The personal injury claimant sought to raise on taxation, matters not put to the trial judge when making the costs order. The personal injuries case had been allocated to the multi-track. The judge at trial had awarded costs on the standard basis, but the costs judge had assessed them as if the case had been in the fast track, relying on a note that the judge had said the claim was exaggerated.
Held: The costs judge was not entitled simply to rule that she was going to assess the costs of trial as if the case were on the fast track. To so rule rescinded in effect the Recorder’s order. In ruling as she did it could not be said she was simply ‘assessing costs on the standard basis taking into account that the case should have been allocated to the fast track’ which in my view is the permissible approach.
The note did not reflect what had been said by the trial judge. It is open to the costs judge to disallow costs relating to an issue on grounds including that the costs were unreasonably incurred. A trial judge may be in a good position to help a costs judge on such a point, but the fact that it was not raised with the trial judge should not in my view preclude a party raising the matter with the costs judge: ‘44.3 and 44.5 are intended to work in harmony and it is intended that the parties’ conduct (for example) may have to be considered under both. If what is sought is a special order as to costs which a costs judge should follow that obviously should be sought from the trial judge. If it is clear that a costs judge would be assisted in the assessment of costs by some indication from the trial judge about the way in which a trial has been conducted, a request for that indication should be sought. But none of this needs a rule as per Henderson v Henderson that a failure to raise a point before the trial judge will preclude the raising of a point before the costs judge.’
Lord Justice Waller, Lord Justice Hooper and Lord Justice Etherton, sitting with Senior Costs Judge Hurst
[2010] EWCA Civ 53
Bailii, Times
Civil Procedure Rules 26.5 26.6 44.3 44.5
England and Wales
Citing:
Cited – Lahey v Pirelli Tyres Ltd CA 14-Feb-2007
The claimant made a large claim for personal injury, but settled for a very small amount, and his costs. The costs judge rejected a submission that he could start by deciding that only 25% of the costs ultimately assessed as being payable.
Cited – Home Office v Lownds (Practice Note) CA 21-Mar-2002
The respondent had been ordered to pay costs of over pounds 16,000 in an action for clinical negligence where the final award was only pounds 4,000. The Secretary of State appealed claiming that the costs were disproportionate.
Held: In such . .
See Also – O’Beirne v Hudson CA 9-Feb-2010
The matter had been settled by a consent order providing for costs on a standard basis, however the costs judge had decided that the matter would if it had proceeded, have been allocated to the small claims track, and therefore limited his costs . .
Cited – Aaron v Shelton QBD 24-May-2004
. .
Cited – Gray v Going Places Leisure Travel Ltd CA 7-Feb-2005
Appeal against wasted costs order. . .
Cited – Northstar Systems Ltd and others v Fielding and others; Ultraframe (UK) Ltd and Others v Fielding and Others (No 2) CA 6-Dec-2006
The parties had disputed ownership of intellectual property rights. The court had found certain parties dishonest. The judge had found the successful defendants honest and adjusted the costs order in their favour. The claimants appealed.
Held: . .
Cited by:
Cited – O’Beirne v Hudson CA 9-Feb-2010
The matter had been settled by a consent order providing for costs on a standard basis, however the costs judge had decided that the matter would if it had proceeded, have been allocated to the small claims track, and therefore limited his costs . .
Lists of cited by and citing cases may be incomplete.
Costs
Updated: 11 November 2021; Ref: scu.396631