Deutsche Bank AG v Sebastian Holdings Inc

On a detailed assessment, the court may reconsider an earlier allowance before the final costs certificate is issued, particularly where the request was raised in good time. The discretion should nevertheless be exercised cautiously. A party must identify a genuine basis for revisiting the earlier decision. The later emergence of material already available during the original assessment does not, without more, justify reopening broad evaluative decisions made after an extensive hearing. Where the original reductions already reflected the relevant work and the subsequent material shows no material change in the evidential picture, the court may refuse reconsideration.

The judgment concerned Mr Vik’s request to reconsider allowances made for Deloitte LLP in the detailed assessment of Deutsche Bank AG’s costs. The allowances related principally to work connected with an abandoned argument concerning initial margin. The original decisions followed a 12-day hearing and were recorded in the Deloitte judgment, [2021] EWHC B4 (Costs).

The detailed assessment remained ongoing, and no final costs certificate had been issued. Mr Vik relied on material emerging during the assessment of the claimant’s solicitors’ costs and sought reconsideration of Deloitte’s fees for July 2012 to February 2013. The central issue was whether the court should exercise its discretion to revisit the earlier allowances.

1. Power to reconsider. The court accepted that, while a detailed assessment remains incomplete and before a final costs certificate is issued, it has a discretion to reconsider an earlier decision on an item. It was also relevant that Mr Vik’s intention to seek reconsideration had been raised well in advance.
2. Basis for exercising the discretion. Reconsideration was not justified merely because subsequent review of the solicitors’ work produced material which might invite a different assessment. The original Deloitte allowances followed extensive argument and had been made on a broad evaluative basis. It was therefore impossible to reconstruct the weight given to every factor for each month without reassessing the relevant fees in full.
3. Initial margin work. The court remained satisfied that Deloitte’s involvement in developing and pleading the initial-margin argument was limited. The argument was principally formulated by the claimant’s lawyers; the initial-margin calculations were largely produced by Navigant; and Deloitte’s greater involvement came after those calculations had been produced. The court had already allowed for Deloitte’s limited involvement when making the reductions.
4. Conclusion. The material relied on had been available during the earlier assessment and disclosed no new decisive evidence or material change. The greater reductions made in assessing the solicitors’ costs did not require equivalent reductions in Deloitte’s fees, because the solicitors had performed substantially more work on the initial-margin issue. The request to reconsider items 1707 to 1734 was refused, and the existing allowances remained unchanged.