Michael Geoffrey Willis v GWB Harthills LLP & Ors

A late Notice of Commencement does not invalidate detailed assessment proceedings. Under Civil Procedure Rules 1998, r 47.8, lateness may lead to disallowance only where the paying party has obtained an order requiring commencement within a specified time and that order is breached. Once a Notice of Commencement is served, the paying party must serve points of dispute or risk a default costs certificate.

An application to set aside such a certificate is governed by r 47.12, Practice Direction 47 and the relief-from-sanction principles in Denton. The applicant must show a good reason why assessment should continue and provide draft points of dispute. The merits of an appeal against the underlying costs order, or issues concerning enforcement and ability to pay, are generally matters for the court or tribunal dealing with the order or enforcement, not the assessing court.

The applicant was the paying party under an Employment Tribunal costs award of 16 December 2022, which capped the respondents’ Claim 2 costs liability at £210,000 subject to detailed assessment in the County Court. The respondents served a Notice of Commencement on 19 October 2023 and obtained a default costs certificate for £210,151 after the applicant failed to serve points of dispute.

The applicant sought to set aside the certificate and the Notice of Commencement, relying principally on late service, alleged double counting and defects in the bill, his health and vulnerabilities, unresolved Tribunal matters, and prospective challenges to the underlying costs award. The central questions were whether the proceedings were invalid and whether there was good reason for detailed assessment to continue.

1. Application dismissed. The default costs certificate was not set aside. The respondents were awarded £2,750 for the costs of the application.
2. The SCCO was directed under CPR 47.4(2) to be the appropriate office for the application concerning the default costs certificate. Although the certificate had been issued in an office that was not the appropriate office under Practice Direction 47, CPR 3.10 meant that the procedural error did not invalidate it.
3. Late service of a Notice of Commencement does not itself deprive the receiving party of the right to recover costs. Under CPR 47.8, disallowance for delay requires an order compelling commencement within a specified time, followed by non-compliance. No such order had been sought or made.
4. The applicant was therefore required by CPR 47.9 to serve points of dispute after receiving the Notice. His belief that the Notice was ineffective, and his expectation that the respondents should answer his complaints first, did not provide a good reason for failing to comply. A litigant in person remains subject to the same procedural obligations as a represented party, as stated in Barton v Wright Hassall LLP.
5. Applying CPR 47.12, Practice Direction 47, paragraph 11.2, CPR 3.9 and the three-stage guidance in Denton v TH White Ltd, the default was serious and significant, there was no good reason, and the circumstances did not justify relief. The application was made promptly, but promptness could not compensate for the absence of draft points of dispute or a demonstrated prospect of reducing the bill below the Tribunal’s £210,000 cap.
6. The assessing court was concerned with whether the detailed assessment should continue, not with the merits of an appeal or reconsideration application concerning the underlying costs award. Assessment and enforcement were distinct. The applicant’s means, possible profit share, health, and any application for a stay of enforcement were matters for the appropriate Tribunal, appeal court or enforcement court.
7. The applicant’s unparticularised allegations of double accounting, inconsistent rates, defects in the bill and non-compliance with Tribunal requirements did not establish a good reason for assessment to continue. The respondents’ costs were summarily assessed at £2,750.

First-instance application in the Senior Courts Costs Office concerning a default costs certificate arising from an Employment Tribunal costs award. The judgment records that the underlying costs award was subject to proposed proceedings before the Employment Appeal Tribunal, but those merits were not determined in this application.