David Brierley v Frank Otuo & Ors

An order apportioning a costs schedule between two applications for the purpose of calculating a payment on account does not ordinarily limit recovery to that percentage of the costs actually incurred or assessed for the successful application. Nor does it necessarily cap recovery at the amount in the earlier schedule. A bill is not procedurally defective merely because it includes costs relating to an adjourned application whose costs were reserved, particularly where a later order leaves liability unresolved. Such issues can be raised in points of dispute or dealt with by the originating court.

The receiving party served a bill of costs following orders made in earlier proceedings. The paying party applied for the bill to be redrawn, arguing that an earlier order apportioned 60 per cent of a costs schedule to a civil restraint order application and that the bill improperly exceeded that proportion and included costs of a separate application to debar him from detailed assessment proceedings.

The debarment application had been adjourned with costs reserved. Eleven days later, a consent order vacated its hearing, dismissed the application and left its costs to be determined at a later hearing. The central issues were whether the bill contravened the earlier order and whether inclusion of the unresolved debarment costs required the bill to be redrawn.

1. Application dismissed. The 60/40 apportionment in the recital to the earlier order was understood as an allocation of a combined costs schedule between two applications, enabling the court to calculate an appropriate payment on account for the application it had heard. It did not limit the receiving party to recovering 60 per cent of the actual costs incurred or assessed for that application.
2. The earlier order and the civil restraint order did not cap recoverable costs at the total sum stated in the 15 March 2017 costs schedule. The amount in that schedule could be relied on by the paying party as an argument that a later bill was unreasonable or disproportionate, but that was an issue for points of dispute and detailed assessment.
3. The practice direction to Civil Procedure Rules 1998 rule 44.2, paragraph 4.2, states the practical effect of costs being reserved: absent a later order, the costs become costs in the case. Here, however, a later consent order dismissed the debarment application and left its costs unresolved. The receiving party was therefore entitled to include the relevant costs in the bill without that inclusion making service procedurally defective.
4. Whether the debarment costs were ultimately recoverable was a matter for detailed assessment, written points of dispute and replies, or possible determination by the originating court. Their inclusion did not justify delaying the assessment or requiring a fresh bill.
5. The costs of the application were reserved to the conclusion of the detailed assessment. A separate remote hearing could be listed if the bill were compromised.