Various Claimants v News Group Newspapers Limited

A costs judge assessing costs has jurisdiction to interpret existing costs orders, but not to amend or replace them. Where an order reserves costs, the effect described in Civil Procedure Rules 1998, Practice Direction 44 is that the costs become costs in the case if no later order is made. In managed litigation involving common and individual costs, individual settlement orders providing that the defendant shall pay the claimant’s common costs may constitute the final orders that crystallise entitlement to costs previously reserved. An order directing immediate detailed assessment does not itself necessarily impose liability for payment. The court may permit later applications concerning reserved costs, but procedural finality may close that opportunity.

The claimants sought to recover, in a common costs bill, costs reserved by an order made at a case management conference on 5 March 2021. The order treated the CMC costs as common costs, subject to a reservation of the claimants’ costs of certain adjourned applications.

The litigation involved separate individual claims and continuing common costs under a costs arrangement order. Most of the relevant claimants had settled their individual claims, and their settlement orders required the defendant to pay specified individual and common costs. The defendant argued that the reserved costs had not yet converted into costs in the case because the managed litigation continued and a later order remained possible. The central issue was whether the settlement orders were final orders sufficient to found recovery of the reserved costs.

1. Jurisdiction of the costs judge. The Senior Courts Costs Office had no jurisdiction to amend or substitute the costs orders made in the managed litigation. Its task was to interpret those orders for the purpose of detailed assessment, consistently with Cope v United Dairies (London) Ltd (1962) 2 QB 33.
2. Meaning of the relevant orders. Under CPR 44.2 and Practice Direction 44, an order for costs reserved defers the costs decision, but if no later order is made the costs become costs in the case. The order of 26 November 2021 directed immediate detailed assessment of the common costs, but did not itself state that the defendant was liable to pay them. It therefore was not, by itself, the final order giving the claimants a right to payment.
3. Settlement orders as final orders. The individual settlement orders expressly provided that the defendant should pay the claimant’s individual costs and the claimant’s share of the common costs. They were therefore the documents capable of founding the claimants’ right to detailed assessment and of converting the reserved costs into costs in the case. The structure of the litigation and the temporal difficulties identified by the defendant did not displace that conclusion.
4. Later applications. It remained possible in principle for the defendant to apply for an order dealing specifically with the reserved costs, even after individual claims had settled. However, the opportunity to do so closed when the order for immediate detailed assessment was made on 26 November 2021. The court preferred an anomalous conclusion to an unjust one, adopting the approach expressed by Maurice Kay LJ in Crane v Canons Leisure [2007] EWCA Civ 1352.
5. Disposition. Claimants with individual settlement orders were entitled to claim costs relating to the matters reserved by the order of 5 March 2021. The assessment of the CMC costs was to proceed accordingly.

First-instance decision on entitlement to claim specified reserved costs in the detailed assessment of a common costs bill. No prior appellate decision is stated in the judgment.