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
		5 February 2014

Mr. Justice Teare :

1. This is an application for permission to appeal by Mount Eden Land Limited ("Mount Eden") from two decisions of Master Campbell made on 1 May and 15 August 2013 in the course of a detailed assessment of various bills rendered by Speechly Bircham LLP ("Speechlys") to Mount Eden in respect of work which it had done for Mount Eden as its solicitor. The assessment was pursuant to section 70 of the Solicitors Act 1974. By an order of Tugendhat J. dated 14 November 2013 the application for permission and the appeal (if permission were granted) were ordered to be heard together. They were so heard on 22 January 2014.
2. The events leading up to the two decisions of Master Campbell may be summarised as follows:

i) Mount Eden is the owner of a large number of properties in London and retained Speechlys to undertake transactional and litigation work between 1994 and 2011. Following the termination of the retainer Mount Eden applied on 25 March 2011 for a detailed assessment of certain invoices. 19 were rendered on 25 February 2011 and total £17,445. They had been paid. Other older invoices which had been paid were also challenged. Mount Eden was only given leave to challenge 31 of these with a total value of £87,893. Thus the detailed assessment concerns 50 invoices totalling some £105,000, all of which had been paid.

ii) On 5 September 2011 Master Campbell gave directions which included an order that Mount Eden serve Points of Dispute. The parties would have understood that those Points of Dispute were required to comply with the Costs Practice Direction which required Mount Eden to state concisely the nature and grounds of the dispute and where practicable to suggest a figure to be allowed for each item in respect of which a reduction is sought (see paragraph 35.2 of the Costs Practice Direction pre 1^st April 2013.)

iii) Points of Dispute were served.

iv) After two adjournments (one at the behest of the court and the other because of a failure to disclose certain documents by Speechlys) the detailed assessment commenced on 29 November 2012. The Points of Dispute had been supplemented following the further disclosure by Speechlys.

v) During the course of the hearing the Master gave a ruling on three issues of general application which arose out of the Points of Dispute. He then proceeded to the detailed challenges. One item, worth £325.19, was considered and, after three pages of transcript, was allowed. The second item, worth £8,690.05, was considered. Soon after the debate commenced Speechlys costs lawyer, Mr. Dean, noted that Mount Eden were "straying off piste from the points of dispute…" and added that "if we start embarking on examining every item in detail which has not specifically been raised in the points of dispute we will be needing significantly longer than the three days that we were discussing earlier." The Master said a little later that "if we do this for every item it is going to take weeks." Mr. Dean said that "all of these points are being raised for the first time today and they are beyond the scope of the points of dispute……..we must be given some notice of the points that are being made and be given some time to respond adequately to them." The Master asked Mr. Bishop, Mount Eden's costs draftsman, "is it your intention to go though this as you have been all the way through just picking out ten minutes here, half an hour there ?". Mr. Bishop replied "Those are my instructions." He accepted that the Points of Dispute were "not specific to a particular date" and he took the point that "they are not individual to each item." He said he was "within the generality of the points of dispute." The Master said that there were several options; one was not to permit Mount Eden to challenge the costs "line by line" because the points of dispute had not been fully particularised, another was to give the parties time to try to narrow the issues and thereafter to come back to the court with "amended points of dispute". He said that "as things stand at the moment they are pretty general. Generally the time claimed in these invoices is excessive. It is very difficult to see from Speechly Bircham's point of view how they can address that when the challenge is so general". The Master opted for the second option.

vi) On 29 November 2012 the Master made an order which required the parties to meet in order to narrow the issues and said:

"If it is the intention of the Claimant to challenge individual items in the breakdown of the Defendant's bills on an item-by-item basis, any disputed item should be identified and attempts made at the meeting to resolve that item. Absent any resolution, the Claimant must set out as briefly as possible in a schedule, those items that remain in dispute (which should be served on the Defendant and a copy filed at court). For the avoidance of doubt, the Claimant's objections are to be limited to those items in the schedule and in the existing Points of Dispute."

vii) Mount Eden provided a schedule on 16 January 2013. It was in an unorthodox form. Instead of identifying the items challenged by reference to the breakdowns of Speechlys bills (where such breakdowns had been requested and provided) the items challenged were identified by reference to Speechlys time sheets. In relation to the time sheets no more than two objections were taken. One was that the item was excessive, the other was that there was no supporting evidence. The letter explained those terms as follows:

" 'Excessive' – this includes our recurring theme that the work often described should only, reasonably, be one unit, rather than the two or more units often charged.

'No supporting evidence' – this includes where either the file is silent as to the work claimed for that particular day, or there is no file note of document supporting the time claimed.

Some items carry ticks in both columns. Here we take the view that both heads apply……."

viii) On 17 January 2013 Speechlys wrote to Mount Eden's solicitors complaining that they relied on two broad headings "but provide no further details as to the particular concerns in relation to each of the entries which are challenged."

ix) The parties met but no agreement was reached.

x) On 7 February 2013 the parties returned to the Master. Mr. Dean said that Mount Eden's schedule was inadmissible because it did not comply with the Master's order. Mr. Bishop said that the schedule complied with the court's order. The Master said that he would examine the schedule and decide whether Mount Eden was entitled to rely on it or not. There was little debate about what would happen if it were determined that Mount Eden was not entitled to rely upon it though at one point Mr. Dean envisaged that in that event the assessment would proceed on the existing Points of Dispute but at another asked whether in that event the assessment could not proceed on the line by line basis, to which the Master replied that he could not give an answer until he had seen the schedule.

3. The Master considered the schedule and gave his ruling on 1 May 2013. He concluded that the schedule did not comply with his order. In the course of his judgment the Master made the following observations about the November 2012 hearing:

"9. .…..it was obvious from the slow progress made at the hearing that the assessment could not proceed in a way which was proportionate to the court time allotted to it, unless the Claimant put its arguments with more clarity. What the Defendant needed to know was what, precisely, was the case being taken against the firm in the invoices. That was certainly not as clear as it should have been from the Points of Dispute which had been served in order to comply with paragraph 4 of my Order of 5 September 2011. Specifically, the Points had been general in nature…."

"10. ….In my opinion, the Points of Dispute, as they then stood, were unfocussed and discursive. For that reason I stood over the assessment after the short adjournment on the first day of the hearing on 29 November 2012 so that the very experienced costs lawyers for the parties could meet in order to narrow the issues and report back to the court on 7 February 2013. In the event that it did not prove possible at the meeting to resolve their differences, I directed that the Claimant must serve a schedule setting out those items that remained in dispute "as briefly as possible"…."

"11. The intent behind that wording was that the Points (as amended) should not be prolix. That said, it was my belief also that the parties knew full well what was required and that the revised Points should identify precisely what was in issue in the bills. They would have known that not only from the course of the arguments that had taken place before me but also due to the difficulty the court had experienced with the bill that had been assessed through the absence of a focussed set of Points of Dispute."

4. The Master referred to the Costs Practice Direction paragraph 35 which required the nature and grounds of the dispute to be stated concisely and that where practicable a figure should be suggested as to the sum to be allowed in respect of items in respect of which a reduction is sought. He held that

"21. …….in asserting hundreds of times in relation to items of work that each is "excessive" and that there is "no supporting evidence", the objections fail to comply with the Practice Direction, still less do they enable the Defendant to understand the complaint being made against the work undertaken in anything more than the most general terms, even though the Claimant has had access to all the Defendant's papers. If that were not enough, in most cases no attempt has been made to suggest an alternative figure."

5. The Master then referred to the Overriding Objective and concluded that although he had made orders for a just disposal of the proceedings at proportionate cost Mount Eden had failed to comply with them, the orders of 5 September 2011 and 29 November 2012. He said:

"27. …….The Points of Dispute as originally served and as amended will not enable a detailed assessment to be carried out at proportionate cost without loss of fairness to the defendant. Were the matter to continue, a line by line assessment with hundreds of issues limited to "excessive" or "no supporting evidence" is not a just exercise which could be undertaken at proportionate cost, in my judgment."

6. He concluded that it would not be dealing with the case justly to permit Mount Eden a third opportunity to put its case into an intelligible form and accordingly stayed the assessment.
7. Thereafter Mount Eden applied to the Master to set aside or vary his order staying the assessment on the grounds that he had done so of its own initiative. A further hearing took place on 22 May and on 15 August 2013 the Master gave judgment. He held that he had not made an order staying the assessment of his own initiative. His reasons for so concluding also explain why he decided to stay the assessment and it is therefore necessary to set them out in full:

"25. To begin with, the parties had accepted that the detailed assessment could not continue based upon the original Points of Dispute as amended. This is plain from what Mr Bishop told me on 29 November 2012 that his instructions were to proceed by way of a line-by-line assessment [18/194F and 196E]. At that point, one bill had been assessed with difficulty and the assessment of the next bill had ground to a halt as it had proved impossible to complete the task line-by-line, because the Points of Dispute were incapable of permitting this to be done [Mr Bishop 18/194B: Mr Dean 18/194 C-E]. It was against that background that I gave directions for the Costs Lawyers to meet and for the schedule to be served. Thus the parties and in particular Mount Eden were, or ought to have been, fully aware of the consequences were the schedule not to be admitted. It would mean that the Points of Dispute had not been particularised in the way required by the Court, that the original Points remained defective and that the detailed assessment could not be advanced any further on a line-by-line basis. Since I had already decided that a "broad brush" approach could not be adopted [judgment 29 November 2012 paragraph 5 and [transcript 18/196D-E] and that the line-by-line assessment Mount Eden wanted was now impossible, the only consequence was that described by Mr Browne – "The detailed assessment was effectively at an end" [see his skeleton argument paragraph 9(c)]. For that reason, the stay was not imposed of the court's own initiative. It simply reflected the reality of the situation which had been reached in the proceedings. It follows that even if Mr Carpenter is right to the extent that "foreshadowing" meant "you know what will happen if you don't get the schedule right, don't you?" and the consequence was not spelt out to the parties on 7 February, I do not accept that this means I stayed the assessment of my own volition. Once the schedule was excluded, the detailed assessment had run its course and could not be taken any further.

26. Mr Carpenter asserts (skeleton argument paragraph 41(a)) that there was no hint of the Court's criticism of the form of the original Points of Dispute in the hearing of 29 November 2012, that it was never suggested that Mount Eden was in breach of an order of 5 September 2011 and that the Court had been clear that Mount Eden should be permitted to make line-by-line challenges. I disagree. The passages from the transcript I have mentioned in paragraph 22 above demonstrate that the Court was extremely concerned about the Points of Dispute and that Mr Bishop had accepted that the assessment could not proceed line-by-line as his client wanted unless they were amended. In my opinion, a fair reading of the transcript can lead only to one conclusion, that this was "the last chance saloon" for Mount Eden and if the Points could not be particularised in a form which permitted Speechly Bircham to understand the case being made against the firm at proportionate cost, the assessment could not proceed further and would effectively be at an end.

27. In reaching this conclusion, I have not ignored what Mr Carpenter has said on instructions about the conduct of Speechly Bircham. If additional costs have been incurred due to late provision of material, that is a point which may weigh in Mount Eden's favour, but in so far as it may do so, I consider its effect will sound only in the costs of these proceedings. So far as conduct more generally is concerned, I accept Mr Carpenter's submission that this is not a relief from sanctions matter. The reason for that is that the hearing on 7 February 2013 was to deal with the admissibility of the schedule. The fact that I ruled against Mount Eden on that point did not impose or implement a sanction. Accordingly, CPR 3.9 is not engaged.

28. Mr Carpenter also submits that the wholesale prevention of any detailed assessment is itself disproportionate to the Court's concern that the parties must conduct these proceedings at proportionate cost and that the stay operates in breach of Mount Eden's rights to a fair trial under Article 6 ECHR. Again, I disagree. He contends that the worst position that Mount Eden can find itself placed is to have a detailed assessment by reference to the existing Points of Dispute - the amended pleadings analogy.

29. The reality of the situation is that the trial began, but could not be completed because of the manner in which Mount Eden wished it to proceed. Detailed assessment either adopting a "broad brush" or line-by-line proved impossible due to shortcomings in Mount Eden's Points of Dispute. Therefore a fair trial has not been frustrated by the court, but, on the contrary, by Mount Eden's instructions to Mr Bishop that it take place line-by-line, only to be followed by its failure to particularise its complaints in a way which would enable the Court to deal with the case fairly and at proportionate cost. Indeed, the proof has been very much in the eating in this respect: one small bill assessed and another not completed, due to the inadequacy of the Points of Dispute both as originally drafted and subsequently amended. For these reasons, the ECHR point fails. The amended pleadings analogy suffers a similar fate. Here there are no Points of Dispute to fall back on. Those served are obsolete for the line-by-line assessment Mount Eden has insisted upon.

30. Mr Carpenter also expresses concern that if the detailed assessment ends now, his client will not benefit from the reductions he has achieved already, nor from those which would be won on the line-by-line assessment. He also advances the proposition that the Court appears to have pre-judged the outcome of the assessment and has been unduly favourable to Speechly Bircham in treating the risk of the excessive costs that the detailed assessment might involve if it is permitted to proceed, as a point which has weighed against Mount Eden. Again, I disagree. Under the CPR, this assessment proceeds on the indemnity basis so any doubt will be resolved in favour of Speechly Bircham, not Mount Eden. That puts Mount Eden at a disadvantage from the outset. Moreover, it is a fact that I have already decided the five minute unit point against Mount Eden, likewise the recovery of costs from third parties point. Against that factual background, explaining to Mount Eden the realities of the situation which it now faces is, in my opinion, a matter that it is appropriate for the court to raise in furthering the overriding objective. Put differently, the expense of another five days' detailed assessment (even assuming that the Points of Dispute are in order, which they are not) would extinguish any saving that Mount Eden might achieve in reductions to the bills many times over. As Mr Browne has correctly pointed out, proportionality includes both the costs as between the parties and the needs of other Court users (see the speech of Lord Dyson MR 22 March 2013 to the Judicial College). I agree with him that having regard to the facts and circumstances I have described, a stay is appropriate.

31. I do not consider that any of the alternatives suggested by Mr Carpenter are realistic. In so far as sampling is concerned, this might have had some attraction earlier in the proceedings, but we are now at the end rather than at the beginning. It is also incompatible with the line-by-line assessment Mount Eden has instructed him to pursue. In short, it is too late.

32. In the result, I find that the order of 1 May 2013 was not made of the Court's own initiative, so CPR 3.3(5) is not engaged. It follows that the correct way to challenge that order is by way of appeal. If I am wrong in those conclusions, the outcome is the same: without the schedule, Mount Eden has no Points of Dispute which will enable it to mount line-by-line challenges, so the detailed assessment has proceeded as far as it can and can go no further. For these reasons, the application is dismissed.

8. It is unnecessary to consider whether the Master was right to conclude that he did not stay the assessment on his own initiative. Mount Eden was content to seek permission to appeal from the Master's decision that the schedule did not comply with the Master's order and from the Master's decision staying the assessment. Both of those decisions were case management decisions taken by an experienced costs judge in the specialist field of assessment under the Solicitors Act. An appellate court should be cautious when called upon to allow an appeal from such decisions.

The Master's decision that the Schedule did not comply with his order

9. In essence Mr. Carpenter submitted on behalf of Mount Eden that the Master erred in holding that the schedule provided by Mount Eden failed to comply with the November 2012 order because he wrongly compared the schedule with the requirements of the Costs Practice Direction and wrongly held that the schedule did not comply with the Costs Practice Direction.
10. In my judgment the Master was entitled to compare the schedule with the requirements of the Costs Practice Direction. Any direction for Points of Dispute to be served would reasonably be understood by the parties as a direction for Points of Dispute in accordance with the Costs Practice Direction. That would certainly apply to the order of September 2011 requiring service of Points of Dispute. The order of 29 November 2012 which required a schedule of "those items that remain in dispute" is, in my judgment, no different. The context in which the order was made was a complaint that matters disputed during the assessment hearing in November 2012 were not apparent from the existing Points of Dispute. The Master described the Points of Dispute as "pretty general" such that it was "very difficult" for Speechlys to address them. There was therefore a need, in the Master's words, for "amended Points of Dispute". In that context there can be no doubt that the purpose of the schedule was to provide amended Points of Dispute. That being so the parties would have understood that the schedule must comply with the Costs Practice Direction.
11. The contrary argument advanced by Mr. Carpenter involves a literal interpretation of the order of 29 November 2012. All that was required, he submitted, was a schedule which identified which items were disputed as briefly as possible. However, such a literal interpretation does not take sufficient account of the problem which had arisen at the detailed assessment. The Master would, I think, have been surprised at the suggestion that all that was required was a list of the items of dispute with no explanation as to why the items were in dispute. I have no doubt that when he ordered that Mount Eden set out as "briefly as possible in a schedule those items that remain in dispute" he was reflecting and emphasising the requirement in the Costs Practice Direction that the nature and grounds of dispute be stated "concisely".
12. As to whether the schedule of points in dispute complied with his order the Master decided that they did not. In his first ruling he said:

"24……The schedule served in connection with that order predominantly takes two points- "excessive" and "no supporting evidence". They only tell the Claimant[sic] in the most general terms the nature of the challenge. In my judgment the Claimant[sic] cannot prepare for an assessment that is likely to last several days without knowing the case it must meet. Here, broad assertions about time being "excessive" and "no supporting evidence" are of little help. "

13. Mr. Carpenter said that this criticism was unjustified because Mount Eden had identified the items in dispute and had given a brief description of why they were challenged. However, the Master was of the clear view that the statement of the reasons ("excessive" and "no supporting evidence") was insufficient to enable Speechlys to know the case they had to meet. The Master is well-used to dealing with challenges to costs under the Solicitors Act and his opinion on this matter cannot be displaced unless it is clearly shown to be wrong. I was not persuaded that it was clearly wrong. On the contrary, it seemed to me that there was force in the Master's observation, at any rate with regard to the complaint that the sums charged were excessive. A charge can be excessive for one of several reasons. Unless the reason is particularised the claimant cannot know which reason is being relied upon. Precedent G to the Costs Practice Direction is a good indication of the different reasons which can support a complaint that the charge is excessive. No such particulars were given in the schedule. The Master was also concerned that what Mount Eden would accept as a reasonable figure was not stated. This was not strictly correct since Mount Eden had said that if an allowance was to be made for an item it should be no more than one unit, that is, 6 minutes. However, since this applied not only to very small charges of 10-15 minutes but also to items in respect of which 1-2 hours had been claimed it was unlikely that the suggestion that one unit should be allowed was an accurate statement of Mount Eden's case. I have asked my assessor, Master Haworth, for his advice as to whether the schedule was adequate for the purpose of enabling Speechlys to know the case they had to meet. His advice was that it was not, essentially, for the reasons given by the Master. In addition he was critical of the fact that the schedule had been prepared by reference to Speechley's time sheets rather than to the breakdowns provided pursuant to the order. This made it yet more difficult to understand the nature of the dispute. (This criticism had been made by Speechlys and had been noted by the Master in paragraph 16 of his decision of 1 May 2013.) I accept that advice and therefore reject Mr. Carpenter's submission that the schedule gave an adequate statement of Mount Eden's points of dispute.
14. Mr. Carpenter also submitted that the Master "effectively countermanded his ruling on 29 November 2012 that Mount Eden would be permitted to conduct a line by line challenge to the bills". However, in so far as the Master permitted a line by line challenge that was on the basis that it would be supported by a schedule of amended points of dispute which would enable Speechlys to prepare for such challenge. In the event a sufficient schedule of amended points of dispute was not provided.
15. I was therefore not persuaded that the Master's decision as to the schedule was one which he was not entitled to reach.

The Master's decision to stay the assessment

16. The fullest statement of the Master's reasons for staying the assessment is to be found in his second judgment of 15 August 2013, the material paragraphs of which I have already quoted. In essence his reasoning was that Mount Eden required a line by line challenge of Speechlys' bills. The experience of the November 2012 hearing showed that that was not practicable on the basis of the original Points of Dispute. It could only be done if an adequate schedule setting out Mount Eden's amended points of dispute were served. But that was not done and therefore the assessment on a line by line basis was not possible. Since the assessment could not be advanced it had to be stayed.
17. This was challenged on several bases. First, it was said that in exercising his discretion to stay the Master took into account irrelevant matters and failed to take into account relevant matters. Mr. Carpenter has identified at least 6 complaints under this head:

i) The Master held that Mount Eden was in breach of both the September 2011 and November 2012 orders: It was suggested that the finding of breach was unjustified. However, in my judgment the Master was entitled to find that both the original Points of Dispute served pursuant to the order of September 2011 and the schedule containing the amended Points of Dispute served pursuant to the November 2012 order were defective, given that Mount Eden required a line by line challenge, because they did not adequately state Mount Eden's case on such a challenge.

ii) The Points of Dispute would not enable a detailed assessment to be carried out at proportionate cost without loss of fairness to Speechlys: It was suggested that the assessment could have taken place at proportionate cost on the basis of the original Points of Dispute. However, the Master made it plain that the line by line assessment which Mount Eden had instructed its costs lawyer to conduct was not possible on the basis of the original Points of Dispute. In circumstances where Mount Eden had insisted upon a line by line assessment it does not lie in Mount Eden's mouth now to back-track and say that they no longer require a line by line assessment but will accept one limited to the objections taken in their original Points of Dispute.

Mr. Carpenter relied upon the observation of Lewison LJ in Sullivan v Bristol Film Studios Limited [2012] EWCA Civ 570 at paragraphs 29 and 32 to the effect that it is only where there is no proportionate procedure by which a claim can be adjudicated that it would be right to strike it out and that the court must therefore consider carefully whether there is a means by which a claim can be adjudicated upon without disproportionate expenditure. Mr. Carpenter said that an obvious way of doing so in the present case was by way of taking a sample number of billss. I accept that this was one way in which the assessment could have been conducted at proportionate cost. But the Master said it was too late to contemplate such a procedure in circumstances where Mount Eden's case had been that Speechlys' bill should be subjected to a line by line challenge. The Master was entitled so to regard the suggestion of sampling in circumstances where Mount Eden's clear instructions at the November hearing were for a line by line assessment and the schedule provided after that hearing showed that Mount Eden's instructions had not changed.

iii) Mount Eden would only achieve a "very expensive Pyrrhic victory": The Master had in mind that given the "one-fifth" rule Mount Eden would have to pay the costs of the assessment unless the reduction in the recoverable costs was more than one-fifth of the costs in issue. This was another way of emphasising the lack of proportionality in the line by line challenge upon which Mount Eden insisted upon embarking. The Master was entitled to take this matter into account.

iv) The existing Points of Dispute were inadequate to conduct an assessment: This is really the same as point (ii). I consider that the Master's conclusion that the existing Points of Dispute did not permit the desired line by line challenge to take place at proportionate cost was one he was entitled to make.

v) Mount Eden only wants a line by line assessment: It is suggested that the Master was wrong to take this matter into account because it did not follow that Mount Eden "did not want a more restricted assessment if that was all it could have." However, in circumstances where Mount Eden had made plain what its instructions were and in response the Master had permitted Mount Eden to have the opportunity to put in a schedule of its amended Points of Dispute to enable a line by line assessment to be carried out the Master was entitled to assess whether a stay of the assessment was appropriate on the basis that a line by line assessment was the type of assessment which Mount Eden insisted upon.

vi) It was too late to to decide to assess sample bills: This point has been considered under point (ii) above.

18. Mr. Carpenter further submitted that the Master's order was plainly wrong. The decision to stay the assessment was certainly a robust decision but it was taken in circumstances where it appeared to the Master, for good reason, that the assessment which Mount Eden wished to carry out could not be done at proportionate cost. The Master, when the decision to stay was challenged, gave very full reasons for the exercise of his discretion to stay the assessment. Those reasons included (at paragraph 25) the Master's assessment that, having regard to the background against which the order of November 2012 had been made, Mount Eden "were, or ought to have been, fully aware of the consequences were the schedule not to be admitted." In similar vein he said (in paragraph 26) that "a fair reading of the transcript can lead to only one conclusion, that this was the 'last chance saloon' for Mount Eden and if the Points of Dispute could not be particularised in a form which permitted Speechly Bircham to understand the case being made against the firm at proportionate cost, the assessment could not proceed further and would effectively be at an end." Mr. Carpenter did not specifically challenge these reasons but in so far as the points he made with reference to the transcript were intended to challenge them I was not persuaded that the transcript did not support them. In the circumstances I am not persuaded that the Master's decision to stay the assessment was plainly wrong.
19. Finally, Mr. Carpenter submitted that the decision to stay the assessment was a breach of Mount Eden's rights to a fair trial under Article 6 of the ECHR. This submission was not supported by any reference to the Strasbourg jurisprudence. The Master rejected the submission on the grounds that it was not the court which had frustrated the assessment "but Mount Eden's instructions to Mr. Bishop that it take place line by line, only to be followed by its failure to particularise its complaints in a way which would enable the Court to deal with the case fairly and at proportionate cost." Far from seeking to deny Mount Eden a fair trial the Master had adjourned the assessment to enable Mount Eden to prepare a schedule of amended Points of Dispute so that an assessment of the type required by Mount Eden could take place. Mount Eden failed to prepare the required schedule with the result that the assessment it required could not be conducted at proportionate cost. I was not persuaded that the stay was, in the circumstances, a breach of Mount Eden's Article 6 rights.

Conclusion

20. I give permission for Mount Eden to appeal the Master's decisions but, for the reasons I have given, must dismiss the appeal.