Can a Judge, who has concluded that he is unable to assess costs summarily at the end of a hearing, because he has insufficient information, make directions for another Judge to carry out a summary assessment of those costs?

The answer, broadly, is no, and that is why the Court of Appeal allowed the appeal in The King (on the application of Jerry Isah) -v- The Secretary of State for the Home Department [2023] CWCA Civ [2023] EWCA Civ 268 [2023] EWCA Civ 268.  The Appellant had appealed various decisions in a detailed assessment of his costs, carried out in the Senior Courts Costs Office, by which his costs were reduced from £88,000 to just over £25,000.  After the appeal to Linden J, the costs remained as they had been assessed.  Linden J made orders for the payment of costs by both parties, but the costs schedules lodged for summary assessment did not reflect the orders he had made.  Linden J did not direct a further hearing before himself.  Instead, he made directions for those costs to be summarily assessed by a Master of the Senior Courts Costs Office.

The Appellant, having declined to ask Linden J to order detailed assessment, appealed and contended that there should be detailed assessments of the costs which Linden J had ordered.  The Court of Appeal concluded that para 9.7 of the Practice Direction to CPR Part 47 required a hearing before the same Judge for summary assessment by him.  It rejected the Respondent’s argument that para 9.7 conferred a general case management discretion or that the overriding objective or the court’s case management powers could be used to make the directions which Linden J had made.

The Court of Appeal commented that the Rules, as they are currently drafted, left the court in an inflexible position because only the Judge who heard the matter could carry out a summary assessment. They thought it would be appropriate for the issue to be looked at by the Rules Committee.

Having concluded that Linden J’s directions could not stand, the Court of Appeal had to decide whether to order detailed assessments (which would be dealt with by the SCCO) or whether to remit the matter back to Linden J.  They remitted the matter back to Linden J for summary assessment, given that the parties had agreed before the Judge that summary assessment was appropriate.

There was a sting in the tail for the Appellant.  Having won the appeal, perhaps the Appellant could legitimately have expected to be awarded the costs of the appeal.  Instead, the Court of Appeal accepted the Respondent’s argument that there should be no order for those costs, commenting that it was not clear that the outcome of the appeal would be of any significant benefit to the Appellant and that, “enough costs have been expended arguing about costs already”.

If this case ultimately achieves an amendment to the Rules to remove the current inflexible position in which the court has been placed, then maybe it will have been a worthwhile exercise.  Inflexibility is usually unhelpful and detrimental to the litigation process.  But perhaps this case is more about the judgment which should be exercised when deciding when to mount an appeal.  Is the Appellant really the winner after all of this?

Paul Joseph appeared for the Home Secretary in Isah