Tendring District Council v Secretary of State for Work and Pensions & Anor

Under rule 44.11 of the Civil Procedure Rules 1998, costs may be disallowed where conduct before or during proceedings, or in assessment proceedings, is unreasonable or improper. A high costs claim requiring scrutiny does not, without more, establish conduct of that character. A successful party is entitled to its costs, subject to detailed assessment where the amount is not agreed. A separate costs protection order is unnecessary where the result already carries a consequent costs order.

This was a costs judgment following the dismissal of Tendring District Council’s appeal from the Upper Tribunal (Administrative Appeals Chamber). CD, the second respondent, sought £10,115 in costs, based on 520 hours of work at £19 per hour. Tendring argued that the claim was fanciful and that CD’s conduct was unreasonable or improper under CPR 44.11(2)(a), seeking no order for costs. The issues were whether CD should receive costs, whether her costs should be disallowed for unreasonable or improper conduct, and whether a Costs Protection Order was required.

The Court of Appeal rejected Tendring’s objection and awarded CD her costs of the appeal, subject to detailed assessment if agreement could not be reached.

1. CPR 44.11(1)(b) and (2)(a) permits the court, where a party’s conduct before or during proceedings or in assessment proceedings appears unreasonable or improper, to disallow all or part of the costs being assessed.
2. The court was not satisfied that CD’s conduct of the appellate proceedings could fairly be described as unreasonable or improper. The fact that the claim was high, and that the claimed 520 hours required scrutiny, did not justify depriving CD of an order for costs or disallowing all her costs.
3. Tendring had lost the appeal, while CD had succeeded in its dismissal. On that basis CD was entitled to her costs. The amount recoverable remained subject to detailed assessment by a costs judge if the parties could not agree.
4. In light of the result of the appeal and the consequent costs order, CD’s application for a Costs Protection Order was unnecessary.

1. Court of Appeal (Civil Division): Following dismissal of Tendring’s appeal, CD was held entitled to her costs. The amount was left to agreement or detailed assessment. The Court’s decision is reported at [2024] EWCA Civ 1518.
2. Upper Tribunal (Administrative Appeals Chamber): Tendring appealed from a decision of Upper Tribunal Judge Perez. No citation or further outcome is stated in this judgment.