XX (a protected party by her husband and litigation friend YY) & Anor v Jordan Young & Anor

Permission to appeal a detailed assessment decision may be granted only where the proposed appeal has a real prospect of success or there is some other compelling reason for it to be heard. A costs judge must not use proportionality as a rescue mechanism to introduce issues which were not pursued before the order for costs was made. A detailed assessment is not a substitute for a trial of fundamental dishonesty, nor may it retrospectively impose time-based, issues-based or percentage-based limits absent an appropriate costs order. Misconduct under CPR 44.11 has a wider and distinct scope from fundamental dishonesty under Criminal Justice and Courts Act 2015, section 57.

The second defendant sought permission to appeal the costs judge’s judgment dated 4 August 2025, which concluded the detailed assessment of the second claimant’s quantum-only bill and applied a further proportionality reduction. The defendant argued that surveillance evidence and the claimant’s alleged exaggeration justified further reductions for conduct, later recovery, future losses and accommodation.

The application raised whether the assessment could address alleged fundamental dishonesty or related conduct after quantum had been settled and judgment entered, and whether the proposed appeal satisfied either limb of CPR 52.6(1).

1. Application dismissed. The proposed appeal had neither a real prospect of success under CPR 52.6(1)(a) nor another compelling reason under CPR 52.6(1)(b).
2. Proportionality is not a rescue submission enabling a costs judge to consider reductions based on points which the paying party failed to pursue. Once the line-by-line assessment had produced a proportionate total, the judge was not required to search for further reductions. Disagreement with the resulting figure was not a sufficient appeal ground.
3. The settlement sum was expressly net of contributory negligence and could not properly be treated as a gross figure for proportionality purposes. Competing valuations, litigation risk and settlement appetite were distinct from the requirement to prove the claim. The claimant was not required to respond formally to surveillance material disclosed informally without permission or a procedural direction.
4. A detailed assessment could not retrospectively determine a notional date of full recovery or treat particular heads of loss as producing no recovery where the settlement did not establish that conclusion. Such matters required an appropriate costs order or a separate determination. The paying party could have sought time-limited, issues-based or percentage-based costs protection under CPR 44.2(6)(c), but had not done so.
5. CPR 44.11 permits disallowance of assessed costs where conduct connected with the proceedings or assessment is unreasonable or improper. It serves a general costs-control function and is not confined to fundamental dishonesty. However, the defendant could not use CPR 44.11 to obtain, in substance, a retrospective finding of fundamental dishonesty based on matters which should have been determined at trial under section 57 of the Criminal Justice and Courts Act 2015.
6. The agreed costs order could not be reopened after the event to impose limitations which the defendant had not secured. The alleged conduct did not meet the CPR 44.11 threshold.
7. There was no adequate evidence of wider professional or systemic implications capable of constituting another compelling reason for an appeal. There was no supporting data or evidence from the Federation of Insurance Lawyers.
8. There was no order as to the costs of the permission hearing.

The application sought permission to appeal the costs judge’s own judgment dated 4 August 2025 concerning proportionality and the detailed assessment of the second claimant’s costs. Permission was refused.