Nihal Mohammed Kamal Brake & Anor v Geoffrey William Guy & Ors

For a short application dealt with on paper, the court may treat the written process as a hearing for the purpose of assessing costs, although rules referring to the length of a hearing may require separate consideration. Summary assessment remains the general approach where the application is short and can be dealt with proportionately. A failure to give the prescribed notice of costs does not automatically prevent summary assessment; the court has a fact-sensitive discretion, principally informed by prejudice.

Guideline hourly rates are not fixed tariffs. However, a party seeking rates above them must provide a clear and compelling justification. Summary assessment is a broad-brush exercise rather than a line-by-line billing exercise, but the court must address substantial and justified criticisms of time spent, delegation and proportionality.

The defendants successfully applied under regulation 7(2)(b) of the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020 for an order requiring compliance with an earlier third-party debt order despite the first claimant’s mental health crisis moratorium. That application had been determined in the defendants’ favour in an earlier judgment, [2022] EWHC 2797 (Ch).

This judgment concerned consequential costs. The defendants sought summary assessment, limited to £6,500 from a statement totalling £9,551.98. The claimants accepted that a costs order should be made but argued for detailed assessment, challenged the claimed amount and sought time to pay. The issues were the mode of assessment, the appropriate hourly rates and amount, and whether payment should be deferred.

1. Summary assessment. The general rule in CPR PD 44 paragraph 9.2 is summary assessment for a hearing lasting no more than one day. A matter dealt with on paper may be treated as a hearing for procedural purposes, but paragraph 9.2(b), referring to the length of a hearing, cannot be applied literally to a paper determination. For paragraph 9.5(4)(b), the hearing begins when the judge can consider the application after the time for both parties’ written submissions has expired. The statement of costs served approximately 48 hours before the reply submissions therefore complied with the rule; in any event, any procedural failure caused no material prejudice.
2. Tomlinson. The decision in Tomlinson v Radiocom Systems Ltd [2011] EWCA Civ 1832 was distinguishable. It concerned a litigant in person, substantially higher costs, an unexplained reduction and a failure to explain the availability of detailed assessment. Those features were absent here. Summary assessment was proportionate for this short piece of satellite litigation.
3. Rates and proportionality. The applicable guideline was London 1 because the application arose in long-running heavy commercial litigation, involved complex and novel regulations, and required timely consideration. Guideline rates are not immutable, but Samsung Electronics Co Ltd v LG Display Co Ltd [2022] EWCA Civ 466, as reiterated in Athena Capital Services SICAV v Secretariat of State for the Holy See [2022] EWCA Civ 1061, required clear and compelling justification for charging rates above them. No sufficient justification was shown.
4. The court accepted that the novel application required more than two hours’ work and that solicitors could properly charge for reviewing counsel’s drafts. However, 10.2 hours of document work was excessive and insufficiently delegated; approximately seven hours, divided between grade A and grade C fee-earners, should have sufficed. Three hours of grade A attendance time was also excessive; approximately two hours, suitably divided, was adequate. The court took account of the settlement offers under CPR rule 44.2(4)(c).
5. Summary assessment is a broad-brush exercise, not a line-by-line billing exercise: Axnoller Events Ltd v Brake [2021] EWHC 2362 (Ch), referring to Football Association Premier League v The Lord Chancellor [2021] EWHC 1001 (QB). The defendants’ costs were summarily assessed at £5,500, including counsel’s fees and the court fee. The question of time to pay was reserved pending further written submissions. The court declined at that stage to order access to the cottage to retrieve disputed property.

First-instance costs determination following the defendants’ successful application decided in [2022] EWHC 2797 (Ch). No appeal was determined in this judgment.