COST BITES 227 : THE JUDGE WAS RIGHT TO ORDER THE CLAIMANT TO PAY 80% OF THE COSTS OF TWO APPLICATIONS: DECISION UPHELD ON APPEAL
I am grateful to James Packer of Duncan Lewis for sending me a copy of the judgment of Mrs Justice Hill in Mlundira -v- The Secretary of State for the Home Department [2025] EWHC 189 (KB), a copy of which is available here. In her judgment Mrs Justice Hill upheld the decision of Costs Judge Brown that the appellant should pay the costs of an application that the respondent had made. A copy of the decision is available here Mlundira
“… the Judge was fully entitled to take an adverse view of the Appellant’s conduct. He had (i) refused to engage with the Respondent when the latter asked for a telephone call so that she could explain her position on 21 December 2021, before the application was made; (ii) refused to engage with the Respondent’s sensible proposals in her 21 December 2021 email; (iii) refused to engage with her 7 February 2022 letter, which made sensible proposals for the future conduct of the proceedings; (iv) continued to threaten to make applications for wasted costs and asserted that the Respondent’s position was an abuse of process, when it plainly was not; and (v) did all of these things despite failing to serve a bill of costs which meant that the entirety of the detailed costs proceedings were defective.”
KEY PRACTICE POINTS
The key point here is to make sure that the bill of costs is served when a notice of commencement is served.
Also it is to be noted that the costs claimed by the appellant are £14,480 in total. The costs the appellant were ordered to pay at the initial hearing were £1,440, the costs ordered to be paid on the appeal were £4,596.48. The appellant’s costs of the appeal were said to be £9,506.60.
Finally it is clear that the respondent’s submissions about the need for costs to be proportional and should be limited to £5,000 came back to haunt them, slightly, when the judge was considering the respondent’s own costs.
THE CASE
The appellant brought judicial review proceedings, the matter was resolved in the appellant’s favour and the respondent was ordered to pay the appellant’s costs.
The appellant sought to issue detailed assessment proceedings. An N252 was sent with a notice of commencement and counsel’s fee notes. However bill of costs were sent.
The respondent then asked for a bill of costs, failing which they would make an application to strike out the detailed assessment proceedings. The appellant responded stating that it was for the respondent to file Points of Dispute and that the threat to apply to strike out the proceedings was an abuse of process “for which the respondent would be liable in wasted costs”.
The respondent on the 23rd December issued an application to strike out the assessment proceedings, together with a “holding” Points of Dispute which dealt only with counsel’s fees.
On the 24th December 2021 the appellant served a bill of costs which had been signed on the 30th November 2021, and insisted that finalised Points of Dispute be served by 12.00 pm that day.
The respondent replied stating that this was impracticable and proposing that the Points of Dispute be served by the 14th January 2022. They also stated that the respondent would be seeking the costs of making the application.
THE APPELLANT’S APPLICATION
The appellant responded by filing an application seeking summary judgment, or strike out of the respondent’s application. A series of allegations of misconduct were made about the respondent’s representatives and sought to invoke the court’s costs powers in relation to misconduct.
On the 14th January 2022 the appellant served a fresh bill, this was further amended on the 4th February 2022.
On the 16th January 2022 the appellant served a fresh notice of commencement.
On the 7th February 2022 the respondent wrote to the appellant inviting him to agree to consent order regularising the two notices of commencement and providing for the future conduct of the assessment. The respondent did not agree.
THE INITIAL HEARING BEFORE THE COSTS JUDGE
The hearing came before the costs judge on 11th February 2022. The appellant made a series of allegations of professional misconduct against the respondent’s representatives. The judge heard and dismissed both applications. He ordered the appellant to pay 80% of the respondent’s costs and assessed the costs at £1,440.
THE GROUNDS OF APPEAL
“Upon the grant of permission, the Appellant was ordered to file revised grounds of appeal drafted by counsel. He advanced three grounds of appeal to this effect:
Ground 1: The Judge failed to rationally or properly apply CPR 44.2(2)(a), given that the Appellant had successfully defended the Respondent’s application to strike out the Appellant’s detailed assessment proceedings (“the ‘successful party’ ground”);
Ground 2: The reasons given by the Judge for awarding the Respondent her costs of £1,440 were perverse given that her application was premature (“the ‘prematurity’ ground”); and
Ground 3: Further or alternatively, the Judge’s decision was plainly wrong (“the ‘plainly wrong’ ground”).”
The appellant was unsuccessful on all three grounds.
THE SUCCESSFUL PARTY GROUND
45. It is right to note that the Judge did not expressly refer to CPR 44.2(2)(a). However in my judgment, this is a situation to which the principle set out in Piglowska at 1372G-H [39] above applies. CPR 44.2(2)(a) is an absolutely fundamental rule in respect of costs. It is so well known that it is safe to assume that any judge dealing with costs issues will be aware of it. That is especially so here, given that the Judge is a highly experienced specialist costs judge. On that basis, I do not consider that the fact that the Judge did not refer in terms to CPR 44.2(2)(a) assists the Appellant.
46. Moreover, I am not persuaded that the Appellant was properly regarded as the successful party under CPR 44.2(2)(a) when the case is looked at in the round. As a matter of form, both applications had been dismissed: neither party had won or lost either of them. As a matter of substance, the fact that the Respondent’s application was dismissed does not mean that it was not properly brought. On the contrary, for the reasons explained in further detail under Ground 2 below, the Respondent was entirely justified in making the application. Moreover, it appears likely that it was the Respondent’s application which prompted the Appellant to serve his bill.
47. In any event, a perfectly permissible reading of the Judge’s reasons is to the effect that he did regard the Appellant as the successful party under 44.2(2)(a), but considered that there were a range of reasons, as explained further under [62]-[63] below, that justified him in departing from the general rule, under 44.2(2)(b). That was an unassailable approach.
THE PREMATURITY ARGUMENT
49. The Appellant contended that the Respondent’s 23 December 2021 application was premature because the deadline for the Appellant to file his bill of costs was not until 21 January 2022, such that the requirement for the Respondent to file Points of Dispute had not been triggered. On that basis, as at 23 December 2021, the Respondent was not at risk of the Appellant making an application for a default costs certificate under CPR 47.9, or of any such application succeeding. Further, he argued that if and when he applied for a default costs certificate, it would have been open to the Respondent to oppose such an application.
50. With respect, this submission flows from a misunderstanding of the relevant rules.
51. As noted at [26] above, CPR 47.6(1)(a) provides that detailed assessment proceedings are commenced by the receiving party serving on the paying party a notice of commencement in the relevant practice form. The Appellant had done that.
52. The Judge was right to find that he should have served a bill of costs with the notice of commencement under CPR 47.6(1)(b). However, notwithstanding that defect, CPR 47.9(2) (at least arguably) had the effect of requiring the Respondent to serve points of dispute within 21 days of service of the notice of commencement, or be at risk under CPR 47.9(3) of being denied the right to be heard further in the detailed assessment proceedings.
53. In those circumstances the Respondent was entirely justified in applying to strike out the Appellant’s defective detailed assessment proceedings. This was a proactive step, intended to protect the Respondent’s position. There is no basis for asserting that she should have waited to see if an application for a default costs certificate was made.
54. The suggestion that she could simply resist such an application again reflects a misapprehension of the rules: the granting of a default costs certificate is a purely administrative function, performed on a request without notice to the paying party (CPR 47.11). If such a certificate had been issued in this case, the Respondent would then have been put to the trouble of applying to set it aside.
55. She was entirely justified, as the Judge found, in making the 23 December 2021 application, to avoid this potentially more problematic situation occurring. The application was not premature.
56. The fact that the Appellant served a bill of after the 23 December 2021 application was made does not mean that the application was not justified in the first place. Moreover, the correspondence indicates that the Appellant did not agree to the Respondent’s suggestions to regularise the proceedings, and avoid the need for a hearing of the application.
57. For all these reasons the Judge did not err in failing to find that the Respondent’s application was premature.
THE “PLAINLY WRONG” GROUND
The Appellant’s core contention under this ground was that the Judge’s order was wrong because of the prematurity argument. I have rejected this for the reasons given under Ground 2.
59. In oral submissions reliance was placed on the fact that the Appellant was a litigant in person, with vulnerabilities due to health issues and who had been involved in contentious litigation with the Respondent involving the deprivation of his liberty.
60. Those factors were all present. However the Judge was well aware of them and indeed specifically referred to the fact that he was affording the Appellant some latitude in light of them. Moreover the documentation provided by the Appellant, perhaps because of the assistance he was receiving from his sister and brother-in-law, indicates a relatively extensive familiarity with the relevant legal provisions and case law, as the Judge recognised. I therefore accept the Respondent’s submission that he was a vulnerable litigant in person, with access to some support on the law. Accordingly, I find no error in the Judge’s approach to this issue.
61. Further, under CPR 44.4(4) in deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including the conduct of all the parties.
62. Here, the Judge was fully entitled to take an adverse view of the Appellant’s conduct. He had (i) refused to engage with the Respondent when the latter asked for a telephone call so that she could explain her position on 21 December 2021, before the application was made; (ii) refused to engage with the Respondent’s sensible proposals in her 21 December 2021 email; (iii) refused to engage with her 7 February 2022 letter, which made sensible proposals for the future conduct of the proceedings; (iv) continued to threaten to make applications for wasted costs and asserted that the Respondent’s position was an abuse of process, when it plainly was not; and (v) did all of these things despite failing to serve a bill of costs which meant that the entirety of the detailed costs proceedings were defective.
63. The Judge was also justified in describing the Appellant’s 31 January 2022 application as “misconceived”. It was an otiose application in that it sought by way of remedy the dismissal of the Respondent’s application, which could have been achieved simply by the Appellant simply opposing the application at the hearing. However it also made a series of allegations of misconduct against the Respondent’s representatives which did not appear sustainable.
64. These were all points taken into account by the Judge when coming to his decision. He explained his reasons in commendable detail. They could not be clearer. His decision was an entirely appropriate one that fell squarely within his broad discretion with respect to costs. It was not plainly wrong. On the contrary, I consider that it was right. Accordingly, there is no basis for an appeal court to intervene, applying the legal framework set out at [31]-[38] above.
THE COSTS OF THE APPEAL
Accordingly, for all these reasons, the Appellant’s appeal is dismissed. The Judge’s order stands.
66. The Appellant is therefore the unsuccessful party on the appeal. Under CPR 44.2(2)(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party. The Appellant sought to persuade me to make a different order, as permitted under CPR 44.2(b), namely no order for costs. He relied on the Respondent’s conduct in the failure to comply with the court’s order dated requiring a Respondent’s Notice.
67. In my judgment this is a relevant factor. Had the Respondent set out her case in a Respondent’s Notice upon the grant of permission there is some possibility that the appeal would have been resolved between the parties. However, this is not so serious a failing as to lead to an order that the Respondent recovers no costs. Rather, it can be reflected in a reduction of those costs, as a relevant factor under CPR 44.2(4)(a). The reduction should only be modest, given that I consider there is only a very small prospect that earlier provision of the Respondent’s Notice would have resolved matters. The reduction I make is 10%.
68. The Respondent’s schedule of costs sought the figure of £5,107.20. The Appellant sought to persuade me that the 6.5 hours of solicitor time and counsel’s fees (reflecting 22 hours work at London A Panel counsel rates) were disproportionate and excessive given the nature of the appeal. Those submissions are hard to sustain when the costs the Appellant himself claimed were substantially higher than the Respondent’s, at £9,506.60. I do not consider that the figures claimed by the Respondent were disproportionate and excessive in any event.
69. As the Respondent highlighted in the submissions in costs, it is necessary to consider proportionality when assessing costs, under CPR 44.3(5). One aspect of proportionality is whether the level of costs bears a reasonable relationship to the sums in issue in the proceedings: CPR 44.3(5)(a). This appeal was about an order in the sum of £1.400. Applying the proportionality concept in the course of his submissions the Respondent proposed a cap on costs of £5,000. I accept this proposition. Although the argument was advanced in the context of responding to the Appellant’s application for costs against the Respondent if he succeeded on the appeal, it applies to both parties.
70. Accordingly, I order that the Appellant pays the Respondent’s costs, summarily assessed in the sum of £4,596.48. This figure allows for the 10% reduction in the Respondent’s costs referred to at [67] above, and meets the need for proportionality described at [69].
71. For these reasons the appeal is dismissed. The Appellant is ordered to pay the Respondent the original figure of £1,440 ordered by the Judge; together with the Respondent’s costs in the sum of £4,596.48; within 21 days.