In QZX v Newcastle United (29/9/22, unreported),
Deputy Costs Judge Friston reduced a claimant’s costs of assessment to reflect conduct under CPR 47.20. This decision shows that transparency in the assessment process is really important and that even when behaviour does not amount to misconduct, it is still possible that the court will discount assessment costs. In QZX the costs of assessment claimed by the claimant’s solicitors Bolt Burdon Kemp, were reduced by 25%.
The bill of costs had been agreed by consent and all that remained was to deal with the claimant’s costs of assessment. The defendant raised three issues: the level of reduction to the bill, the lack of clarity regarding the costs of an expert whose evidence was not relied on, and an “omission” in terms of the description of funding arrangements.
The deputy costs judge held that the saving on this particular matter was in the “ballpark of reductions that this court will commonly see, but it is still a factor to be taken into account.” He added that in isolation it would not have been particularly weighty, but it was taken into account “in the mix of things.”
Costs were claimed for dealing with an expert who had provided a report which was not relied on, nor mentioned in the life of the case. The claimant actually conceded the costs of the report, but concerns remained that some items had remained claimed, and even defended, during negotiations. The court held that “the defendant is right to complain about this.” Deputy Costs Judge Friston noted that it would have been helpful from “the claimant’s perspective” to have fully set out the history of the claim and why those costs were claimed, concluding “I think the narrative is deficient in this regard but taken by itself, I do not think it is a particularly weighty factor.”
“More troubling” was that the description of funding was inaccurate, with the defendant arguing that the bill was miscertified. The bill of costs, and the points of reply, both failed to record that the CFA had been subject to a variation, something regarded as a “relatively serious omission.” The judge noted this was “a relatively serious matter in the sense that it was clearly relevant to the retainer, as otherwise the variation or clarification would not have been made. It is clearly something that a paying party would want to know about.”
In deciding whether to depart from the usual rule that the receiving party get their detailed assessment costs, Deputy Costs Judge Friston concluded: “I think that that is something that I can take into account for the simple reason that it has caused costs to be incurred; it has caused the paying party to ask questions, to incur costs, possibly to hold off making offers – I do not know – but certainly, it has not helped in the resolution of this dispute, and I think that that is something that I can take into account for the purposes of CPR 47.20.”
The power of the court to reduce a claimant’s detailed assessment costs has been in the news recently with the helpful guidance from Mrs Justice Stacey in TRX. It is important that bills of costs are transparent, and we will always challenge bills that are opaque. In those circumstances then the court should be invited to apply a discount.
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