Rebekah Vardy v Coleen Rooney

An appeal concerning alleged misconduct in costs budgeting engages an essentially evaluative and discretionary jurisdiction. “Unreasonable” conduct ordinarily means conduct that permits no reasonable explanation; “improper” conduct bears the hallmark of conduct regarded as improper by professional consensus. Mistake, error of judgment or negligence alone is insufficient, and the terms require a narrow construction.

On appeal, intervention is justified only for an error of law, a material error in reasoning, or a conclusion which no reasonable judge could have reached. A party may state in Precedent H incurred costs which its advisers consider reasonable and proportionate, even if actual costs are higher. Transparency is nevertheless required when relying on comparative costs figures. A failure of transparency may amount to poor judgment without crossing the threshold of misconduct.

The claimant had failed in defamation proceedings and had been ordered to pay 90% of the defendant’s costs on an indemnity basis. During costs budgeting, the defendant’s Precedent H figures for incurred costs represented costs considered reasonable and proportionate, rather than all actual costs incurred. The defendant’s advisers nevertheless made strong criticisms of the claimant’s higher incurred-cost figures without expressly explaining the different basis.

The Senior Costs Judge criticised the lack of transparency but declined to find unreasonable or improper conduct under CPR 44.11. The claimant appealed, arguing that the Judge had erred in assessing the possible assumptions made by the defendant’s solicitors and in failing to treat the submissions as misconduct. The central issues were the proper appellate approach and whether the evidence established conduct crossing the CPR 44.11 threshold.

1. Appeal dismissed. The Judge’s conclusion was an evaluative judgment. Appellate intervention was therefore confined to an error of law, an error in the reasoning process which vitiated the conclusion, or a conclusion which no reasonable judge properly directing himself could have reached.
2. The same restraint applied even though the primary facts were undisputed. Costs Judges possess particular experience relevant to whether conduct permits a reasonable explanation and whether it would be regarded as improper by professional consensus.
3. It was permissible in principle to state in Precedent H incurred costs which legal advisers considered reasonable and proportionate, even where actual incurred costs were higher. The Defendant’s advisers should nevertheless have explained the basis of their figures when mounting a strong attack on the Claimant’s costs.
4. The Claimant had not proved that the Defendant’s legal advisers knew, or clearly appreciated, that the parties were using different bases for calculating incurred costs. A real possibility remained that the Defendant’s advisers assumed that both parties were using reasonable and proportionate figures. That possibility supplied a reasonable explanation for the submissions and defeated the allegation of deliberate misleading or misconduct.
5. The lack of transparency was fairly criticised as an error of judgment, but the narrow threshold under CPR 44.11 was not crossed. Clear evidence that the advisers deliberately misled the Court, or that solicitors failed to correct a clearly misleading statement made by counsel, could have established improper conduct. No sanction issue therefore arose.

1. High Court (King’s Bench Division) [2025] EWHC 851 (KB): appeal from the Senior Costs Judge’s judgment dated 8 October 2024 dismissed.