England and Wales High Court (Senior Courts Costs Office) Decisions

IN HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
SENIOR COURTS COSTS OFFICE

		Claim No.HQ11X03255
		12 January 2016

Deputy Master Campbell

1. This judgment addresses a point of principle which arises at the outset of the detailed assessment of the costs of the claimant (acting through her litigation friend ("the claimant")) which are payable by the defendant pursuant to an order dated 13 December 2013. It also deals with two further matters, the level of success fees and an After-the-Event ("ATE") insurance premium if the first issue is decided in the claimant's favour.
2. The first issue concerns the defendant's liability in principle for the success fees and ATE insurance premium which the claimant contends is recoverable under the terms of a Conditional Fee Agreement ("CFA") she made with her solicitors Irwin Mitchell on 27 March 2013. There is a further claim for a success fee charged in a CFA entered into by the claimant's counsel the previous day. It is the defendant's case, advanced by Mr Hutton QC, that the claims are unreasonable because prior to the CFAs, the claimant was in receipt of legal aid which covered proceedings she had brought against the defendant for damages following an unsuccessful haemorrhiodectomy on 8 September 2008. The claimant disagrees ; her case put forward by Mr Robert Marven is that she had made a reasonable choice to change her method of funding from legal aid to the CFA and that, accordingly, in principle, the sum of £32,352.72 for the success fee for Irwin Mitchell and £4,386 for counsel plus £18,881.78 for the ATE premium are recoverable from the defendant in her bill.
3. The hearing lasted the best part of two days during the course of which the claimant's solicitor at Irwin Mitchell, Juanita Cumberland, gave evidence and was cross-examined by Mr Hutton in respect of witness statements she had made on 13 November 2014 and on 18 September 2015 respectively. In addition, a bundle of relevant documents had helpfully been agreed by the parties and I also had the benefit of skeleton arguments prepared by counsel together with a list of authorities. At the conclusion of the hearing I reserved judgment.

BACKGROUND

4. The claimant, who was born on 4 September 1963, had been admitted to University Hospital Lewisham on 8 September 2008 for day surgery in the form of a stapled haemorrhoidectomy. After the surgery, the claimant was noted to have been in considerable pain, followed by sickness, abdominal pain and constipation. She then developed sepsis. A laparotomy, which was later performed but not until 16 September 2008, revealed a disruption to the staple line over approximately 1.5 cm. Thereafter the claimant had developed adult respiratory distress syndrome and had remained seriously unwell in the intensive care unit where she later suffered a series of strokes and sustained irreversible brain damage.
5. In due course, the claimant through her litigation friend, had consulted solicitors. An application for legal aid was made at the outset of the claim and a certificate had been granted on 4 March 2010 which was converted into a full representation order in June 2011.
6. The claim was complex, the claimant having been left with devastating brain damage (blind, paralysed in both legs with no grip in her hands, living in a BUPA care home with two children aged 10 and 12 no longer being cared for by her) following what had been expected to be a routine day procedure. In her letter of claim sent on 7 September 2011, the claimant alleged that the surgery performed on 8 September 2008 had been negligent and had caused a perforation as well as there having been a delay in recognising and treating infection thereafter. In addition it was contended that there had been a failure to perform a laparotomy and/or/and examination under anaesthetic earlier than 16 September 2008.
7. The defendant had replied 19 January 2011 in a letter which had contained a partial admission of breach of duty, in that the breach had led the claimant to being admitted to the Intensive Care Unit (see paragraph 19 below). However, causation remained in issue in relation to the resulting brain damage (see the skeleton arguments of Mr Marven and Mr Hutton at paragraphs 2 and 6 respectively).
8. The chronology continued as follows:-

• 31 January 2013 : Particulars of Claim, schedule of loss and a medical report served.

• 27 February 2013 : Irwin Mitchell apply to discharge the legal aid certificate.

• 18 March 2013 : CPR Part 36 offer by the defendant in the sum of £285,000 inclusive of CRU.

• 26 March 2013 : CFA made between counsel and Irwin Mitchell with a 67% success fee

• 27 March 2013 : claimant enters into a CFA with a success fee of 80% if the claim settled more than three months before the trial/trial window and thereafter 100%.

• 28 March 2013 : Notification given of an ATE policy by Irwin Mitchell to Clyde & Co solicitors for the defendant and of the change in legal funding.

• 12 July 2013 : CPR Part 36 offer by the claimant in the sum of £46,7524.

• 123 July 2013 : Clyde & Co request from Irwin Mitchell a breakdown of the damages and details of costs to date.

• 27 August 2013 : Irwin Mitchell inform Clyde & Co that "our estimate of general damages is £175,000".

• 13 September 2013 : Part 36 offer by the defendant of £325,000 plus CRU of £26,409.

• 26 September 2013 : defendant's offer accepted.

• 13 December 2013 : settlement approved by the court.

LAW : THE RULES AND AUTHORITIES

9. The law with which this judgment is concerned is the following (taken in part with thanks from Mr Hutton's skeleton argument).
10. It is agreed that, for this purpose, the pre-1^st April 2013 Civil Procedure Rules ("CPR") apply-

CPR 44.4 (as then in force) provides as follows:-

" ..(2) where the amount of costs is to be assessed on the standard basis the court will (a) only allow costs which are proportionate to the matters in issue ; and (b) resolve any doubt which it may have as to whether costs were reasonably incurred or reasonable and proportionate in amount in favour of the paying party..."

CPR 44.5:- "(1) the court is to have regard to all the circumstances in deciding whether costs are – (a) if it is assessing on the standard basis -(i) proportionately and reasonably incurred ; (ii) were proportionate and reasonable in amount...."

11. Paragraph 11.7 of the Costs Practice Direction ("CPD") in force until 31 March 2013 provides that :-

"When the court is considering the factors to be taken into account in assessing an additional liability, it will have regard to the facts and circumstances as they reasonably appeared to the solicitor or counsel when the funding arrangement was entered into"

12. Paragraph 8 :-

"In deciding whether a percentage increase is reasonable, relevant factors to be taken into account include:

(a ) the risk that the circumstances in which the costs, fees or expenses would be payable might or might not occur

(b) the legal representative's liability for any disbursement

(c) what other methods of financing the costs were available to the receiving party".

13. On 1 April 2013, amendments were made to the CPR and to the entitlement of parties to CFAs to recover from paying parties, success fees and ATE premiums. S.44 and s.46 Legal Aid and Sentencing of Offenders Act 2012 ("LASPO") made these additional liabilities irrecoverable for CFAs and ATE Insurance policies made on or after 1 April 2013 in most types of case including clinical negligence.
14. In Sarwar v Alam (2002) 1 WLR 125 the court considered whether it was reasonable for the receiving party to enter into a CFA and/or ATE policy thereby incurring a success fee and ATE premium. In that case, the claimant had been a passenger driven by the defendant driver and Before The Event ("BTE") insurance had been available to make a claim on the driver's own insurance. The Court of Appeal held that it was reasonable not to use the driver's BTE policy and accordingly, the success fee and ATE premium were, in principle, recoverable. It also said this :-

"The governing rule is CPR rule 44.4(1) which imposes a duty on the court to have regard to all the circumstances in deciding whether any item costs was proportionately reasonably incurred (paragraph 12) ….

….The central question in this appeal is whether it was reasonable in all the circumstances for Mr Sarwar, acting on his solicitor's advice, to incur the cost of an ATE premium without taking further enquiries into the possible existence of BTE cover (paragraph 13)…

….The overriding principle is that the claimant assisted by his/her solicitor, should act in a manner that is reasonable (paragraph 50)…

….We deprecate any attempt to equate the question of reasonableness that a cost judge has to decide with the question whether the claimant's solicitor has been in breach of duty to his/her client. If a solicitor gives advice which proves unsound, it will not necessarily follow that the advice was negligent. The advice will necessarily be based on information provided by the client. If the information is inadequate or inaccurate, the advice may prove to be unsound without any question of fault on the part of the solicitor (paragraph 51)…

….The philosophy contained in CPR 1.1(2)(c) and the express provisions of CPR 44.5, require the court to ensure that no costs are incurred which are not reasonable and proportionate. While we would not interpret the sensible non-exhaustive guidance given in paragraphs 11.7 to 11.10 of the costs practice direction as if they were words of a statute, they point the reader towards an enquiry into the availability of alternative funding arrangements which might be less expensive…(paragraph 56)".

15. Also relevant to decision I have to decide is the decision of the Court of Appeal in Simmons v Castle (2012) 6 Costs LR 1150 at paragraph 20 : -

"Accordingly, we take the opportunity to declare that, with effect from 1 April 2013, the proper level of general damages in all civil claims for (i) pain and suffering, (ii) loss of amenity (iii) physical inconvenience and discomfort (iv) social discredit or (v) mental distress will be 10% higher than previously, unless the claimant falls within section 44 (6) of LASPO. It therefore follows that, if the action now under appeal had been the subject of a judgment after 1 April 2013, then (unless the claimant had entered into a CFA before that date), the proper award of general damages would be 10% higher than that agreed in this case, namely £22,000 rather than £20,000 ."

16. I shall refer subsequently in this judgment to this decision as being "the Simmons v Castle point".

THE WITNESS STATEMENTS

17. Juanita Cumberland's two witness statements explain the reasons for the advice given by Irwin Mitchell to the claimant about changing from legal aid to a CFA. In summary, the firm had concluded that the claim was "vulnerable to the adverse effects of LASPO" and that there was concern about whether there was likely to be sufficient financial cover to fund the claimant's case until conclusion under legal aid. Having sought the client's instructions and explained the reasons for her advice, Ms Cumberland had applied on 27 February 2013 to discharge the Legal Aid Certificate, which duly happened on 1 March 2013.
18. Ms Cumberland explained that in her experience, there is never any guarantee that the Legal Aid Agency ("LAA") will provide the necessary financial support and the criteria applied by the Agency is likely to result in lower prospects of success than those that her firm would calculate. In these circumstances, there was a risk that the case would not have been funded to trial had liability remained in dispute. Moreover, legal aid funding would not protect a client's damages from the affects of failing to beat a CPR Part 36 offer in which case the client in all likelihood would be ordered to pay both the opponent's costs after the date by which the Part 36 offer should have been accepted, with payment to be deducted from any damages awarded. By contrast, the CFA on offer by Irwin Mitchell was "lite" which meant that the agreement was guaranteed as being "no cost to you" which would fully fund all disbursements up to and including the conclusion of the case. In addition, the ATE insurance protected the claimant against all of the risks in terms of exposure to costs due to Part 36 offers and adverse interlocutory costs and that any shortfall in costs recovered would not be visited upon the claimant herself but would be written off.

THE SUBMISSIONS FOR THE DEFENDANT

19. The crux of the defendant's case is whether it was reasonable for the claimant to enter into the CFA and thereby incur liability for the ATE premium and success fee in circumstances where legal aid was available to fund the claim on an ongoing basis. In Mr Hutton's submission, to visit upon the defendant additional liabilities of approximately £55,000 under the CFA when no equivalent sums would have been claimed had legal aid continued, is unreasonable and accordingly, those claims should be disallowed.
20. Mr Hutton's first point on unreasonableness is that the letter of response dated 19 January 2012 contained a clear admission of breach of duty, it having been admitted that there had been a delay in recognising the developing sepsis, that this should have been detected by 10 September 2008, in which case the claimant would have been returned to theatre for surgery by 13 September 2008. Had that happened, the claimant's stay in hospital would have been shorter (likely date of discharge on or around 23 September 2008) and, with a recovery, her damages would have been in the region of £25,000. It follows that the value of that admission had been worth a similar sum.
21. That said, Mr Hutton acknowledges that the defendant had not admitted that had there been a shorter period of intensive care, the claimant would have avoided her subsequent and resultant brain injury. Nonetheless, whilst this may have been only a partial admission, it was significant and, of itself, sufficient for the claimant to have entered judgment for damages to be assessed. It was also enough for a "win" to have been achieved under the terms on which the CFA was subsequently made. In Mr Hutton's submission, it is clear that whatever else, the claimant would have recovered an amount of damages that was significant (at least £25,000) based upon the partial admission.
22. With regard to events in February and March 2013, Mr Hutton draws attention to a telephone call which had taken place on 4 February 2013 between the fee earner at Clyde & Co and his opposite number at Irwin Mitchell, in respect of which the file note had said this :-

" I asked her to think without prejudice of where her claim is really valued at, in case we can in fact do a deal now".

23. Mr Hutton contends that this was clearly an indication that the defendant had wanted to settle the case, but notwithstanding this entreaty, the claimant's response had been an application by Irwin Mitchell on 27 February 2013 to discharge the legal aid certificate, which had occurred two days later.
24. The next step taken by the defendant had been to make its Part 36 offer of £285,000 on 18 March 2013. Given that the value of the initial admission had been £25,000, this was a significant increase. Nonetheless, on 27 March 2013, the claimant had entered into the CFA with the staged success fee and had taken out an ATE policy. The following day Clyde & Co had received notice of the CFA, but it was clear that the change of funding had happened at a time when the claimant knew that the claim was likely to settle. In Mr Hutton's submission, it had been unreasonable for the claimant to have taken this step in view of these factors.
25. Matters had then moved on. On 12 July 2013 the claimant had made her Part 36 offer of £446,752 in respect of which, on 23 July 2013, Clyde & Co had asked for a breakdown of the damages and details of the costs to date. By letter dated 27th of August 2013, Irwin Mitchell had stated that "our estimate of general damages is £175,000." On 13 September 2013 the defendant had made its further Part 36 offer in the sum of £325,000 plus CRU which was accepted on 26 September 2013, with the approval hearing taking place on 13 December 2013, concluding the action. Against this factual background, Mr Hutton submits that the choice to end the legal aid funding and to move to the CFA was unreasonable.
26. Mr Hutton submits that the weight of authorities support the defendant's case on unreasonableness. So far as Sarwar is concerned, it is his contention that it is the adequacy of the advice that is the important factor in considering the reasonableness of the advice (see paragraph 51 of the judgment). With regard to other case law, in Bowen v Bridgend County Borough Council (2004) EWHC 9010 (Costs) the court had considered whether claimants in low value housing repair claims who had funded their cases using CFAs instead of legal aid, had been justified in doing so. The test adopted by the court was whether they had acted reasonably in instructing a solicitor on CFA terms with ATE insurance. In finding that the choice of funding was reasonable, the court had expressed itself to be satisfied that "the reasonable costs they incur would be recoverable even if it would lead to extra expense for the defendant". Mr Hutton submits that in reaching that decision, the test applied there and to be applied here, is whether the choice was one that was reasonable in all the circumstances.
27. In Hughes v London Borough of Newham (23 May 2005) (unreported) , which also concerned housing this repair claims, Master O'Hare said this at paragraph 42 : -

"In my judgment the claimants' solicitors and agents have failed to give the claimants proper advice as to the availability of legal aid. Accordingly it was unreasonable for these claimants to seek to recover from the defendant the additional liabilities (success fee and insurance premium) which their chosen method of funding resulted in… The benefits to these claimants from not using legal aid …..are too dearly bought bearing in mind the cost of the success fee and insurance premium they give rise to".

28. It follows that in that case too, the test adopted was whether the choice was one that was reasonable in all the circumstances. It that case, the Court had found that it had not been reasonable.
29. Forde v Birmingham City Council [2009] 2 Costs LR 206 also dealt with the adequacy of the advice given to the client in relation to the availability of legal aid funding in the context of regulation 4 of the CFA Regulations 2000 then in force. Mr Hutton submits that the adequacy of advice is thus relevant to the question of whether the client has made a reasonable decision. Where the decision has been made on the basis of unsound advice, it follows, he contends, that an unreasonable choice will have been made.
30. LXM v Mid Essex Hospital Services NHS Trust [2010] EWHC 90185 (Costs) concerned a cerebral palsy case in which pessimistic advice had been given under a legal aid certificate. The certificate had been transferred to a new firm of solicitors which had been successful in obtaining an admission of liability with the matter proceeding under a CFA culminating in a settlement of £3.7m. The decision to change the method of funding had added £330,583 for the ATE premium and £249,739 for the success fee. In considering whether the claimant's decision to enter into a CFA when legal aid was available, was reasonable, it was to be viewed, the court found, "... through the eyes of the claimant...", ...with the emphasis being "... was the CFA and attendant ATE policy a reasonable choice for the claimant at that time, having regard to all the circumstances?" (see Master Gordon-Saker's judgment at 64 -65). In Mr Hutton's submission, the finding that the choice had been reasonable in that case, was due to the fact that the client had been offered a CFA "lite" (meaning the solicitor would take as full payment whatever costs were recovered from the paying party) at a time when there would have been no additional 10% general damages available. It follows that the facts in that case are markedly different to those here where the Simmons v Castle 10% would have been payable had the case continued on legal aid under.
31. Mr Hutton submits that that decision can be contrasted with Howarth v Britton Merlin ...No. 25 of 2005 SCCO Costs cases) in which the client had expressed an unwillingness to go into debt in order to fund disbursements under a CFA, which meant that she should have been advised to apply for legal aid. Thus the unreasonable choice had resulted from inadequate advice from her solicitor about the merits and de-merits of legal aid as against CFA/ATE funding. By analogy, Mr Hutton submits that had the client in this case been told of the Simmons v Castle point, (which it is common ground she was not), it might have impacted upon her decision and the burden of proof was on her to prove that the additional liabilities had been reasonably incurred.
32. In this context, Mr Hutton also relies on Surrey v Barnet & Chase Farm Hospitals NHS Trust (2015) EWHC 9085 (Costs). In Surrey , the claimant had suffered serious brain damage at birth and had taken successful proceedings against the relevant NHS Trust, having instructed Irwin Mitchell to act on his behalf, initially under legal aid, but from March 2013, under a CFA. The same point which arises here was taken by the NHS Trust, namely whether the change of funding had been a reasonable choice given the level of additional liabilities that it had thereby occasioned - a success fee of £57,119.40 and an ATE premium of £50,681.78. This had also been in circumstances where no Simmons v Castle advice had been given and the additional 10% was worth about £20,000.
33. At paragraph 88 et seq., Master Rowley said this :-

"It seems to me that the test of materiality in this context is very similar. There is no evidence before me to indicate whether the claimant or his litigation friend would have considered the abandoning of up to £20,000, which was more or less guaranteed, in return for peace of mind regarding future funding. They may have decided that the system that had apparently worked for 7 years was unlikely to break down in the final stages and they would have rather have the money and risk the funding issues. They may have taken the view that QOCS [Qualified One Way Costs Shifting] protected them sufficiently not to incur an ATE premium. The possibilities for speculation are endless. What is certain, however, is that the Simmons damages were of significance and so should have been explained to the claimant's litigation friend so that informed consent to a change in funding could be given. The absence of any evidence from the litigation friend on this point, to my mind, speaks volumes.

89. In the absence of being informed of these issues, it seems to me impossible to say that the claimant can have made a reasonable choice to change funding arrangements. Consequently, I find that the additional liabilities flowing from the new arrangements are unreasonably incurred and as such are not recoverable from the defendant ."

34. Mr Hutton submits that the similarities here are striking, both in terms of the monetary amount that the Simmons v Castle advice would have added, and in respect of the absence of mention of a highly material factor which had thereby prevented the client from having made a reasonable choice. In Mr Hutton's submission, any reasonable claimant or litigation friend would wish to know whether, by entering into a different type of funding arrangement, they would be writing off an entitlement to a significant sum, in this case, as much as £17,500. As was the case in Surrey, Mr Hutton argues that absent the advice, the choice was unreasonable, so the claim for the additional liabilities must fail.
35. Mr Hutton recognises that Master Rowley reached a different conclusion in Hyde v Milton Keynes Hospital NHS Trust (SCCO 17 January 2015), but in that case, the legal aid certificate had become exhausted prior to the decision to change to the CFA and the extra 10% damages was not a material or relevant factor. Here, the position is different : extensions to the legal aid certificate were granted to date and there is no evidence to suggest that future requests for further legal aid extensions were likely to be refused. For these reasons, Hyde is distinguishable.
36. Likewise is the decision of Master Leonard in AMH v The Scout Association (SCCO 28 January 2015) Mr Hutton submits. In that case, the claimant had pursued a sexual abuse case using legal aid but had been advised in February 2013 to change to a CFA. On the facts, the Master found that there had been a realistic possibility that as the claimant was intending to return to the UK to obtain work, he would be required to make a contribution to his legal aid or even that the certificate would be discharged. Accordingly, the decision to move to a CFA had been reasonable even though when taken, there had been no advice about capped success fees under the post 1^st April 2013 LASPO regime or in respect of the additional 10% damages.
37. As to these, Master Leonard had said this at paragraph 15:-

"I am unable to accept that a choice must be unreasonable if it is not made on the best available information. I think one has to consider… whether the choice was reasonable in all the circumstances. It is, as I suggested, possible to make the right choice for, here, not so much the wrong reasons as an incomplete set of reasons".

38. Mr Hutton submits that whilst, as here, the advice was incomplete, it was straightforward to understand why Master Leonard had reached the decision that he had. For the Master, the crucial point had been that the CFA on offer had been a CFA lite and that the advice had focused on the prospect of the client of maintaining his claim for damages without any deduction in relation to unpaid costs. Master Leonard had expressed the position thus at paragraph 16 :-

"That was the advantage for the client of entering into what (and I think this is crucial) was a genuine CFA lite arrangement in which the solicitor was according to his attendance note (and I had no reason to doubt its accuracy) guaranteeing to the client "if you enter this arrangement you will not lose any of your damages to meet unpaid costs, whether your own or the other party's".

39. In Mr Hutton's submission, AMH is distinguishable : in contrast with the situation here, the advice, albeit incomplete, had focused on the really important point, namely that the CFA lite gave the client protection from deduction in respect of his damages, in circumstances where the 10% would have been a significantly lesser sum than the £17,500 potentially available here.
40. That said, Mr Hutton accepts that even if imperfect advice is given, the client may still make a choice that is reasonable, but if the advice itself is unreasonable because it is flawed, it is his submission that the decision must also be flawed. In the present case, £17,500 (being 10% of the amount that the claimant was told that the general damages were worth) was a significant amount. It was also guaranteed. Being advised that such a sum would be lost were a CFA to be signed, is a matter which, in Mr Hutton's submission, will impact upon the client's decision. It follows, he says, that had Irwin Mitchell known of the Simmons v Castle point, their advice might have changed and even if that had not been the case, the client would have needed to think very carefully before making her decision. In these circumstances, the burden of proof is on the claimant to show that the right decision would have been made. Where, as here, seriously inadequate advice was given, Mr Hutton argues that there is then a further difficulty for the claimant namely to prove what would have happened had it been adequate. With no evidence having been adduced from the litigation friend about how she would have proceeded had adequate advice been received and where the solicitors have not sought to establish any evidence about what their advice would have been had they taken into account Simmons v Castle, such as that " My advice would have been no different", Mr Hutton contends that they are not in a position to discharge that the burden of proof.
41. In terms of the nature of the test, Mr Hutton submits that the absence of discussion about Simmons v Castle is the crucial issue and in this context, he is critical of Ms Cumberland's evidence, albeit he acknowledges that the instruction from those above her in the firm to review legal aid cases, had not highlighted the 10% damages point either- (this is a reference to evidence given by Ms Cumberland that fee earners had been instructed by Irwin Mitchell's partners to review all their legal aid cases in anticipation of the LASPO changes). He further draws attention to similarities in the actual words used in the witness statements which bear a striking resemblance to those that appear in the evidence relied on before Master Rowley in Surrey.
42. Mr Hutton submits that whilst Ms Cumberland "did her best", she did not have a full grasp of all the relevant factors such as the 10 % damages point when she gave her advice to the client and in these circumstances, her firm cannot demonstrate that a reasonable choice was made. In particular, it is difficult to discern what the client was told and when, no attendance note having been disclosed, and although the CFA was entered into on 27 March 2013, the witness statements do not explain whether the advice was given by telephone or at a meeting, still less the date and the nature of the information imparted. The best that Ms Cumberland could do in her evidence was to say that she had given the client advice because the she would have required an explanation and that she, the client, had accepted it. In these circumstances, Mr Hutton submits that the failure to advise is without excuse and thus insufficient upon which to found a proper or reasonable conclusion before taking the decision to change the method of funding.
43. For all these reasons, Mr Hutton submits that the additional liabilities should be disallowed.

THE SUBMISSIONS FOR THE CLAIMANT

44. In deciding whether the claimant's choice to move from legal aid to a CFA was reasonable, Mr Marven submits that the test to apply is one that is objectively reasonable and that even if the advice could be criticised, so long as a reasonable choice has been made, both the success fee and ATE premium are recoverable in principle. Put differently, it is the claimant's case that if it was objectively reasonable for the claimant to incur these costs, they are recoverable in principle and that is an end to it. Once that is established, the point of argument about what the client would have done had the advice been different, is never reached. It follows that Mr Marven's starting point is that even if the advice were to be "utterly wrong" (as he put it) , provided the ultimate decision reached is objectively reasonable, the additional liabilities are recoverable.
45. Here, Mr Marven acknowledges that the advice was less than complete. The absence of anything said about the Simmons v Castle point was to be regretted and was an error. Moreover, it was accepted that the extra 10% was potentially a significant sum and not de minimis. That said, Mr Marven submits that that does not take the defendant anywhere. He argues that provided that the item of cost has been reasonably incurred, the fact that the advice leading up to the taking of the decision is open to criticism, does not render it unreasonably incurred. Mr Marven expands the point by reference to the following example : suppose there are two claimants with identical claims. One claimant has explained to him the Simmons v Castle point : the other does not. Both have their legal aid certificates discharged and sign pre 1^st April 2013 CFAs with recoverable success fees and ATE premiums. In those circumstances, it would be a nonsense were the defendant to be obliged to pay only the additional liabilities for the claimant who had had the Simmons advice, but nothing for the claimant who had not. In both cases, where the choice has been reasonable, the quality of the advice should make no difference where, at the end of the day, each client has made an identical choice.
46. If that be right, Mr Marven submits that it then becomes irrelevant to consider what a client, who had had imperfect advice, would have done if he had been given advice that had been perfect. In such circumstances, such a client who made a witness statement or gave evidence on the point would, in all likelihood, simply say " I would have done the same". That would be to apply a test that was not objective whereas the objective test is easy and clear and it helps the defendant not at all, Mr Marven submits, that no evidence has been led on the claimant's behalf about how she would have behaved had the advice been complete.
47. So far as Ms Cumberland's evidence is concerned, Mr Marven submits that it should be accepted. From her first witness statement, it is plain, he says that a conversation took place with the client on 27 February 2013 and he invites me to find that on that occasion, detailed advice was given and instructions taken in the light thereof. The essence of that advice was that LASPO would change the way in which some cases could be funded in the future, that there were risks that the LAA might not finance the claim to trial and that a CFA offered a better option for doing so, in which case, it was "now or never". That advice had been accepted, as a result of which the application to discharge the legal aid certificate had been put in hand on 1 March 2013. In Mr Marven's submission, not only was that responsible advice to have given, but even if that had not been the case and the advice had been poor, nonetheless it still would have been objectively reasonable for the client to have chosen the CFA. It follows that the test advanced by Mr Hutton that if the advice is not good enough, there cannot be a reasonable choice, is simply wrong.
48. In terms of the cases, Mr Marven points out that Bowen, Forde, and Hughes were all decided when the Conditional Fee Agreement Regulations 2000 were in force. These had placed stringent obligations on solicitors in terms of the advice and information they were obliged to give clients, but those regulations had subsequently been revoked. In these circumstances they were no longer relevant, albeit that circumstances could exist even under those regulations where the CFA might have been unenforceable due to incomplete advice, but the insurance premium was nonetheless recoverable because it had been reasonably incurred. That was the case in Sarwar, Mr Marven submits, where the court had attributed to Mr Sarwar the benefit of competent legal advice when deciding whether the choice had been reasonable. It follows, Mr Marven contends, that the correct reading of paragraph 51 of the judgment is that an item of costs will not be disallowed just because the advice leading up to the decision is flawed. On the contrary, if a claimant had no BTE insurance cover and the solicitor did not enquire about its existence, the failure to make that enquiry would not defeat the claim for an ATE premium for insurance that had reasonably been taken out later. Put another way, the fact that the advice was open to criticism did not prevent the ATE premium being recoverable in that case.
49. So far as LMX and AMH are concerned, Mr Marven observes that although less than complete advice was given in both those cases, the court upheld the claims for the additional liabilities and he urges on me that I should follow both decisions. With regard to Hyde, he points out that the test used was an objective test, namely where legal aid had run out, the court had accepted that it had been objectively reasonable for the client to have moved to a CFA.
50. The approach in Hyde is to be contrasted with that adopted in Surrey, which , Mr Marven respectfully submits, was incorrect. The line of reasoning followed by the court was along the lines that if the client was not reasonably informed, because there was no Simmons v Castle advice, the client could not make a choice that was objectively reasonable, so the claim for the additional liabilities must fail. Expressed differently, what the court meant was that the day would have been saved for the claimant had Simmons been mentioned.
51. In Mr Marven's submission, such reasoning takes the court down the wrong track. He argues that to adopt such an approach means that the court is adopting a materiality test : indeed that was, in terms , what Master Rowley had done. To do so, he contends, is misplaced. First, "materiality" was a factor in the Regulations 2000 which were revoked. Second, "materiality" is taken from a situation which does not arise here, namely the advice to be given to a patient before being invited to consent to an invasive surgical procedure (see Montgomery v Lanarkshire Health Board (General Medical Council intervening) [2015] UKSC 11. Third, were the Surrey approach to be the correct one, in respect of any item challenged, the court on assessment would need to ask "was the client given complete advice before this item of cost was incurred?" in which case, detailed assessment hearings would be unwieldy and unworkable. For these reasons, Mr Marven submits that Surrey is distinguishable and I should not follow it and that the claims for the ATE premium and success fee should be allowed in principle.

LEGAL AID VERSUS CFA

52. Before setting out my conclusions, I need to mention that both parties placed emphasis on the respective merits and de –merits of legal aid in comparison with funding under a CFA. Without intending any disrespect to counsels' comprehensive submissions and for reasons which follow, I have not found such a comparison to be conclusive in deciding the outcome of the first issue. In short, it is my view that there is no advantage or combination of advantages which makes one choice more compelling and irresistible than any other notwithstanding that both Mr Hutton and Mr Marven make good points for their respective clients as might be expected.
53. In no particular order of importance, points which have been highlighted include that fact that under the CFA lite , the claimant's damages would remain intact, whereas under legal aid, the "statutory charge" could bite on a proportion of them. Under legal aid, there is then the possibility (as in Hyde) that the limit of cover would be reached and no extensions granted, leading to the discharge of the certificate, a risk that would not exist under a CFA. Also under legal aid, the loss of an interlocutory application or failure to beat a Part 36 offer might lead to a set–off against costs awarded in the claimant's favour or even against the damages. That would not happen under the CFA lite where the ATE policy would protect the claimant against any adverse costs order. However, under a CFA, there would be no 10% extra on general damages under Simmons v Castle as would be the case under legal aid.
54. Then the LASPO considerations. In order to claim additional liabilities from the defendant, any CFA needed to be made by 31 March 2013 at the latest. Any CFA signed after that date would have meant that any success fee and / or ATE insurance premium would be payable out of the client's damages. Given that the CFA was "lite" , any unrecovered base costs would be waived, so the risk of the statutory charge which might arise under legal aid would be avoided.
55. In terms of the difficulty of the case, as I have said, Mr Hutton places emphasis on the value of the admission in the Letter of Response. Mr Marven's stance is different. He points to the fact that there was a real risk in the event that the defendant had made a Part 36 offer in respect of the limited admission and thereafter had continued to fight the rest of the claim. In such circumstances, it would be a mischaracterisation to say that liability had been admitted and that all the case was about was the sum that the claimant would receive in compensation. In response, Mr Hutton says that the value of the admission was £25,000 and that meant that a "win" under the CFA was assured.
56. Other lesser arguments centred around whether the Civil Legal Aid (Merits Criteria) Regulations 2012 applied when the LAA was considering costs/benefit ratios or if they are yet to be implemented : also what would have happened had the claimant died. Would QOCS protection (see CPR 44.17) have been available and how easy would it have been for the personal representatives to have continued with the claim, either under legal aid or using a post 1 April 2013 CFA? In particular, the fact that there had been a pre-existing funding arrangement might have meant that had the claimant died on or after 1 April 2013, no Qualified One Way Costs shifting protection would have been available were an adverse costs order to have been made against whoever took over the case, having regard to CPR 44.17, there being, as yet, no settled law on the point.
57. The points are illustrative that here are good arguments on both sides, but in the end and for the reasons I shall give, save for the Simmons v Castle point which has weighed more heavily than any other, none individually has been conclusive to the outcome.

DECISION

55 . The starting point is to decide whether the extent to which, if at all, the quality of advice given by a solicitor to his client, can be held against either or both when working out how much a paying party should pay under a costs order. If the answer to that is "not at all" if the client makes a reasonable choice, then Mr Hutton's arguments collapse straightaway. In this context, the boldest case advanced by Mr Marven was that even if the advice was "utterly wrong", it would still be possible in a given case for a choice to be made that was nonetheless objectively reasonable.

58. With respect, I do not agree with Marven. I ask rhetorically, how can a client make a choice that is objectively reasonable if the advice from which he must make his decision is " utterly wrong"? The point might succeed if the advice was mostly wrong but slightly right and the client chose to follow the correct part, but where the whole is entirely incorrect, in my view whatever choice the client makes will be unreasonable. Were it to be otherwise, a solicitor who gave bad or incompetent advice or even advice that was improper in order that he could recover a success fee, would benefit from his own omissions and shortcomings, even if the client made a choice that it was objectively reasonable for the client himself to take. That is an answer to Mr Marven's "identical advice" point (see paragraph 41 above). Permitting the solicitor who has given the bad advice would enable him to benefit from his own wrong if, in doing so, he could thereby recover a success fee : that is impermissible (see Algussein v Eton College [1988] 1 WLR 587). In my judgment, the adequacy of the advice is plainly a relevant factor, as it was in Sarwar. For these reasons, Mr Marven's submission at its boldest, does not succeed : in my view, the adequacy of the solicitor's advice to his client can have a bearing upon the amount that it is reasonable for the client's opponent to pay in costs where he, the opponent, is the paying party.
59. Mr Marven's fall-back from that submission is that if a reasonable claimant, reasonably (as opposed to unreasonably) advised, could have incurred a particular item of cost, then it follows that it is a reasonably incurred cost and therefore a reasonable cost. Thus the test is one of reasonableness. Mr Hutton also accepts that the test is one of reasonableness – see paragraph 18 above. Given this submission, I put to counsel during the course of argument that if the test was, indeed, objective, as both counsel broadly agreed that it was, that the wording used by Master Gordon Saker in LXM might be as close to the right test as there is, in the absence of a higher authority on this point. For convenience I set out what the Master said : -

"64....it is a weighing up of which option is the best option for the claimant in the light of reasonable advice and if the CFA is a reasonable option, and it does not have to be proved that it was the best, only that it was a reasonable option, then costs are recoverable under the CFA.

65. Broadly, I would agree with that but my emphasis would be slightly different. Was the CFA and the attendant ATE policy a reasonable choice for the claimant at that time having regard to all the circumstances?"

60. Mr Hutton did not disagree (see his skeleton argument at 70): Mr Marven agreed, with the refinement that it only has to be a reasonable option. In view of this, I start from the position that the choice must be one that is reasonable, founded upon advice that was, of itself, reasonable, having regard to all the circumstances. For that reason it is necessary to undertake an examination of the factors which would go into making the advice reasonable, or the absence of those factors which would make it unreasonable. That is the same exercise which Master Gordon Saker undertook in LXM – see his judgement at paragraph 57. It is also the method used by the Court of Appeal in Sarwar when the merits and de-merits of BTE insurance as against ATE were considered. For that reason I cannot accept the argument advanced by Mr Marven that to do so would be to make the whole process of detailed assessment unwieldy and unworkable.
61. The factors addressed by Irwin Mitchell in their advice to the claimant are summarised in Ms Cumberland's witness statement and I have repeated them in paragraphs 16 to 17 above. It is not suggested by Mr Hutton that there were any omissions by Irwin Mitchell as regards these matters save for the Simmons v Castle point. In respect of that, he is critical because no attendance notes have been disclosed and that Ms Cumberland in her evidence was "struggling to recollect" (as Mr Hutton put it) about when she had given the advice to the client over the telephone and nothing is said in the bill about these matters.
62. These are fair points but can be answered. First, advice about funding is not recoverable between the parties and in these circumstances, there is no reason why the dates and times of meetings with the client against which no claim for payment is made from the defendant, should be shown in the bill. Second, although I agree with Mr Hutton's view that in giving her evidence, Ms Cumberland appeared to struggle in her recollection, that is far from establishing that she was mistaken or not telling the truth, neither of which I should make clear, were part of Mr Hutton's case. In my judgment, Ms Cumberland deserves some credit at least for volunteering very frankly that she did not give the Simmons v Castle advice because she was not aware of the case at that time (a factor which Mr Hutton generously agreed should not be held against her when Ms Cumberland had not suggested in her evidence that the instruction to consider each of her legal aid matters had also told her about Simmons v Castle, from which it is to be inferred that the request to review her files had made no reference to the Simmons case) and that this is a point persuasive in helping me to accept her evidence that she gave the client a full exposition about changing funding, albeit the exact date when that was done she cannot now remember. Doing the best I can on the material before the court and having heard Ms Cumberland's evidence I consider that it is more likely than not that the advice was given by telephone on or just before 27 February 2013.
63. I also consider that it was proper for Irwin Mitchell to give advice in relation to the LASPO changes since a forced move to an alternative method of funding post-LASPO would have meant that on a CFA, the client would have been liable for any ATE insurance and the success fee, if either or both were to be charged. It follows that I do not share Mr Hutton's client's view on this point that the process in March 2013 was "all about getting Irwin Mitchell a success fee" as was said during the course of argument. Whilst it is right that this was the last moment on which the change to a CFA with recoverable additional liabilities could be made, this was true for the legal profession as a whole. Accordingly I consider that it was proper advice for the claimant to be told that funding methods were being changed by statute with effect from 1 April 2013 and that if she wished to move to a CFA with recoverable additional liabilities, it was "now or never". Accordingly, I am against Mr Hutton with regard to his submissions about the evidence.
64. That is not the end of the matter however. Despite the comprehensive nature of the arguments, and having decided that the adequacy of advice as between solicitor and client is a matter which can sound in the amount that a paying party can be required to pay on detailed assessment, in the end the outcome drills down into a relatively short point on the facts. Was this claimant's choice objectively reasonable based upon the advice she was given by Irwin Mitchell, taking all relevant circumstances into account?
65. I conclude that it was not because it was premised upon advice that was more than merely "incomplete", as was the case in AMH. A very significant component was missing. What the client should have been told was that "if you move to a CFA you will forfeit immediately the right to an additional 10% of the general damages you recover, which we estimate could £175,000, so as much as £17,500". It was therefore advice that was unreasonable.
66. As Mr Hutton points out, we do not know what the client would have said had the Simmons advice been given. It could have been "It is worth giving up £17,500 to have the certainty that under a CFA, I will be litigating in a risk-free costs environment in which I will keep all the damages". On the other hand, it could also have been "A settlement discussion has been opened over the telephone, an offer has now been made, we are very close, and £17,500 is a lot of money to give up. As it is, I have the protection of the legal aid certificate. Thank you for giving me this advice but let's play it safe and stick with what we have got as it looks as though we may be able to agree terms before long".
67. Irrespective, it was a material and important factor about which, as Ms Cumberland accepts, her client should have been told.
68. That is not conclusive for the defendant however because Mr Marven submits that materiality is not part of the reasonableness test and, with respect, he is critical of Master Rowley's decision in Surrey. He contends that the limit of the test is to decide whether the cost was reasonably or unreasonably incurred. Mr Hutton's riposte is that materiality is all. If the extra 10% would have been but a few hundred pounds, that would have been immaterial but where, as here, the sum in question could have been as much as £17,500, that was a figure to which the client would have attached significance, and was, accordingly, material. Put another way, the amount in question might have made the client's mind up for her and was therefore material. That is the reason why the cases upon which Mr Hutton relies all focus on the adequacy of the advice and if the client relies on it, then it is material.
69. I agree with Mr Hutton on this issue for the reasons he has given. The Simmons v Castle point was a factor which might have tipped the balance of choice one way or the other had the claimant known about it. It follows in my view that a component which is capable of influencing an outcome must be one that is material to the decision that is taken, in the same way that one that is incapable of doing so because it is immaterial, is not. By way of example, had the extra 10% been £175 and not £17,500 it would have had no bearing on the client's decision because it was de minimis, but where, as here, it could have been as much as £17,500, it is likely to have been a factor, if not the factor, critical in persuading the claimant whether or not to move from legal aid to a CFA. The reason? The 10% was material to her choice. I accept Mr Hutton's submission on this point. It follows that the claimant's decision, based as it was upon advice that was flawed in a material way, was not objectively reasonable and the claims for the success fees and ATE premium therefore fail.
70. Having reached my decision by the route that I have, it is unnecessary to decide whether it would have made any difference had there been a witness statement from the client to the effect that, had she been given the Simmons v Castle advice, she would still have signed the CFA. Mr Hutton submits that it is a factor in his client's favour that the exact nature of the advice given to the client has not been disclosed (skeleton argument paragraph 71) and in the absence of anything from the claimant, it is not known what her choice would have been. Mr Marven says that since it is an objective test, it would be an unhelpful exercise to ask what the claimant would have done. If cross-examined, in all likelihood the client would have said "I would have done exactly the same as I did", prompting the well-known expression "she would say that, wouldn't she".
71. As I say, I do not have to decide the point, but in case I am wrong I can see that there would certainly be difficulties for Mr Marven even if the claimant had served a witness statement saying that she would have made the same choice. In Cox v Woodlands Manor Care Home [2015] 3 Costs LO 327, the client was "entirely satisfied" with the damages recovered through her solicitor's services and "dismayed" at the fact that they would go unrewarded for their endeavours on her behalf because the firm had forgotten to give her notice of cancellation of her CFA, under cancellation regulations then in force (see judgment of Underhill LJ at paragraph 17). As it seems to me, that is an example of where a client was given broadly good advice, but which was flawed in one material aspect, about which the client could not have cared less and whose concern was not for herself, but for her solicitors. Nonetheless, the solicitor went unpaid. Although not quite on all fours with the situation here, because the cancellation regulations are not in point, the case shows that even if the client is satisfied with the advice, that may not be enough. Expressed in another way, it is illustrative of the fact that the quality of the advice is capable of having a significant bearing on how much the paying party will be required to pay under a costs order, even where the client takes no issue with that advice.
72. For the reasons I have given, I consider that it would not be reasonable to visit upon the defendant any liability for the success fees and ATE premium in the claimant's bill and these items are, accordingly, disallowed.

Level of the success fee

73. In case I am mistaken about the principal issue, I propose to state the level of the success fee I would have allowed had the claimant been successful.
74. As I have said, the success fee in Irwin Mitchell's CFA is in two stages, 80% if the matter were to have settled at any point up to 3 months before trial, and 100% thereafter. It follows that a 20% discount has been applied here by the claimant to reflect the early settlement. It is common ground that CPD 11.7 applies and that the court looks at the risk to the solicitor of going unpaid at the moment the CFA in question was made.
75. Mr Hutton contends that the success fee is excessive, even allowing for the discount. The CFA was made on 27 March 2013, by which time the defendant had already offered £285,000 to settle the case. In addition, the claimant was by then in receipt of the partial admission of breach of duty given in the letter dated 19 January 2011. That admission had been worth £25,000 and accordingly, a "win" had been guaranteed at the time that the CFAs for both solicitors and counsel had been made. By that time too, the claimant had the benefit of supportive expert evidence (five in number) and whilst Mr Hutton recognises that Irwin Mitchell had accepted the Part 36 risk (that if the claimant failed to beat a Part 36 offer made by the defendant, the solicitors would not claim any costs for their work after the last date that the offer could have been accepted), that risk did not justify the level of the success fee claimed. In the circumstances, the defendant's offer was 20% for Irwin Mitchell and 10% for counsel.
76. Mr Marven, in addition to highlighting the Part 36 risk, points out that there was still a significant dispute about causation and that the extent of the admission of liability was distinctly limited. Whilst the value of that admission might have enabled the claimant to enter judgment for a figure in the region of £20,000, she would have been on risk as to costs in respect of any subsequent Part 36 offer in circumstances were there was a continuing dispute about causation. So far as counsel is concerned, Mr Marven accepts that on a literal reading of his CFA, the risk assessment did not include any element for quantum risk and that accordingly he is not in a position to advance on counsel's behalf, that his success fee should be as high as Irwin Mitchell's. Nonetheless, the other factors I have mentioned apply to him as they do to the solicitors.
77. In reaching my decision, having regard to all the circumstances, I give weight to the following points ;-

•    Ms Cumberland had assessed the prospects of success in excess of 60% (see her witness statement dated 13 November 2014 at paragraph 14)

•    when the CFA was signed, the claimant was in receipt of the admission in the letter of 19 January 2011 and the offer to settle the case for £285,000

•    Irwin Mitchell took on the Part 36 risk

•    the success fee was staged

78. Having regard to the above, I am in no doubt that the success fee claimed is excessive. The claimant cannot have it both ways, on the one hand, submitting to the LAA that prospects of success exceeded 60%, but on the other contending for a success fee of 100% which presupposes the risks of winning and losing were the same, so 100% is justified on that basis. That immediately militates in favour of a lower success fee than the figure claimed.
79. Next there is the letter of 19 January 2011. I agree with Mr Hutton that this would give grounds for the claimant to believe that the case would be successful. However, I do not accept his submission that, accordingly, this meant that the claimant would have a guaranteed "win" at the time that both CFAs were made. In Fortune v Roe [2012] 2 Costs LR 288, Sir Robert Nelson said this at paragraph 40 :-

"Until an amount of damages is agreed, there cannot be any agreement in respect of which the claimant could sue for breach or otherwise enforce……[41]… The fact that she was entitled to recover damages after the admission of liability and judgment being entered for damages to be assessed was not therefore sufficient; there had to be an agreement to pay her an amount of damages acceptable to her before a "win" would occur under clause (3n)"

80. It follows, in my judgment, that the admission in the letter of 19 January 2011, whatever emphasis is placed upon how limited or unlimited it was, was insufficient to have guaranteed a "win" at the time the CFAs were signed. Whilst an offer was on the table, no damages had been agreed. Accordingly, there had been no "win", still less was one that was guaranteed, at that stage.
81. So far as the staging of the success fee is concerned, the guidance in Fortune is again helpful – see paragraph 34 :

"Whilst it is correct to say that the use of a staged success fee has been encouraged and may, where appropriate, warrant the court being more lenient to the assessment to the higher stage fee, if the lower stage is not activated (see U v Liverpool City Council), that is not relevant in this case. The provision of an unrealistic first stage success fee cannot in itself justify [the] second stage fee. The question is whether the success fee bears a proper relationship to the risk and that cannot be determined by the mere existence of the first stage success fee."

82. In my judgment, although the success fee was staged, I consider that the first stage was pitched at too high a level, given, as I have said, Ms Cumberland's own assessment of the risk. It follows that I give very limited weight to the staging in this case as a justification for allowing the success fee in the sum claimed.
83. Taking all the factors I have mentioned into account and doing the best I can, I consider that the prospect of success when the CFAs were signed was in the region of 75% to 80% which would give a success fee of between 25% and 33.3%, in addition to which an amount should be added in respect of the Part 36 risk. Overall, I consider a success fee of 40% for the solicitors would be reasonable, and given Mr Marven's concession, 30% for counsel.

The ATE premium

84. The arguments on this issue were brief.
85. The premium is claimed at £18,881.78, block rated. Stage two of three stages was reached. Mr Hutton argues that that figure is too high given that it produced a level of indemnity of £500,000 in circumstances were, for part of the claim, the claimant had costs protection under legal aid. He draws attention to the allowance by Master Rowley in Surrey, where the court decided that cover of around £250,000 on the block rated basis was appropriate. On a broad brush approach, Mr Hutton submits that £12,000 would be reasonable for the premium.
86. Mr Marven emphasises that stage 2 had been reached and that, with the expectation of a trial lasting 5 to 7 days, and several experts on both sides, the level of indemnity was realistic. Moreover, in Surrey, stage 3 had been reached, which is not position here. Finally, Mr Marven draws my attention to the authorities that the onus is on the paying party to produce evidence as to the unreasonableness of the premium (Kris Motor Spares Ltd v Fox Williams [2010] 4 Costs LR 620) and the court should be slow to adjust block rate premiums (Rogers v Merthyr Tydfil County Borough Council [2007] 1 Costs LR 77).
87. I agree with Mr Marven that when the premium is challenged, the paying party must produce material to support any attack on its level. Here there is none. That said, given the fact that the claimant had legal aid protection for the costs for part of the case, I consider there should be reduction to reflect this and also for the fact that at £500,000, the level of indemnity was too high. I would allow £15,000.

Conclusion and next steps

88. For the reasons I have given, the submissions of the defendant succeeds on the first issue. Accordingly, the success fees and ATE premium are disallowed. If that be wrong, I would allow a success fee of 40% for Irwin Mitchell and 30% for counsel, plus £15,000 for the premium.
89. This judgment is to be handed down the absence of the parties. They should confer to decide whether the balance of the issues can be agreed and if not, there is liberty to apply by letter to restore the detailed assessment on a date to be fixed. So far as the costs are concerned, if the principle of who is to pay them cannot agreed, I shall decide the point at the restored hearing of the detailed assessment.