THE SUMMARY ASSESSMENT OF COSTS: WHEN IT IS (ABOUT) A LOTTERY

I have mentioned before how many people are interested in reading cases about the summary assessment of costs.  There is an example in the judgment of Senior Master Fontaine in  Goodram & Anor v Camelot UK Lotteries Ltd [2020] EWHC 2499 (QB).

THE CASE

The Master granted the defendant summary judgment in a case where the claimants were seeking to enforce a lottery win of £4 million. The Master held that the defendant had good grounds for refusing to pay (there being a suspicion that the scratch cards had been purchased by an unauthorised means).

THE JUDGEMENT ON COSTS
Costs of the Application and the Proceedings
    1. The parties agreed that I should deal with the costs consequential upon the decision made on the basis of written submissions and without a hearing.
    1. There are two issues of costs, the costs of Camelot’s application for summary judgment and the costs of the proceedings. The Claimants have conceded that Camelot is entitled as a matter of principle to its costs of both the application and of the proceedings. The Claimants submitted that both these sets of costs should be summarily assessed under CPR 44.6 and Camelot is content for the court to proceed on this basis, provided the court is content that it has the material before it to do so.
    1. The court’s attention was drawn to para 2.7.17 of the QB Guide, which provides that:
“The Court shall consider in all cases where fixed costs do not arise whether to make a summary assessment. It should do so at the conclusion of a hearing which has lasted not more than one day, in which case the assessment will deal with the costs of the application. If the hearing disposes of the whole claim the Court may make an assessment of the costs of the whole claim.”
    1. This echoes Practice Direction 44 at para 9.1:
When the court should consider whether to make a summary assessment
Whenever the court makes an order about costs which does not provide only for fixed costs to be paid the court should consider whether to make a summary assessment of costs.”
    1. I am satisfied that I have sufficient material to enable me to summarily assess both the costs of the application and costs of the proceedings, and accordingly will do so.
The costs of the application
    1. The total costs claimed by Camelot in its statement of costs for the application amount to £15,255 plus VAT (i.e., £18,255 inclusive of VAT), comprising Counsel’s brief fee (£15,000) and the application issue fee (£255). No costs are sought in respect of Camelot’s inhouse legal team.
    1. The Claimants submit that the costs are too high. It is noted that the costs are Counsel’s fees and the court fees alone, and the fact that Camelot has chosen not to claim for any of its own in-house legal costs is not a relevant factor to justify the high level of Counsel’s fees. Camelot’s anticipated costs for the application as approved in its Precedent H is £10,000 and it is submitted that ought to be the maximum allowed on summary assessment.
    1. Camelot has noted that the costs of the summary judgment application include the costs of the hearing on 9 July 2020, not anticipated in the approved amount in the budget.
The costs of the proceedings
    1. The Claimants note that Camelot’s approved costs in its Precedent H are £68,000 in total and that when the costs of a case management conference, pre-trial review, trial preparation and trial are deducted, this leaves a balance of approximately £28,000. Camelot reach a similar figure, £27,006, by adding incurred costs (pre-action costs of £8,025 and statements of case costs of £11,475) and estimated costs of the case management conference of £5,000, disclosure of £1,000 and witness statements of £7,500.
    1. The Claimants submit that the pre-action costs of £8,025 are irrecoverable because these relate to time spent, or general advice taken, which Camelot is duty bound to do under the terms of its licence to operate the National Lottery. The Claimants also submit that Camelot’s costs relating to statements of case at £11,475 are excessive for a defence and Part 18 questions with neither document being particularly lengthy or complicated. The Claimants submit that the court should adopt a broad brush approach to assessing the costs of the claim and that the most appropriate figure for the cost of the claim would be in the region of £10,000.
    1. Camelot submits that it is not correct that its pre-action costs are irrecoverable, and that no authority is cited by the Claimants for that submission. These are costs which relate to the proceedings and which may therefore be properly claimed from the Claimants.
Discussion
    1. CPR 44.4 (1) states that
“The court will have regard to all the circumstances deciding whether costs were –
(a) if it is assessing costs on the standard basis –
(i) proportionally and reasonably incurred; or
(ii) proportionate and reasonable in amount,”
    1. CPR 44.4 (3) also sets out a list of factors which the court will also have regard to:
  • the conduct of the parties
  • the amount or value of any money or property involved;
  • the importance of the matter to all the parties;
  • the particular complexity of the matter of difficulty or novelty of the questions raised;
  • the time spent on the case;
  • the place where the circumstances in which work or any part of it was done;
  • the receiving party’s last approved or agreed budget.
    1. The Guide to the Summary Assessment of Costs para 14 (White Book Vol 1 44 SC.5) states that:
“Costs will be proportionate if they bear a reasonable relationship to: (a) the sums in issuing proceedings; (b) the value of any known monetary relief in issuing the proceedings; (c) the complexity of the litigation; (d) any additional work generated by the conduct of the paying party and; (e) any wider factors involved in the proceedings, such as reputational public importance. “
    1. This was a high value claim for £4 million. It was of considerable importance to both parties. The issue of whether they had won £4 million would have been of considerable importance to both Claimants, who it appears are largely without means. It would also have been of considerable importance to Camelot as to whether they would be contractually bound to pay out such a large sum in such circumstances. It was not a straightforward claim, as is apparent from this judgment. It was further complicated by the manner in which the claim was pleaded, and the fact that issues were raised on the application which had not been pleaded.
    1. With regard to the costs of the application, the fact that Counsel’s fees are higher than might be allowed if solicitors’ costs were also included, does not necessarily mean that they are not reasonable and proportionate. It is also correct that the sum approved for the contingency of a summary judgment application in the budget of £10,000 relates only to the anticipated substantive hearing. The fees of £15,000 relate to two hearings, one in July 2020 of approximately one hour or slightly longer, and the other a half day hearing for the substantive application. That total amount is entirely reasonable and proportionate for the work involved, taking into account all the factors listed above. Accordingly I summarily assess the Defendant’s costs of the application in the sum claimed of £18,255, inclusive of VAT and the court fee.
    1. With regard to the costs of the proceedings, I am content to follow the approach of both parties to assess these by reference to the budgeted costs. I do not accept the submissions on behalf of the Claimants that Camelot is not entitled to claim pre-action costs. These are costs related to the proceedings and a successful party is entitled to recover these costs. The sum of £8,025 for pre-action costs is reasonable and proportionate.
    1. The sum of £11,475 for statements of case relates to consideration of the Claim Form and Particulars of Claim as well as drafting of the defence. The inadequate drafting of the Particulars of Claim necessitated drafting a request for Part 18 information and considering the replies to the request. The sum claimed is reasonable and proportionate for the work done, taking into account the value of the claim and the complexity of the legal issues raised.
  1. Accordingly, I summarily assess the costs of the proceedings in the sum of £27,006 plus VAT of £5,401.20 giving a total of £32,407.20.IS