IF YOU WANT YOUR COSTS ASSESSED IMMEDIATELY AFTER AN APPEAL OR INTERLOCUTORY HEARING THEN YOU HAVE TO ASK : OTHERWISE YOU’LL JUST HAVE TO WAIT

 Does a successful litigant on an interlocutory issue have a right to have their costs assessed immediately? That was the question addressed by the Court of Appeal in Khaira & Ors v Shergill & Ors [2017] EWCA Civ 1687 .  This was an unusual case in that the only matter at issue was when costs should be assessed.  The key point that comes from the case is that if you want your costs to be assessed on an interlocutory application or appeal [in those cases where summary assessment does not take place] you have to ask for immediate assessment if you want it. In the absence of an express order for immediate assessment the court cannot assess costs until the end of proceedings.  Further a costs judge does not have the power to order immediate assessment in these circumstances.

 

“..it must be borne in mind that there will be an immediate assessment if the court so orders. All that need happen is for the receiving party to apply for an immediate assessment. “

THE CASE

The claimant had been successful in an appeal to the Supreme Court, the Supreme Court ordered “(1) The respondents pay the appellants’ costs in the Supreme Court and the Court of Appeal, the amount of those costs to be assessed on the standard basis if not agreed between the parties, (2) The respondents pay the appellants £150,000 on account of their costs in the Supreme Court and the Court of Appeal.”

The matter subsequently went to trial and the claimants were successful. The costs of that trial were stayed pending an appeal.  The issues were:

THE ISSUES

  1. Was the claimant entitled to an immediate assessment without an immediate order to that effect?
  2. If the court has not made an order for immediate assessment can a costs judge make such an order.
  3. Whether, in this case, the Supreme Court had made an order which entitled the claimant to immediate assessment of costs incurred in the Court of Appeal.

THE RULES

    1. CPR 47.1, which is headed “Time when detailed assessment may be carried out”, provides:

“The general rule is that the costs of any proceedings or any part of the proceedings are not to be assessed by the detailed procedure until the conclusion of the proceedings, but the court may order them to be assessed immediately. (Practice Direction 47 gives further guidance about when proceedings are concluded for the purpose of this rule).”

THE COURT OF APPEAL’S CONCLUSION: NO IMMEDIATE ASSESSMENT WITHOUT AN EXPRESS ORDER

The Court carried out a detailed consideration of the word “proceedings” it concluded that CPR 47.1  meant that, without an express order, costs were to be assessed at the end of the action.

The issue of whether there is an automatic immediate assessment of costs depends on its meaning and effect. Unless CPR 47.1 has no application at all to appeals, the effect of paragraph 1.1 of 47PD is, in my judgment, that there is no automatic detailed assessment of the costs of an interlocutory appeal and that an order of the court is required, consistently with the views of the judges in this court and in the High Court who have previously considered this point

THE OBVIOUS ANSWER – ALL THE RECEIVING PARTY HAS TO DO IS ASK

I acknowledge the force of the policy reasons advanced by Mr Mallalieu to justify a reading of CPR 47.1 that would mean that the costs of interlocutory appeals were immediately assessed unless the court ordered otherwise. But it must be borne in mind that there will be an immediate assessment if the court so orders. All that need happen is for the receiving party to apply for an immediate assessment. Having said that, it may be that the Civil Procedure Rules Committee will feel it appropriate to consider what the default position should be”

THE COSTS JUDGE DOES NOT HAVE A POWER TO ORDER IMMEDIATE ASSESSMENT IN THESE CIRCUMSTANCES

The court also rejected an argument that the costs judge had any power to order immediate assessment of costs in these circumstances.

THE SUPREME COURT DID NOT ORDER THAT THE COURT OF APPEAL COSTS BE ASSESSED FORTHWITH

The Court of Appeal also rejected the argument that the terms of the Supreme Court order meant that costs were ordered to be paid forthwith.