Jake Rowley successfully resists the appeal of a costs order

Published: 15/04/2015 | News

Jake was recently instructed on an appeal brought by the Claimant in a road traffic accident against an order made by a Deputy District Judge that there be “no order as to costs” following a disposal hearing.

The claim arose out of a RTA for which liability was admitted. The matter proceeded initially under the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents but subsequently fell out of the Portal. Judgment was entered for the Claimant for an amount to be decided and the matter progressed to a disposal hearing.

In preparation for the disposal hearing before a Deputy District Judge, the Claimant had filed a costs schedule in the hope of beating their own Part 36 offer and obtaining the enhanced costs and additional benefits allowable under CPR r. 36.14(3). Ultimately, the Claimant did beat their offer.

The costs schedule filed by the Claimant had not been signed by a representative of the Claimant’s solicitors’ firm and accordingly, the Deputy District Judge refused to order any additional costs sought and, in the event, made “no order as to costs”.

The Claimant appealed.

The appeal was heard before HHJ Seys Llewellyn QC, the Senior Civil Judge for Wales.

In argument, the Judge queried whether it would have been more proportionate for the Deputy District Judge to have made an order that the Claimant was entitled to the additional costs and benefits under CPR r. 36.14 and that there be a detailed assessment in default of agreement, with the Claimant to pay the costs of that assessment given their failure to file a signed schedule. Jake was able to demonstrate with the assistance of the transcript that such an option had exercised the Deputy District Judge’s mind at the time of the disposal hearing, but in the event he had made “no order as to costs” and had therefore impliedly rejected that approach, having balanced the procedural failing to sign the costs schedule with other relevant matters.

Jake pointed to the inherent residual discretion in CPR r. 36.14(3), which was clear from the rule’s wording, which permitted the Court to decline to award the Claimant the additional costs and enhancements sought where it considered it “unjust to do so”. It was submitted, with the assistance of the transcript, that although the Deputy District Judge had not used those precise words, it was clear that that was his decision given the failure to sign the costs schedule.

Jake was able to demonstrate that pursuant to PD44, paragraphs 9.5(1), 9.5(3), and 9.6 the Claimant’s solicitors were mandatorily required to sign the schedule and that the Deputy District Judge was obliged, in considering what costs order to make, to take that failure into account. The Judge agreed with Jake’s submission that experienced solicitors such as those acting for the Claimant must have known of that requirement.

Although indicating his “temptation” to interfere with the Deputy District Judge’s order, HHJ Seys Llewellyn QC recognised, as set out in Jake’s Skeleton Argument, that:

  • The general approach of appeal courts was rightly one of reluctance to interfere with costs orders made unless the substantive judgment is varied;
  • Orders for costs are very rarely disturbed by appeal courts (Voice & Script International Ltd v Alghafar [2003] EWCA Civ 736 per Judge LJ at [3]);
  • Costs are within the discretion of the trial Judge and before an appellate court will interfere it must be shown that the Judge has either (i) erred in principle in his approach; or (ii) has left out of account, or taken into account, some feature that he should, or should not have considered; or (iii) that his decision is wholly wrong because he has not balanced the various factors in the scale (Adamson v Halifax Plc [2002] EWCA Civ 1134, per Sir Murray Stuart-Smith at [16]); and
  • The trial Judge’s discretion is a wide one and his decision should only be disturbed if he has exceeded the generous ambit within which reasonable disagreement is possible (Islam v Ali [2003] EWCA Civ 612 per Auld LJ at [19 – 20]).

The Appellant had relied on The Governor & Company of the Bank of Ireland v Philip Pank Partnership [2014] EWHC 284 (TCC) in support of the appeal but the Judge agreed with Jake’s submission that the case was distinguishable. Philip Pank was a case that related to the failure of a solicitor to insert the correct Statement of Truth onto a costs budget as opposed to failing to sign the document. The Judge agreed that it was distinguishable as it related to costs budgets, which served a different purpose to a costs schedule, which was in large part used to assure the Court that the Indemnity Principle was satisfied; and that paragraph 15 of the judgment showed that in Philip Pank the failure was one of form rather than substance; Jake had submitted that in this case the failure was one of substance rather than form which was wholly different.

Ultimately, the Judge agreed with Jake’s submission that the Deputy District Judge had not exceeded his wide ambit of discretion and therefore dismissed the appeal. Accordingly the Respondent avoided an additional costs bill likely to have been in the region of £9,000.

The Judge called Jake’s submissions on the appeal, “balanced and concise” and thanked him for his “admirable” skeleton argument and oral presentation of the appeal.

The approach of the Deputy District Judge, which HHJ Seys Llewellyn QC accepted was within his wide ambit of discretion, acts as an important reminder to solicitors to ensure that costs schedules are properly prepared and specifically, that they are signed by a representative of the firm.

Author: Jake Rowley Farrars (chambers@farrarsbuilding.co.uk)