No.17 of 2001
Dickinson v Rushmer
21 December 2001
Mr Justice Rimer sitting with Assessors
After strenuously contested proceedings in the County Court for an account the claimant recovered some £18,000, and subsequently submitted a bill for £86,000 odd. This came before a Deputy Costs Judge for assessment, and the question of the indemnity principle was raised. The Deputy Costs Judge asked to see the client care letter, the bill of costs sent to the client and the calculations of payments made thereunder, but refused to show these documents to the paying party, holding that he was satisfied that there had been no breach of the indemnity principle after considering the documents, and then proceeded with the assessment, which resulted in some, but only modest, reductions in the figure claimed.
The defendant appealed, contending that he should have been permitted to see the documents shown to the Costs Judge.
In this case, in contrast with the case of South Coast Shipping (No.15 of 2001), the learned Judge felt able to decide the issue purely on careful analysis of the English authorities, without reference to the European legislation or authorities, though they were cited to him.
The gist of the Judge’s decision allowing the appeal is in paragraph 33 of his judgment, which reads:
"In my view, the procedure adopted by the costs judge was unfair. I can in any event see no good reason why the client care letter and the payment calculations could not have been disclosed to the defendant, since I have not been persuaded that they were privileged. But if anything in them might have been regarded as privileged, one course which might at least have been considered was the redaction from them of the privileged parts, a course which could or might also have been considered in relation to Wakefields’ bills. Ultimately, however, this was a simple situation in which the claimant chose to prove his version of a disputed issue of fact by reference to certain documents. In my view, the basic principle is that, if he wanted to do so, fairness required him also to disclose the documents to the defendant."
The learned Judge earlier held that in his opinion the bill to the client was, on the basis of the judgment of Sir G J Turner V-C in Chant v Brown  9 HARE 790, privileged from production.