Ferko v Ealing Magistrates Court & Ors

On a standard-basis costs assessment, the court must allow only costs that are reasonable and proportionate. Proportionality is assessed after reasonableness, by considering the matters in issue and the relevant factors in CPR 44.3(5). The court must balance proper compensation for the receiving party against protection of the paying party from excessive costs. Summary assessment is appropriate where the court is sufficiently familiar with the work undertaken and can avoid further delay and expense. A senior fee earner or counsel may be justified in principle, but extensive use of senior resources for routine work may warrant a percentage reduction of the overall costs.

The judgment concerned costs following the appellant’s successful appeal against a decision of Ealing Magistrates Court in a private prosecution under section 82 of the Environmental Protection Act 1990. The appeal had been allowed on 14 October 2024 and the matter remitted for retrial.

Two extant costs orders required the second, third and fourth respondents to pay costs. The issue was whether those costs should be summarily assessed or subjected to detailed assessment, and whether the sums claimed were reasonable and proportionate.

1. The court ordered summary assessment. The appeal hearing had lasted one day, the court had heard the substantive matter, and summary assessment would avoid further cost and delay. This was appropriate under CPR 44.6.

2. The costs fell to be assessed on the standard basis. Under CPR 44.3(1), (2) and (5), only costs that were reasonable and proportionate could be allowed, with any doubt resolved in favour of the paying party. The relevant considerations included the sums in issue, non-monetary relief, complexity, work caused by the paying party’s conduct, wider factors such as public importance, and vulnerability.

3. Following the approach in West v Stockport NHS Foundation Trust, the court first assessed the reasonableness of the costs claimed and then considered the proportionality of the total figure.

4. Proportionality did not require reducing costs to the lowest possible figure. It required a balance between properly compensating the receiving party and protecting the paying party from excessive expenditure. The court could reduce the overall figure even where individual items had not been specifically challenged.

5. The use and attendance of a Grade A fee earner could be justified in principle, but the extensive use of that grade for routine tasks, together with high attendance claims and substantial counsel’s fees, indicated inflation and disproportionality. The availability of a Grade C fee earner supported that conclusion.

6. The costs of the application to amend were reduced by 20% to £13,521.60, of which 75%, namely £10,141.20, was payable under the existing order. The costs of the substantive appeal were reduced by one third to £24,893.22. The parties were directed to file draft orders dealing with payment and ancillary matters.

• High Court (Administrative Court): The appeal from Ealing Magistrates Court was allowed on 14 October 2024 and remitted for retrial.
• High Court (Administrative Court): The present judgment determined the consequential costs assessment.