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Order for costs and the assessment of costs

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The relationship between an order for costs and the assessment of costs has been clarified recently in an important case concerning the connection between a trial judge and a costs judge.

The relationship between an order for costs and the assessment of costs has been clarified recently in an important case concerning the connection between a trial judge and a costs judge.

In the case of Drew v Whitbread, heard in the Court of Appeal on 9 February 2010, the Claimant appealed a decision indicating that where a trial judge ordered for costs to be assessed on the standard basis, the costs judge could thereafter assess the costs as if the case had instead been allocated to the fast track.

The Claimant had brought a successful claim for personal injury, pleading that he had suffered injuries to the lower spine with on-going symptoms, and that the financial value of his claim exceeded £15,000. Ultimately his special damages claim totalled some £30,000. The case was dealt with on the multi-track, and the trial went into a second day. The trial judge found contributory negligence, and crucially found that the Claimant would not have required the level of care and assistance as claimed. The claim was eventually settled for £9,291.56, which exceeded a payment in previously made by the Defendant under Part 36. Accordingly it was ordered that the Defendant pay the Claimant's costs on the standard basis if not agreed.

The Claimant's costs were disputed on the basis of proportionality and in light of alleged exaggeration of the claim. At the commencement of detailed assessment the costs judge held that she would be assessing the costs as if the matter had been allocated to the fast track. On appeal this decision was upheld.

On appeal of this decision the Claimant submitted that if a party wished to argue that a case was, in reality, a fast track case, and in particular that it was a case that should only have lasted a day, that had to be raised with the trial judge, and if not raised with the trial judge could not be raised with the costs judge. It was further submitted that the costs judge had no jurisdiction to rule that costs should be assessed as a fast track case.

The Lord Justices were assisted in this appeal by Senior Costs Judge Peter Hurst, and ruled that it was open to a costs judge assessing the costs of a multi-track case to hold that a case should have been heard on the fast track, and to limit the costs allowed to those prescribed for the fast track. While it would have been helpful for such issues to have been raised with the trial judge, there was no rule that a failure to raise a point before the trial judge would preclude the raising of that point before the costs judge on detailed assessment.

Where a case had been heard on the multi-track and costs awarded on the standard basis, the correct procedure for a costs judge was not simply to rule that costs should be assessed on the fast track basis, as that would be to rescind the trial judge's order, but it was permissible to assess costs on the standard basis taking into account that the case should have been allocated to the fast track.

If you would like further information about any of the matters raised in this article then please contact Paul Elder (a.mcaulay@clarionsolicitors.com) of our Costs and Litigation Funding Department.

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