already fully argued below may justify careful preparation, but not duplicated work or excessive hours across legal teams. The court may make appropriate reductions and adopt a broad-brush approach to arrive at a reasonable and proportionate total.

The judgment concerned the summary assessment of the appellants’ costs following their successful substantive appeal. That appeal had concerned the recoverability from central funds of pre-commencement costs incurred by private prosecutors under section 17(1) of the Prosecution of Offences Act 1985, and had been remitted to the costs judge by the judgment reported at [2021] EWHC 755 (QB).

The appellants claimed just over £76,000 for the appeal. The respondent contended that the claims were unreasonable and disproportionate, and challenged costs relating to an out-of-time permission application, duplication, excessive preparation time and fee-earner costs. The central issue was the proper reasonable and proportionate figure.

1. Disposition. The court, O’Farrell J giving the judgment of the Court, summarily assessed the costs payable by the respondent at £60,000, with £30,000 payable to each appellant.
2. Under rule 44.4 of the Civil Procedure Rules 1998, the court assessed reasonableness and proportionality by reference to all the circumstances, including the conduct of the parties, the value of the claim, the importance of the matter, the complexity of the issue, and the skill, time and effort spent.
3. The appeal involved one issue of principle which had already been identified and argued fully before the costs judge. It warranted careful thought and preparation, particularly given its importance and wider implications, but did not justify extensive hours by several members of the legal teams undertaking overlapping work. The court therefore took account of unnecessary duplication and excessive time.
4. The appellants could not recover the costs of their applications for permission to appeal out of time, resulting in a £4,000 reduction. A further £10,000 was deducted for excessive costs-lawyer time and duplication, and £2,000 for unnecessary high fee-earner costs. The court adopted a broad-brush approach to the summary assessment and regarded £60,000 as reasonable and proportionate.
5. The assessed sums were ordered to be paid by 17 May 2021.

1. High Court (Queen’s Bench Division): On 30 March 2021, the Court allowed the appellants’ substantive appeal concerning recoverability of pre-commencement private-prosecution costs from central funds under section 17(1) of the Prosecution of Offences Act 1985, and remitted the issue to the costs judge: [2021] EWHC 755 (QB).
2. High Court (Queen’s Bench Division): The present judgment summarily assessed the costs of that appeal.