England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice, Strand, London WC2A 2LL.
		30th March 2000.

1. MR JUSTICE BUCKLEY: This is an appeal from the decision of Costs Judge Campbell on detailed assessment of the Claimant's costs, pursuant to the Order of the Court of Appeal dated 18th February 1999.
2. The Judge carried out a detailed assessment on 6th and 8th September 1999 and 20th October 1999. One of the items challenged by the Defendant was the Claimant's claim to an hourly expense rate of £80. She maintained an entitlement to that rate because she claimed to have suffered pecuniary loss. The Judge reserved judgment on that issue and gave his decision in writing on 5th November 1999. He subsequently provided written reasons for his final decision including his award of costs of the detailed assessment to the Defendant. He restricted the Claimant to the charging rate for Litigants in Person of £9.25.
3. The Final Costs certificate dated 25th February 2000 assessed the total costs at £1,732.92; the costs of detailed assessment due to the Defendant at £5,019.80 (including VAT) and therefore directed payment of £3,286.88 to the Defendant within 14 days.
4. Broadly speaking, a Judge will allow an appeal such as this if satisfied that the decision of the Costs Judge was wrong: CPR 47.26 (2). That is easy to apply to matters of principle or construction. However, where the appeal includes challenges to the details of the assessment, such as hours allowed in respect of a particular item, the task in hand is one of assessment or judgment rather than principle. There is no absolute answer. Notwithstanding that the Judge to whom the appeal is made may sit with Assessors, as I did here, the appeal is not a re-hearing and given the nature of the Costs Judge's task and his expertise I would, usually, regard it as undesirable for it to be so: compare CPR 47.26 (l)(a) with 47.26 (2).
5. I do not think it would helpful or even legitimate for me to add phrases or adjectives to the approach I have identified. But since the appeal is not a re-hearing, I would regard it as inappropriate for the Judge on appeal to be drawn into an exercise calculated to add a little here or knock off a little there. If the Judge's attention is drawn to items which with the advice of his Assessors he feels should, in fairness, be altered, doubtless he will act. That is a matter for his good judgment. Permission to appeal should not be granted simply to allow yet another trawl through the Bill, in the absence of some sensible and significant complaint. If an appeal turns out to be no more than such an exercise the sanction of costs may be used.
6. I thought it right to state the approach I shall adopt, since this appeal does include, at Ground 5, complaints concerning the hours allowed in respect of the individual items.
7. I turn to the more substantial points raised by the Claimant. I shall follow the order of the Grounds in the Notice of Appeal.
8. Ground 1.
9. This is a complaint that the Costs Judge adopted a wrong approach to assessing the amount he allowed to the Claimant as a Litigant in Person.
10. CPR 48.6 deals with Litigants in Person. It provides:

"(2) The costs allowed under this Rule must not exceed, except in the case of a disbursement, two thirds of the amount which would have been allowed if the Litigant in Person had been represented by legal representative.

(3) Costs allowed to a Litigant in Person shall be -

a. such costs which would have been allowed if the work had been done or the disbursements made by a legal representative on the Litigant in Person's behalf;

(4) Subject to paragraph (2), the amount of costs to be allowed to the Litigant in Person for any item of work for which costs relate shall, if he fails to prove a financial loss, be an amount in respect of the time spent reasonably doing the work at the rate specified in the Costs Practice Direction."

11. In Morris v. Wiltshire & Woodspring District Council (unreported) 16th January 1998 Jacob J. said:

".....find out in respect of the item what, at the Litigant in Person charging rate, the total is. Compare that with two thirds of the notional solicitor rate. Use the lower of the two items....."

12. I am content with that summary and gratefully adopt it.
13. It is not clear to me that the Judge adopted a wrong approach generally. However, I and my Assessors independently concluded that in some instances the time allowances which he arrived were somewhat short. We wondered whether he had kept in mind that it is appropriate, in a proper case, to allow a Litigant in Person more time for a particular task than would be allowed to a solicitor. A solicitor's charging rate includes or takes account of the fact that he has support staff, secretaries, messengers and so forth. A Litigant in Person, for example, must himself post letters, take files to court and photocopy documents. "The time spent reasonably doing the work....." mentioned in CPR 48.6 (4) permits a reasonable assessment of time spent by the Litigant in Person and should reflect those matters. It is in view of this that, advised by my Assessors, I have allowed some uplifts to the time spent on certain items of the Bill. I list those in due course.
14. Ground 2.
15. The Claimant pointed to the amount awarded to her, in particular in respect of the Court of Appeal hearing, and the costs allowed to the Defendant in respect of the detailed assessment and submitted they were disproportionate. She referred me to CPR 44.5 and the over-riding objective.
16. The submission, I am afraid, is misconceived. If, as was the case here, a Litigant in Person is restricted to the Litigant in Person charging rate of £9.25 an hour, it is inevitable the costs of the other side, if legally represented, are likely to be very much higher. The proportionality mentioned in CPR 44.5 is that the costs incurred by a party must be proportionate to the amount of the claim and the litigation generally. It does not mean that the costs of a legally represented party must be reduced below a reasonable level of remuneration because the other side is a Litigant in Person restricted to £9.25 an hour.
17. Ground 3.
18. This was perhaps the Claimant's main bone of contention. Her submission was that the Costs Judge was wrong to restrict her to £9.25 per hour, he should have accepted her evidence of financial loss and allowed £80 an hour or at least some higher rate of charging.
19. On 8th September 1999 the Judge ordered the Claimant to make and file a witness statement in support of her application for a rate of £80 per hour. He adjourned the detailed assessment to Wednesday, 20th October in order to give time to the Claimant to produce her evidence. At the adjourned hearing the Defendant, not having filed evidence in reply, relied upon argument.
20. The Judge referred to RSC Order 62, Rule 18 (3) which provided that where the Litigant in Person has not suffered any pecuniary loss he shall be allowed not more than £9.25 per hour in respect of time reasonably spent. He also noted that the CPR had come into effect after the date of the Order giving rise to the costs but before the hearing of the detailed assessment. He referred to CPR 48.6 which I have already mentioned and noted that the Costs Practice Direction provided for £9.25 per hour.
21. As to the Claimant's evidence, the Judge correctly noted that the Claimant was in paid employment as a Principal Consultant with KPMG on a basic salary of £36,000. That, in essence, her claim to loss was that through spending time pursuing her appeal she had not met her performance target with KPMG and lost a bonus of £3,700. In addition the Claimant claimed to have undertaken legal work for private clients since 1996 and that owing to her commitments to the appeal she had turned away two potentially lucrative matters. One offering a fee of £2,000 - £3,000, the other £10,000. I do not propose to recite in detail the Judge's reasoning; reference may be made to his Reasons dated 5th November 1999. However, in his Reasons the Judge pointed out that the Claimant had produced no evidence verifying her earnings and bonuses in 1996 and 1997 when there was no appeal to work on. Nor had any evidence been placed before him of the amount that the Claimant earned from her private legal work after she began to take cases in 1996. He was thus unable to make any comparison between the period in question and her alleged earnings in previous years. He said this:

"It ought to have been a straight forward task to set out in her witness statement the sums earned from private legal work since there would need to have been a return to the Inland Revenue for this income. However, as I have said, no information was before me demonstrating a downturn in business at the material period which might have been attributable to the appeal and therefore supportive of the claim for pecuniary loss."

22. No further evidence was proffered to me and, I might add, there was no evidence from KPMG to the effect that the Claimant had lost her bonus in the relevant year or for any particular reason. The Judge had pointed out that there was no evidence to show that the alleged fees for legal work could have been earned during the material period, in other words, that the work could have been completed within that time, indeed he inferred it could not. He also found a complete lack of evidence as to the Claimant's charging rate for her legal work and hence any rational basis for the £80 an hour charged.
23. The Judge's conclusions were expressed in these terms:

"These factors led me to conclude (as the Chief Taxing Master did in Mainwaring) that the Claimant has gone part of the way to showing that she is in a situation that a pecuniary loss might arise. However, she has failed to produce any evidence as to what that loss actually was and in those circumstances she can recover only the rate prescribed by the Rule, namely £9.25 per hour."

24. The reference to Mainwaring is to Mainwaring v. Goldtech Investments Ltd (1997) 1 All E.R 467.
25. On the evidence I have seen, which was before the Judge, I agree with those conclusions.
26. Ground 4.
27. This Ground concerned the costs of detailed assessment which the Master awarded to the Defendant.
28. By letter dated 5th August 1999 the Defendant offered to pay the Claimant £2,500 for her costs. The offer was not accepted. The Practice Direction to CPR 47 provides that an offer by the paying party should usually be made within 14 days after service of the Notice of Commencement. In this case the Claimant's first Bill gave insufficient details and was ordered by the Judge to be withdrawn. The revised Bill was sent under covered of letter dated 15th July 1999. The CPE Board would have had to consider the question of making an offer and I do not consider the offer was made significantly late.
29. The Judge expressly referred to the general rule under CPR 47.18 to the effect that the receiving party is normally entitled to his costs of the detailed assessment proceedings. However, CPR 47.18 (2) provides that the court must have regard to all the circumstances including:

"a. The conduct of all the parties;

b. The amount, if any, by which the Bill of Costs has been reduced, and

c. Whether it was reasonable for a party to claim the costs of the particular item or to dispute that item."

30. Further, under CPR 47.19 the court must take into account any offer in deciding who shall pay the costs of the assessment proceedings. The Judge clearly had these matters in mind and in his final Reasons pointed out that had the Claimant succeeded on the "pecuniary loss" issue he would have allowed her almost six and a half thousand pounds. In the event the point was decided against her and recalculating the costs at £9.25 per hour she was left with a little over £1,000. Which when disbursements were added still fell significantly short of the Defendant's offer. Clearly the Judge took the relevant factors into account and I can see no evidence he considered anything that was inappropriate to consider. In all the circumstances I consider the Judge's conclusion to be a reasonable one and see no reason to interfere with it.
31. Ground 5.
32. Under this Ground the Claimant challenged the hours allowed by the Judge in respect of the various items in her Bill.
33. As I have indicated I would not readily make minor adjustments to a Costs Judge's assessment of hours spent. However, in view of the remarks I made under Ground 1 in this judgment I have, with the benefit of advice from my Assessors, made the following adjustments which I believe meet the justice of the case:

2(6)	Obtaining photocopies	Allow 1 hour extra.
2(7)	Binding and Indexing	Allow 1 hour extra.
2(8)	Lodging Bundles	Allow 3 hours extra.
2(10)	Obtaining transcripts	Allow 15 minutes extra.
3(14)	Preparation of Bundle	Allow 1 hour extra.
3(15)	Binding	Allow 1 hour extra.
3(16)	Lodging and Service of Bundles	Allow 2 hours extra.
4(25)	Obtaining transcripts	Allow 15 minutes extra.
6 (33)	Attendance at Royal Courts of Justice, Public Trust Office and Civil Appeals Office	Allow 2 hours extra.
6(34)	Attendance at Public Trust Office	Allow 20 minutes extra.
8 (46)	General organisation of files	Allow 1 hour extra.
11(59)	Routine correspondence	Allow 6 hours extra plus a notional £15 for the cost of postage and FAXs

The above items total 18.83 hours plus £15, i.e. £189.18.

34. I would also allow £40.25 which it would be reasonable to allow under item 10 of the Bill. 10 (56) included £5 expenses and 10 (58) included a £35.25 disbursement. The Judge simply allowed 6 hours and 40 minutes for item 10 as a whole and overlooked or disallowed these two items of disbursements.
35. At the hearing of this appeal my Assessors noticed that the Final Costs certificate was mathematically incorrect when compared with the items which had actually been allowed by the Costs Judge. Subsequent correspondence with the parties enabled agreement to be reached as follows as to what the Judge had allowed:

Time spent (including preparation of Bill)	£830.77
Disbursements (including SCCO Court Fee)	£909.12
Costs awarded to receiving party on set aside application	£158.
Costs awarded to paying party (including VAT)	£4,136
Balance in favour of paying party £3,28	£2,238.11 (not 6.88 as stated in the certificate).

36. I am grateful to the parties for co-operating with my Assessors in order to make these corrections.
37. Thus the appeal is allowed to the extent of allowing the extra amounts indicated underGround 5 and the Certificate will be redrawn to reflect those items and the figures in paragraph 35. above.