Steven Mlundira v The Secretary of State for the Home Department

An appellate court should adopt a conservative approach to an appeal against a costs order. It may intervene only where the lower court erred in principle, failed to consider a material matter, considered an immaterial matter, or reached a decision that was plainly wrong.

Detailed assessment proceedings are commenced by serving both the notice of commencement and the required bill of costs. Failure to serve the bill does not prevent the time for serving points of dispute from running from service of the notice. A paying party may therefore reasonably apply proactively to protect its position and need not wait for a default costs certificate.

The general costs rule may be displaced after considering all the circumstances, including unreasonable conduct and proportionality.

The appellant had succeeded in judicial review proceedings concerning immigration detention and was awarded his reasonable costs. He subsequently commenced detailed assessment proceedings but served a notice of commencement without a bill of costs.

The respondent applied to strike out the defective proceedings. The appellant later served a bill and sought summary judgment on, or strike out of, the respondent’s application. Costs Judge Brown dismissed both applications but ordered the appellant to pay 80% of the respondent’s costs, assessed at £1,440.

The appellant challenged that costs order on the grounds that he was the successful party, that the respondent’s application was premature, and that the order was plainly wrong. The central issues were the effect of the detailed assessment rules and the proper appellate approach to a discretionary costs decision.

1. Appeal dismissed. The order of Costs Judge Brown stood. The appellant was ordered to pay the original £1,440 and the respondent’s appeal costs of £4,596.48 within 21 days.
2. The appeal court must review, rather than rehear, the lower court’s decision unless the interests of justice require a rehearing. Costs appeals attract a particularly conservative approach. Intervention requires an error of principle, failure to take account of a material matter, consideration of an immaterial matter, or a decision that was plainly wrong.
3. Under Civil Procedure Rules 1998, r 47.6(1), detailed assessment proceedings require service of the notice of commencement and the bill of costs. The appellant had served the notice but not the bill.
4. Despite that defect, r 47.9(2) at least arguably required points of dispute to be served within 21 days of the notice of commencement. The respondent was therefore justified in applying to strike out or otherwise protect her position. She was not required to wait for a request for a default costs certificate, which is issued administratively without notice and would have required a further application to set it aside.
5. The fact that the respondent’s application was dismissed did not make the appellant the successful party in substance. In any event, the Judge was entitled to depart from the general rule after considering the appellant’s refusal to engage with reasonable proposals, his failure to serve a compliant bill, further misconceived applications and other conduct. The appellant’s vulnerabilities were relevant but had been taken into account.
6. The Judge’s reasons, read fairly and without narrow textual analysis, demonstrated a rational exercise of the broad costs discretion. The appeal court found no basis for intervention. On the appeal costs, the respondent’s failure to serve a Respondent’s Notice justified a modest 10% reduction, and proportionality justified a £5,000 cap before that reduction.

• High Court (King’s Bench Division) — [2025] EWHC 189 (KB): appeal dismissed; Costs Judge Brown’s order upheld, subject to costs of the appeal being summarily assessed at £4,596.48.
• Senior Courts Costs Office — [2025] EWHC 95 (SCCO): Costs Judge Brown dismissed both interim applications and ordered the appellant to pay 80% of the respondent’s costs, summarily assessed at £1,440.