Jerry Isah, R (on the application of) v The Secretary of State for the Home Department

A summary assessment is, by definition, an assessment by the judge who heard the case or application. Under the Civil Procedure Rules, the court may either make that assessment itself or order a detailed assessment by a costs officer. It has no power to order a summary assessment by a different judge or costs officer.

The overriding objective and general case-management power cannot override those express limits. If a same-day assessment is impracticable, directions may be given for it to be completed later by the same judge. A detailed assessment remains available where appropriate.

Mr Isah succeeded in a claim for damages for unlawful detention. A costs judge later conducted a detailed assessment of his costs. Following a partially abandoned appeal concerning that assessment, Linden J made costs orders and directed that the resulting costs be summarily assessed, if not agreed, by a Master in the Senior Courts Costs Office.

Mr Isah appealed from that direction. The central question was whether a judge who awards costs may direct a summary assessment by another judge, rather than undertake it personally at the hearing or at a later hearing.

1. Appeal allowed. The direction that a Master in the Senior Courts Costs Office summarily assess the costs was set aside. The summary assessment was remitted to Linden J to conduct at a convenient time.
2. The definition of summary assessment in Civil Procedure Rules r 44.1(1) is unambiguous. It is an assessment by the judge who heard the case or application. This is fundamentally different from a detailed assessment, which is undertaken by a costs officer. Rule 44.6(1) gives the court a choice only between making a summary assessment and ordering a detailed assessment by a costs officer.
3. The word “may” in r 44.6(1) concerns that binary choice. It does not create a general discretion to delegate a summary assessment. The contrasting use of “make” for summary assessment and “order” for detailed assessment reinforces that construction.
4. Practice Direction 44 was consistent with that reading. Paragraph 9.7 permits directions for a further hearing before the same judge if a summary assessment cannot be completed on the day. Its permissive language concerns whether directions are given, not whether another judge may conduct the assessment. A practice direction cannot override the Rules.
5. The court disagreed with the contrary reasoning in [2015] EWHC 1687 (TCC). Neither the overriding objective nor the general power in r 3.1(2)(m) can displace the express scheme in r 44.6. The court accepted that another judge might sometimes be able justly and proportionately to carry out a broad-brush assessment, but held that the Rules do not presently permit it. That was a matter for possible consideration by the Rules Committee.
6. Summary assessment remained appropriate because the hearing before Linden J lasted less than one day and a detailed assessment would be disproportionate. There was no order for the costs of this appeal, save for the separate costs order concerning the respondent’s application to extend time.

• Court of Appeal (Civil Division): allowed the appeal and remitted the summary assessment to Linden J: [2023] EWCA Civ 268.
• High Court (King’s Bench Division): Linden J made costs orders and directed a summary assessment by a Master in the Senior Courts Costs Office: [2022] EWHC 1264 (QB).
• Senior Courts Costs Office: Master Brown had conducted the earlier detailed assessment and made no order as to the costs of that assessment process.