England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
ON APPEAL FROM THE SUPREME COURT COSTS OFFICE

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/07/2005

Mr Justice Warren Introduction

1. This is an appeal from the decision of Master O'Hare on 14 March 2005 refusing the applications of the first to fifth Claimants (whom I shall refer as C1, C2 etc and collectively Cs) for a total or partial disallowance of the Defendant's (whom, consistently, I shall refer to as D) bill of costs essentially on the grounds of delay.
2. The underlying claim was an application for the return of various chattels of which D, who was C1's trustee in bankruptcy, had taken possession. The application failed and an order for costs was made on 20 February 2001 in favour of D against all Cs by Mr Anthony Boswood QC sitting as Deputy Judge of the Chancery Division.
3. The appeal before me is made pursuant to CPR 52. The appeal is not a rehearing. In order to succeed, Cs must show that the Master was "wrong" in his decision, no serious procedural irregularity being alleged: see CPR 52.11(3)(a). Accordingly, it has to be shown that he was:

a. Wrong in law; or

b. Wrong in fact; or

c. Wrong in the exercise of his discretion – in other words, that he has acted outside the generous ambit within which reasonable disagreement is possible: Tanfern v Cameron McDonald (Practice Direction) [2000] 1 WLR 1311 at 1317-1321.

Background

4. I need to say something about Cs and their legal representation prior to the hearing before Mr Boswood.
5. C1 and C2 are husband and wife. C4 is their son. They all lived at a property, 9 Lord Chancellor Walk, Kingston, Surrey. It was from this property that D removed the chattels pursuant to a warrant issued from Kingston-upon-Thames County Court. C3 is C1's mother. The other Cs were alleged third party owners of the chattels.
6. Initially, Lawrence Stephens acted as solicitors for all Cs and made the application for return of the chattels in the Kingston-upon-Thames County Court. After that, in around September 1998, Goldsmiths took over all Lawrence Stephens' files and continued acting in the application but only for C1, C2, C3, C4 and 3 other claimants not including C5. Apparently, C5 had written to Lawrence Stephens, as long ago as 18 September 1998, instructing them to have her name withdrawn from the application. This was never done and, so far as D was concerned, she therefore remained a party along with the other Cs albeit that she may have taken no further active part in the proceedings.
7. The case was transferred to the High Court during the course of 1999. Sometime before the hearing in front of Mr Boswood, the chattels were sold by D. This rendered the application pointless. According to the evidence of Mr Stubbs on behalf of Cs, Goldsmiths pulled out about one week before the trial, leaving C1, C2, C3 and C4 without representation.
8. As to C2 and C4 no notice under CPR 42.2 was given, and no application under CPR 42.3 was made before the hearing, so that Goldsmiths remained on the record at least for C2 and C4. As to C3, a day or two before the hearing, C3 instructed another firm of solicitors, Judge & Priestly, to appear for her (but not for any other Cs). And as to C1, on 15 February 2001 (5 days before the hearing before Mr Boswood) he filed a notice of acting in person. So the position at the hearing before Mr Boswood was this: C1 acted in person; Goldsmiths were on the record for C2 and C4; Judge & Priestly acted for C3 (and nothing turns on which firm was on the record for her). C5's position is not entirely clear but if it is right that Goldsmiths never acted for her, it may be that Lawrence Stephens remained on the record for her. However, on 16 February 2001, Stephenson Harwood, acting for D, wrote to Goldsmiths stating that, although C1 was now representing himself, Goldsmiths remained on the record for the other 10 applicants (ie including C5). It is not necessary to resolve the position here: it is important only to note that C5 remained a party.
9. On 20 February 2001, the claims by all Cs were dismissed and the costs order against them was made.
10. Subsequently, C1 instructed Judge & Priestly and a notice of change dated 20 July 2001 was served on D.
11. On 2 March 2001, Stephenson Harwood wrote to Judge & Priestly, to C1 at 9 Lord Chancellor Walk and to Goldsmiths enclosing copies of the order dated 20 February 2001,
12. On 11 April 2001, Stephenson Harwood wrote to Judge & Priestly, to C1 at 9 Lord Chancellor Walk and to Goldsmiths. They enclosed another copy of the order dated 20 February 2001 together with notice of commencement of assessment of bill of costs ("the Notice of Commencement"). The Notice of Commencement was thus sent to those addresses and that was done within the time-limit specified in CPR 47.7.
13. The facts in 10 to 12 above appear from the copy correspondence exhibited to the witness statement of Judith Amanda Davidge, a solicitor with Stephenson Harwood. The address shown on the copy letters to C1 dated 2 March and 11 April both show his address as 9 Lord Chancellor Walk, his correct address. That witness statement was before the Master on 14 March 2005. Mr Ayres, who was present at that hearing, does not recollect it being expressly referred to and relied on, but acknowledges that it was one of the documents which the Master did have.
14. However, the Notice of Commencement had attached to it a statement of parties listing their addresses for service. The address for C1, C2 and C4 was shown incorrectly at 10, rather than 9, Lord Chancellor Walk. None of addresses were shown as that of Goldsmiths (in contrast with C3, whose address was shown as that of Judge & Priestly. I understand that an order (which I have not seen) may have been made by Mr Boswood declaring that Goldsmiths had ceased to act for any of the Cs which may account for the list of addresses attached to Notice of Commencement. The Master, indeed, states (in paragraph 3 of his Judgment) that Goldsmiths had come off the record by the date of the Notice of Commencement, but that no notice of that had been given although he does not say whether they had come off the record pursuant to an order or not.
15. In his skeleton argument on this appeal, Mr Ayres says that the unchallenged evidence before the Master was that C1, C2 and C4 were not served with the Notice of Commencement, on the footing that it was sent to the wrong address, No 10 rather than No 9, and had not in fact been received. That appears to be wrong in the light of Ms Davidge's witness statement. And Mr Stubbs' own evidence was only to the effect that the addresses were contained in the list and that by reason of that the list "appears to have been sent to 10 Lord Chancellor Walk".
16. In a case of change or solicitor, or where a party who has had a solicitor intends to act in person, he must file a notice or change and serve notice of the change on the other parties in accordance with CPR 42.2(2). By CPR 42.2(5), the former solicitor will be considered to remain the party's solicitor unless and until either (i) he serves notice of the change on the other parties or (ii) an order is made under CPR 42 and that order is served as required by CPR 42.3(3).
17. To understand the effect of that, it is necessary to note the provisions of CPR 42.3. This enables a solicitor who wishes to cease to act to make an application for an order declaring that has ceased to be the solicitor acting for a party. Where the court makes an order to that effect, CPR 42.3(3) requires a copy of the order to be served on every party and if served by a party, or the solicitor ceasing to act, a certificate of service must be filed.
18. No notice of change had been filed or served by C2, C4 or C5 by 11 April 2001. If there was an order declaring that Goldsmiths had ceased to be the solicitor for those Cs, there is nothing to suggest it was ever served on D so as to satisfy CPR 42.3. Mr Boswood's order enclosed with the letters I have mentioned did not mention Goldsmith ceasing to act. Accordingly, Goldsmiths would have remained to be considered as their solicitor under CPR 42.2(5) at that date.
19. It follows that all Cs were properly served since their addresses for service under CPR 6.5 were as follows: C1 at 9 Lord Chancellor Walk, C2 and C4 at Goldsmiths and C3 at Judge & Priestly. C5's address on the Notice of Commencement was correct and, although she says she never received it, she accepts that CPR 6.7 applies to treat her as properly served.
20. There might, nonetheless, be thought to be some confusion. Strictly, Lawrence Stephens might still have been regarded as C5's solicitors under CPR 42.2 so that it is they who should have been served. Further, although Ms Davidge exhibits the letters I have referred to, there is no copy letter to any of C2, C3, C4 or C5 which is surprising if letters were actually sent. On that footing, it is possible that C5 was not served at all.
21. The Master had some concern about service of the Notice of Commencement. On 2 December 2004, he made an order which, among other matters, required D to serve all Cs with the Notice of Commencement at their last known address no doubt intending to eliminate any question about proper service. D complied with this order. One ground of Cs' appeal is that it was not open to the Master to make such an order to cure the defects (if any) in service in April 2001. I should note here that it was only following service pursuant to that order that Cs (other than C3) say they first became aware of the Notice of Commencement. The Master's order also fixed 14 March 2005 for the hearing of the detailed assessment.
22. The Master, in his judgment following the March 2005 hearing, made no finding about whether there had, in fact, been good service in April 2001, preferring to rely on the re-service which had taken place pursuant to his order of 2 December 2004.
23. To complicate matters further, Goldsmiths merged with or was taken over by another firm, Fairmays and that firm itself subsequently merged with or was taken over by yet another firm, Merricks LLP, which later went into administration. The first of these mergers/takeovers occurred prior to 11 April 2001 when the Notice of Commencement was first served (if it was in fact properly served).
24. C3 served points of dispute pursuant to CPR 47.9 in late April or early May 2001 within the time-limit of 21 days specified in that rule. No further steps were taken by any party until July 2004 when D made a request for a hearing date under CPR 47.14. Stephenson Harwood sent notice of the hearing date to Goldsmiths, but that was returned undelivered. That led to the order of 2 December 2004 which I have already mentioned in relation to service and which contained, in addition, provision for Cs to serve Points of Dispute by 21 February 2005.
25. Cs did not serve Points of Defence by that date. Instead, on 11 March 2005 (one working day before the hearing fixed for 14 March) Cs made an application seeking orders:

a. That the assessment be struck out or stayed on the grounds of breach of C's right to a hearing within a reasonable time under Article 6(1) of the European Convention on Human Rights ("ECHR").

b. That the assessment be struck out pursuant to CPR 3.4 or the inherent jurisdiction on the grounds that D had continued the proceedings without any intention of bringing them to a conclusion and that they could not now have a fair hearing.

c. That the court should impose a sanction for delay pursuant to CPR 3.4 and 44.14. Alternatively

d. That the order of 2 December 2004 be varied so as to allow Cs to serve Points of Dispute.

The Grounds of Appeal

26. The Master rejected Cs' arguments on each of a, b and c. Cs now appeal, raising four grounds of which the first three are those which the Master rejected. The fourth is that the costs proceedings were not properly constituted in April 2001 against C1, C2 and C4 because they had not been served at the right address and that such failure could not be cured merely by "re-service" of the same Notice of Commencement pursuant to the order of 2 December 2005. I take them in turn.

Violation of Article 6 ECHR

27. Article 6.1 provides

"1. In the determination of his civil rights and obligations.….., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law….."

28. Cs' argument is simple. It is said correctly, that a person's Article 6 rights are infringed if he is deprived of a hearing for more than a reasonable time; in the present case, more than a reasonable time has passed since Mr Boswood's order during which costs could and should have been assessed; accordingly, to allow the assessment to continue would be a breach of Cs' Article 6 rights. Since the court is itself a public authority, it cannot sanction (by continuing to act) a breach of Cs' ECHR rights.
29. In addressing that argument, two preliminary points need to be noted:
30. First, the court itself does not become involved at all in a costs assessment until a hearing date is requested. The Notice of Commencement and points of dispute are matters between the parties and are not even filed at court prior to the request being made. The court is not responsible for, and does not even know of, any delay on the part of the litigants who, for all the court knows, have dealt with the quantum of costs without the need for assessment (as happens in many, if not most, cases).
31. Secondly, both the paying party and the receiving party have it in their own hands to move the assessment forward unilaterally. Thus

a. The receiving party can start matters moving forward by serving a notice of commencement under CPR 47.5. If he fails to do so, the paying party may apply for an order under CPR 47.8 requiring the receiving party to do so, the sanction being to deprive the receiving party of the whole or part of his costs.

b. The paying party may serve points of dispute under CPR 47.9. If he does not do so, the receiving party may apply for a default costs certificate under CPR 47.11.

c. Once points of dispute are served, the receiving party may request a detailed assessment hearing under CPT 47.14. This must be done within the period specified in CPR 47.7 (3 months of the expiry of period for the commencement of the detailed assessment procieedings) or by any direction of the court.

d. If the receiving party fails to make a request, the paying party can apply for an order requiring him to do so under CPR 47.14(3). The court can order that, if the receiving party does not make a request within the time specified by the court, the receiving party's costs should be disallowed in whole or in part.

32. I will deal here with a point which is taken by Cs in relation to what I have just said. Cs submit that, while that may be true where there is only one paying party – and here the drafting of CPR 47 appears to be directed at the case where there is only one party – it is not true where there is more than one paying party, only one of whom has been served. In particular, it is said that it is only the paying party who has actually been served (and so can service Points of Dispute) who can apply for an order under CPR 47.14(3) requiring the receiving party to file a request for a hearing: a paying party who has not been served with a Notice of Commencement cannot do so. But where one party has been served, it is said that CPR 47.8(1) does not apply since it cannot be said that the receiving party has failed to commence detailed assessment proceedings within the meaning of that sub-rule. Accordingly, it is not possible for a paying party who has not been served with a notice of commencement to apply for an order requiring the receiving party to commence detailed assessment proceedings. The result, it is said, that a paying party who has not been served with a notice of commencement cannot, in a case where another paying party has been served, force matters forward under either CPR 47.8 or 47.14.
33. I reject those submissions. CPR 47.8 and 47.14 (and also 47.6) must be read together and interpreted, in a case where there is more than one paying party, in a manner which assists, rather than obstructs, their operation. The purpose of CPR 47 is to give the receiving party the right to a detailed assessment, whilst providing the opportunity for the paying party to raise points of dispute. It seems to me that each of CPR 47.6, 47.8 and 47.14 should be read as applying to each paying party. Accordingly, in referring to commencement, those rules are in effect referring to commencement against a particular paying party. It is service on that party which commences the proceedings against that party under CPR 47.6; it is a failure to commence proceedings against a particular paying party which gives that party the opportunity to apply under CPR 47.8(1); and where there has been service on a particular paying party but not on others, that party is able to seek an order requiring the receiving party to request a hearing under CPR 47.14(3). Of course, only one detailed assessment should actually be allowed to take place and if only one paying party has been served, that party may at some stage in the process be able to have it dismissed or stayed unless the receiving party brings the other paying parties into the assessment procedure.
34. Returning, then, to Article 6, the ECHR ruled, in Robins v UK 1997) 26 EHRR 527, that that costs proceedings are a continuation of the substantive dispute, and Article 6 is engaged. Accordingly, the reasonable time contemplated by Article 6 commenced on or about 11 April 2001. Cs say that the delay in assessment proceedings specifically attributable to D is between around May 2001 and until July 2004, a period of 3 years and 2 months. The overall delay is between February 2001 (the date of Mr Boswood's order) and 14 March 2005 (when the full hearing before the Master took place), a period of 4 years and 1 month. Cs say that there is nothing complex or out of the ordinary about the detailed assessment proceedings, and in that they are correct as the Master said. It is said that the court, as a public authority, cannot sanction the continuance of what would be a breach of ECHR rights so that the costs proceedings should be stayed.
35. I reject that argument.
36. First, I do not think that there has been any violation of Cs' Article 6 rights at all. The short reason for this is that Cs have, all along, had it in their own hands, as explained already, to bring the matter to court or to bring about a situation where D's default in complying with the time-limits in CPR 47 is addressed. They have, all along, been entitled to ensure for themselves a hearing within a reasonable time.
37. In this context, the court has not itself been responsible for any delay and would not, until the request for a hearing, have known that any issue remained between the parties. CPR 47 provides a mechanism for either party to bring the matter to the attention of the court in order to obtain a hearing within a reasonable time. If a party fails to take advantage of that mechanism, I do not consider that it can be said that he has thereby been deprived of his Article 6 rights.
38. Secondly, even if it could be said that the court itself should have adopted procedures which ensure that the matter comes to court for a hearing within a reasonable time (even where the parties have themselves failed to take advantage of the mechanism available to them to achieve such a hearing), all that could be said is that there has been a violation of a parties' Article 6 rights – and that applies in respect of D as much as Cs. It does not follow from the fact that a delay has been a violation of such rights that a subsequent hearing would itself be a further breach of such rights. The court would not, by proceeding to a hearing, be sanctioning a continuance of a breach of those rights, but would be taking remedial action to correct the consequences of the breach.
39. Moreover, if the court were to refuse to hear the present case on the basis of a prior breach (ie unreasonable delay) of Article 6, the result would be to deprive D entirely of the benefit of his costs order. That would be a breach of D's own Article 6 rights. Mere delay of that sort cannot, I think, be used by Cs to deprive D of his rights. There is, at best from Cs' point of view, a tension between Cs' Article 6 rights and D's Article 6 rights. Tensions of this sort are common, for instance where there are competing rights under different Articles of the ECHR. In the present case, it is clear, in my judgment, that the case should be resolved in favour of D. The hearing should take place to allow D's rights to be determined, thus correcting any alleged breach of Article 6 as a result of delay, rather than D being altogether deprived of his rights because of a past violation (ie the delay) of Article 6.
40. I accept, of course, that where the delay is the responsibility of one party and has prejudiced the other party to the extent that a fair hearing is no longer possible, the result may be different and the proceedings should be brought to an end. But that is a matter for domestic law. In the present case, domestic law concerning abuse of process is well up to the task of protecting Cs from abuse if the facts warrant it. It is neither necessary nor desirable to invoke Article 6. If domestic law results in these proceedings being brought to an end, Article 6 is not relevant. If it does not do so, I consider that the answer in domestic law is also an answer to the claims based on Article 6.
41. It should be remembered that the CPR were drafted with the ECHR in the background and were clearly intended to be compliant with it. The overriding concern is to deal with cases justly; the issue is really whether there is anything unfair in letting the case proceed to a hearing: see Biguzzi v Rank Leisure plc [1999] 1 WLR 1926, a decision which has been repeatedly followed since the coming into force of the Human Rights Act 1998.
42. Accordingly, I reject Cs case on Article 6.

Abuse of process

43. Cs submit that, as a matter of domestic law, "D's delay in seeking to bring these proceedings to an end is abusive". It is said that excessive and unreasonable delay without explanation is tantamount to continuing litigation without any intention of bringing it to a conclusion (which would be an abuse justifying the proceedings being dismissed).
44. In order to succeed, Cs would have to show that there is a substantial risk that fair hearing is not possible: see Chadwick LJ in Taylor v Anderson [2003] RTR 21.
45. Cs submit, and submitted to the Master, that they could not have a fair hearing: they rely on the following:

a. In order properly to defend the assessment proceedings (and to be able properly to prepare Points of Dispute) Cs need their own papers for the purpose of assessing whether particular costs for a particular period were reasonably incurred.

b. For C1, C2 and C4, the files of Goldsmiths are essential for that process. They do not have those files, and it is far from clear that they will ever receive them; whereas, had the matter proceeded in 2001, it is as near as certain that the files would have been available. This is said to be a real and significant prejudice.

c. C5 is in a highly prejudicial position in any event, having requested her solicitors to effect discontinuance on 18 September 1998 but finding herself jointly and severally liable under Mr Boswood's order of 20 February 2001.

d. The delay specifically attributable to D, between around May 2001 and July 2004, is an abuse of process and warrants strike out.

46. As to a and b. I should say something about the availability of Goldsmiths' files. The position before the Master was that the files were not available and the news was not encouraging that they would be recoverable from the receiver of Merricks (the last successor firm to Goldsmiths). By the time of the hearing before me, the news was more encouraging; there seems to be a real prospect of the files being recovered. If the costs assessment is to proceed, I would be prepared to consider setting down a time-table which gave Cs a realistic opportunity of obtaining the files. But for the purposes of this appeal, I propose, for the time being, to proceed on the basis that the position before me is the same as it was before the Master.
47. The Master dealt with delay at various points in his judgment. His assessment was as follows (and I note my own comments):

a. He found [Judgment paragraph 12] that there was nothing contumelious, in the sense of meaning a decision or desire to flout the court and ignore its authority, saying "I do not think that there is anything which begins to look like that on the facts of this case". He was perfectly entitled to reach that conclusion on the evidence before him and, with respect, I wholly agree with it.

b. He found [Judgment paragraphs 15 and 16] that the case on costs was quite straightforward and noted that D admitted the delay and did not seek to explain it on the grounds of complexity or otherwise; and he found [Judgment paragraph 17] that D's delay for 3 years plus merited censure as there was no justification for it. As to that, Cs complain that D's reason for the delay is wholly unexplained and that, in those circumstances, his conduct should be regarded as abusive. I disagree. D gave no explanation because there is none; he simply failed to proceed with the speed which the rules require. But that does not mean that he was acting in deliberate disregard of the rules or with a view of never bringing the matter to a hearing to keep it hanging over Cs.

c. He took into account [Judgment paragraph 17 again] the fact that D3 had put in Points of Dispute to avoid having a default certificate entered against her and noted that she had said that further points would be forthcoming but never were. He said that the conduct of other Cs was to lie silent hoping that the assessment would go away. He also took into account the fact that Cs' application was made very late in the day. In my judgment, he was perfectly entitled to take each of these factors into account in exercising his discretion whether to dismiss or stay further proceedings in the assessment.

d. He found [Judgment paragraphs 19 and 20] that a fair assessment was still possible, commenting that delay normally prejudices the receiving party more that the paying party because the receiving party bears the burden of proof. He expressly found that the absence of papers of Cs' side was by no means fatal to a fair hearing.

48. Cs have not identified to my satisfaction any error of law by the Master: they seek, rather, to reargue the matters argued before him which really go to the exercise of his discretion whether or not to dismiss or stay the assessment on grounds of abuse. I do, nonetheless, now address Cs' complaints.
49. The major complaint was and is that Cs do not have access to their own papers. D responded to the Master (and repeats to me) that Cs had not really made adequate efforts to obtain the documents; and points out that, as soon as Goldsmiths had merged/been taken over, Cs should have taken steps to ensure that the papers which they would require were preserved. However, even ignoring those ripostes, the Master's views were that the receiving party's papers are the important ones on an assessment (which is obviously correct) and that it is the receiving party which is likely to lose out by delay. That is plainly correct, if I may say so. There is a close parallel here with the decision in Botham and Lamb v Imran Khan [2004] EWHC 2602 (QB) at paragraph 41 where Richards J came to a similar conclusion in relation to a longer delay. Cs seek to distinguish that case because it concerned delay in commencement whereas the present case is delay following the Notice of Commencement. I do not see that as a material distinction and in any case, if Cs are right in what they say about service, there has been no commencement as against some of the Cs.
50. Cs place all the blame for delay with D. But that is not the case. The CPR impose obligations on all parties to progress cases since this is needed in order to further the overriding objective (which it is the duty of all parties to assist in achieving: see CPR 1.3). And, as I have already mentioned when considering Article 6, there are specific rules designed to enable Cs to ensure that delays did not occur.
51. It appears to me that the Master carried out a meticulous examination of the relevant factors. He weighed everything in the balance and reached a fair and reasonable assessment. There is nothing which would justify interfering with his conclusions. Indeed, if the matter were for me on a rehearing, I would reach the same conclusions. I am comforted in that conclusion by the views of my assessors, one of whom, Master Campbell, is a hugely experienced Costs Judge and who, like Master O'Hare, considers that the absence of Goldsmiths' papers causes Cs no real prejudice.

CPR 44.14 and service

52. Like Cs and D in their skeleton arguments, I take the third and fourth grounds of appeal together.
53. CPR 44.14(1) (headed "Court's powers in relation to misconduct") provides

"The court may make an order under this rule where –

(a) a party or his legal representative, in connection with a summary or detailed assessment, fails to comply with a rule, practice direction or court order; or

(b) it appears to the court that the conduct of a party or his legal representative, before or during the proceedings which gave rise to the assessment proceedings, was unreasonable or improper." Where that rule applies, the court may disallow all or part of the costs which are being assessed.

54. The Master did not deal with the question of imposing a sanction under that Rule in his written judgment. He did, however, add a rider to it dismissing the application for such a sanction. The only sanction he applied was the disallowance of interest between 21 May 2001 and 14 December 2004, his power to do so being contained in CPR 47.14(5). That sub-rule provides for the disallowance of interest where the receiving party has failed to request a detailed assessment hearing within the timelimits referred to in CPR 47.14(2). But any other sanction for failure to request a hearing is expressly prohibited other than in accordance with CPR 44.14.
55. Paragraph (b) of CPR 44.14(1) applies only to conduct before or during the proceedings which gave rise to the assessment proceedings, not to the assessment proceedings themselves. Conduct during the assessment proceedings themselves falls within paragraph (a). However, conduct during the course of the assessment proceedings which is "unreasonable or improper" within the meaning of those words in paragraph (b) would be likely to constitute a breach of paragraph (a). The Master, in dismissing the application, cannot have considered (although he did not say so expressly) that D's conduct was unreasonable or improper, otherwise he would probably have imposed some sanction on the basis that the case fell within paragraph (a). The words "unreasonable or improper" in paragraph (b) should, no doubt, be given the same meanings as they have in the "wasted costs" jurisdiction, as to which see the well-known passage in Ridehalgh v Horsefield [1994] Ch 205 from the judgment of Sir Thomas Bingham MR at p 232. There is nothing which would justify categorising D's conduct as "unreasonable or improper". Even if the Master is not to be taken as reaching that conclusion, I myself would do so.
56. The question of the extent of paragraph (a) then arises. Read literally, any breach of a rule, practice direction or order of the court gives the court jurisdiction to impose a sanction under CPR 44.14(2).
57. However, on behalf of D, it is submitted that, in order to engage the Court's power under this "draconian rule" (as Mr Hutton, for D describes it), any failure to comply with a rule, practice direction or court order must be very serious, that, he says, follows from the heading including the word "misconduct". I would add that paragraph (a) also needs to be construed in the context of CPR 44.14(1) as a whole, where paragraph (b) clearly is dealing with what can properly be described as "misconduct" on almost any view. The mere failure, Mr Hutton says, to commence assessment proceedings within 3 months ought not, as a matter of course, to be considered to amount to misconduct; in relation to that, he points to CPR 47.8(3) which provides a sanction (disallowance of interest, as under CPR 47.14) for late commencement but provides that no other sanction shall be imposed save in accordance with CPR 44.14. Similarly, it could be said that the mere failure to request a hearing date ought not, as a matter of course, to be considered to amount to misconduct; in relation to that, one can point to CPR 47.14(5) which provides a sanction (again, disallowance of interest, as under CPR 47.14) for a late request but again provides that no other sanction shall be imposed save in accordance with CPR 44.14.
58. I do not gain any assistance from the description of the power as "draconian". I accept, of course, that the power can be exercised in a draconian way: for instance, in a case of very serious misconduct, costs could be wholly disallowed. But the power must be used proportionately, so that, if it is available at all, it can be used in a draconian way only where the facts justify it.
59. Nor do I derive much assistance from the use of the word "misconduct". First of all, it appears only in the heading, not in the body, of the rule. Secondly, on one view, any breach of a rule, practice direction or court order (especially the last of those) can be described as misconduct.
60. However, reading CPR 44.14 together with CPR 47.8 and 47.14, I agree that CPR 44.14(1)(a) must be intended to cover the case of a breach of rules, practice direction or court order which go beyond the mere non-compliance with a time-limit under CPR 47 (perhaps including even one laid down in a court order save where it is in the form of an "unless" order). But I am reluctant to decide, and do not do so, that this is because there is no jurisdiction to apply such a sanction other than in serious cases. Rather, I consider that the issue is one of the proper exercise of the discretion and that it would only be in the most exceptional case (which it is not easy to envisage) that mere delay could result in an exercise of the power; I would not want, however, wholly to rule out that possibility.
61. I shall return to this after considering the question of service to which I now turn. The Master was clearly troubled by this which is why, by his order on 2 December 2004, he made an order for re-service on Cs at their last known addresses. Quite clearly, if that was permissible, all Cs were properly served either as a result of the original service in April 2001 or as a result of the fresh service.
62. Was it permissible to order re-service? Cs say that it was not.
63. First, it is said that assessment proceedings are akin to ordinary proceedings and that a notice of commencement is akin to a Claim Form. It is therefore inappropriate to allow re-service some 3½ years after its effective date. Secondly, it is said that to allow re-service is contrary to authority, reliance being placed on Mainwaring v Goldtech Investments (No 2) 4 All ER 16 (Robert Walker J) and [1999] 1 All ER 456 (Court of Appeal).
64. As to the first of those, I disagree. The analogy with a Claim Form is unhelpful and, ultimately, misleading; and no rule or authority is cited in support of the proposition. There are rules which deal specifically with the Claim Form (see various sub-rules of CPR 7, including 7.5 and 7.6) and there is a body of case law on the subject of service of a Claim Form. The form has a unique place in proceedings; it is what starts the whole proceedings and initiates the claim. It is an important document which has significance beyond that of any document requiring to be served within the proceedings including the costs assessment (which assessment, as Cs point out, is regarded even by the ECHR part of the main proceedings: see again Robins v UK 1997) 26 EHRR 527).
65. As to reliance on Mainwaring, Cs seek to derive the following:

a. It was not open to the Master (in the exercise of his discretion) to allow a rerun of the assessment some years later, where only one of two paying parties has been served with the bill and a certificate has been issued.

b. Significant delay since the making of the costs order and in the costs proceedings can result in it being in the public interest to bring the matter to an end.

c. Delays of less than 2 years can generally be dealt with by disallowing interest; delays which are longer than 2 years will in most cases be wholly inexcusable and deserving of more drastic action than mere disallowance of interest.

d. It is imperative for the receiving party to serve all paying parties with the bill.

e. RSC O 62 r 28(4) entitled a taxing officer to extinguish a party's liability for costs in whole because of a serious default by the receiving party.

66. Notwithstanding the different wording of the RSC from that of the CPR, and notwithstanding that the CPR is an entirely new code (in relation to which previous case law under the RSC, if it is to be looked at all, must be treated very carefully), Cs submit that the present case is not distinct from Mainwaring in principle. It is said that the following conclusions flow:

a. What the Master did by his order of 2 December 2004 was to order a re-run of the assessment. This was not a course open to him in the exercise of his discretion.

b. Delay of over 2 years merits more than disallowance of interest.

c. The public interest would be best served by bringing the present assessment to an end now.

d. Since at least one paying party (C1) was properly served, CPR 47.8 is in applicable and, accordingly, the only sanction available against D for noncompliance is an order under CPR 44.14. The Master was wrong to refuse to exercise his discretion.

67. I take those objections in turn.
68. As to re-running an assessment, it is important to note that Mainwaring was a case where there had actually been a full detailed assessment carried out as against one paying party, many hours of the Chief Taxing Master's time had been spent. All that was really decided was that, on the facts of the case and in the interpretation of RSC O 62 r 30(5) (the wording of the RSC being materially different form that of the CPR) it was not a reasonable exercise of discretion to re-run a taxation which had already taken place where there was more than a 6 year delay in serving the other paying party. There is nothing, in my judgment, in this argument.
69. What led Robert Walker J to make the remarks which he did about it being in the public interest to bring the taxation to an end was the many hours already spent. There is nothing equivalent in the present case. I am unable to discern any reason why the public interest requires the present detailed assessment to be brought to a halt.
70. Robert Walker J's comments on what delays merit what sanction must be read with some circumspection. They were made in the context of a case where there had been an actual taxation already and in the context of materially different rules where the paying party had no express power (as he has under the CPR) to move matters along himself. The current principle of the overriding objective is to achieve justice and I have a great measure of doubt that he would, in the context of the CPR, have expressed himself in anything like the language which he did. In any event, he did not purport to lay down any rule of law.
71. It is true that, if D did not in fact serve his notice of commencement on all Cs within the time-limit under CPR 47.7, he was in breach of the rules. However, the consequence is not automatically that costs must be disallowed either in whole or in part. The primary sanction is disallowance of interest and, indeed, any other sanction is prohibited save by the application of CPR 44.14. For reasons already given, I do not consider that CPR 47.8 was unavailable to those Cs (if any) who were not served in April 2001.
72. The Master, by his order of 2 December 2004, took steps to cure the doubt which he had about service in April 2001. At the full hearing on 8 March 2005, he refused to impose a sanction under CPR 44.14. It is not clear whether he did so because he considered he had no jurisdiction or because he refused, in his discretion, to exercise that jurisdiction. In the latter case, I see no reason to interfere with his discretion. In the former case (assuming that I am correct in holding that there is in fact jurisdiction) it is open to me to exercise the discretion afresh. In my judgment, no sanction should be imposed under CPR 44.14 taking into account all the factors which have been identified in this judgment (including those referred to by the Master in his judgment). The Master acted sensibly and well within his discretion in ordering re-service in order to allow the detailed assessment to continue.

Conclusion

73. Cs' appeal is dismissed.
74. I would like to express my thanks to the assistance of my assessors whose views have, as usual, been invaluable. The decision, however, is mine and the responsibility for it lies with me alone.