Nazim Choudhury v Shauna Mukherjee

An appeal from a provisional assessment under Civil Procedure Rules 1998, CPR 47.15, is not available. A party wishing to challenge the assessment must request an oral hearing within the prescribed period; any later appeal is confined to issues determined at that hearing. An extension of time is governed by the three-stage test in Denton v TH White Ltd: the seriousness and significance of the default, the reason for it, and all the circumstances, including efficient and proportionate litigation and compliance with rules and orders. A lengthy, unexplained delay, particularly where the party knew that assessment was under way, will ordinarily defeat an extension. Defects which were not raised during the assessment process cannot normally be revived years later.

The Defendant sought to appeal a Final Costs Certificate issued on 10 March 2016, following provisional assessment of the Claimant’s costs. She filed the appeal notice on 27 June 2023, more than seven years after the 21-day period in CPR 47.23 had expired. She alleged defective service, duplication of costs, defects in the bill, and misconduct under CPR 44.11.

The appeal was transferred from the King’s Bench Division to the Senior Courts Costs Office. The central questions were whether time should be extended and, if so, whether an appeal lay from the provisional assessment and whether the stated grounds had merit.

1. Extension of time refused; appeal dismissed. The Defendant’s breach of the 21-day time limit in CPR 47.23 was serious and significant. Applying the test in Denton v TH White Ltd [2014] EWCA Civ 906, there was no good reason for the seven-year delay. The Defendant knew that the bill had been sent for assessment, and the judge rejected her evidence that she was unaware of the Final Costs Certificate. Health difficulties, unsupported by medical evidence, did not explain the delay.
2. There was no right of appeal from the provisional assessment. Under CPR 47.15(7) and (8), a party wishing to challenge the assessment had to request an oral hearing within 21 days and identify the items challenged. If no request was made, the provisional assessment became binding save in exceptional circumstances. Any later appeal would have been confined to issues determined at that oral hearing. The principle in PME v The Scout Association [2019] EWHC 3421 (QB) was binding and meant that the appeal had no prospect of success.
3. The stated grounds were in any event weak or untenable. Service of the Notice of Commencement and bill was valid by post and email. Even if email service alone had been defective, the Defendant had accepted the bill and served Points of Dispute, and CPR 3.10 could have dispensed with a technical defect. The late Notice of Commencement did not invalidate the bill under CPR 47.8 absent an application requiring service, although interest might have been challenged at the time.
4. The costs awarded on the earlier set-aside application were distinct from the costs of the original claim, which remained assessable. Questions about counterclaim items were matters for assessment and had not been raised in 2015. The bill’s identification of fee-earner categories and hourly rates was not a basis for the appeal; AKC v Barking, Havering & Redbridge University Hospitals NHS Trust [2021] EWHC 2607 (QB) established the later distinction between electronic spreadsheet bills and paper bills, and the Defendant had not raised the point when it mattered.
5. The Claimant was entitled to proceed to detailed assessment after settlement offers were rejected. The evidence disclosed no misconduct engaging CPR 44.11. The court also concluded that the CPR provisions concerning totally without merit findings did not apply to an appeal under CPR 47.23.

• High Court (Senior Court Costs Office): The appeal from the Final Costs Certificate was transferred to the Senior Courts Costs Office by Mr Justice Soole on 16 October 2023. Costs Judge Leonard refused an extension of time and dismissed the appeal.
• County Court at West London: Judgment for the Claimant was given on 24 March 2014, with costs to be assessed. A Final Costs Certificate was issued by the Senior Courts Costs Office on 10 March 2016.