HAYAT v SARDAR & ANOR

Indemnity costs require conduct outside the norm. Although the same procedural rules apply to litigants in person, their status may be relevant when assessing whether conduct justifies indemnity costs. Costs must be assessed overall by reference to what is fair and proper, including reasonableness and proportionality. The court may reduce costs where work was unnecessarily incurred, conducted inefficiently, or disproportionate to the issue requiring determination.

The appellant, acting in person, sought to withdraw an appeal after permission had been granted. The respondents sought their costs on an indemnity basis and claimed £3,828 including VAT. The court considered the correspondence concerning withdrawal, the respondents’ costs schedule, the work undertaken by solicitors and counsel, and the appellant’s financial and personal circumstances. The issues were whether indemnity costs were justified and, if not, what amount of costs was fair and proper.

1. Indemnity basis. The respondents’ complaints about the late appeal bundle, reliance on CE-File, and the appellant’s refusal to agree to pay costs did not justify assessment on the indemnity basis. The court took into account that the appellant was representing himself. While the same rules apply to all litigants, some allowance may be appropriate when deciding whether conduct falls outside the norm.
2. Amount of costs. It was not appropriate to limit the respondents’ recovery to a minimal sum. The appellant had not agreed to withdraw while bearing the respondents’ costs, so a hearing, at least on costs, was inevitable. However, the respondents could have stated their position more clearly, and some costs were unnecessarily incurred.
3. The solicitors’ work was disproportionately undertaken by a grade A fee earner, with little work undertaken by other fee earners. Counsel’s £1,500 brief fee was also high for what was essentially a short debate about costs.
4. The court made an overall assessment of the fair and proper amount, having regard to whether the costs were reasonable and proportionate. The amount ordered was £2,000 including VAT.

Permission to appeal had been granted approximately a year earlier. The appellant later sought to withdraw the appeal, and an application to withdraw was made on 25 May 2022. This judgment determined the respondents’ costs of the appeal.