The case

The High Court (by way of HHJ Paul Matthews) handed down Judgment recently in the case of Brake & Anor v Guy & Ors (Costs) [2022] EWHC 2907 (Ch).

The case came about following an application for an Order under regulation 7(2)(b) of the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020 (“the 2020 Regulations”).

The Applicants were successful in their application and therefore applied for their costs to be assessed. The Respondents argued that the costs of the Applicants’ application should be subject to a detailed assessment rather than summary assessment. In this case, the paying party (the Respondents) were litigants in person (“LiPs”).

The LiPs’ request

The Respondents’ request for a detailed assessment was based on the Applicants failing to file their statement of costs 24 hours before the hearing, in accordance with CPR PD 44 para 9.5(4). The Respondents also sought to rely on the appeal case of Tomlinson v Radiocom Systems Ltd [2011] EWCA Civ 1832 where it was said by Sir Robin Jacob on appeal:

“…the judge erred in principle in any event by not challenging this bill himself in a manner which a litigant in person would have been quite unable to do and by not indicating that an alternative possibility was that there should be a detailed assessment” …

thereby ruling that the Judge had been wrong to summarily assess costs where the paying party was a litigant in person.

The Applicant’s response

The Applicants responded submitting that para 9.5(4) applies only where there is a hearing – not to matters which were dealt with on paper (as was the application in this matter). They also submitted that the Respondents had around 48 hours to consider the schedule prior to the hearing.

The Judge’s decision – basis for siding with the Applicant

HHJ Matthews agreed with the Applicants in that the Respondents “had the statement of costs for 48 hours before their reply submissions were due to be lodged”. He also suggested that Courts often proceed to a summary assessment even where less than 24 hours’ notice of the statement of costs has been given. The Judge therefore did not consider that the Respondents had suffered any material prejudice by the late service.

The Judge’s decision – does ‘Radiocom’ actually apply here?

Regarding Radiocom, the Judge drew attention to the disparities between this and the case being considered. Firstly, he noted that the costs in the Radiocom case amounted to nearly £70k whilst the costs in this case were less than £10k. The Judge in Radiocom also failed to explain to the LiP that a detailed assessment of the costs was an option. Finally, the Judge in Radiocom did not raise issue with any element of the schedule despite reducing the costs claimed by 25%.

The Judge’s decision – a final nail in the coffin

HHJ Matthews noted whilst the Respondents were correct in highlighting that the paying party was a litigant in person, the litigants here were much more experienced and the costs sought were much less.

The litigants’ very request for a detailed assessment further drew the Judge’s attention to the fact that they were experienced; given that they were clearly aware of the difference between the modes of assessment.

The Respondents added more fuel to the fire by challenging a number of items recorded in the Applicants’ schedule, as well as the total costs claimed.

The Judge decided on these facts that costs here should be assessed summarily and did not warrant being subject to a lengthy and detailed assessment, unlike in Radiocom.

So, in summary…

The Respondents’ argument regarding modes of costs assessment rather ironically went against their own submissions that they should be afforded more consideration as litigants in person. In fact, their very ability to convey the arguments put forward indicated to the Judge that they were not novices in the world of litigation, unlike most litigants in person.

When making submissions on the issue of costs, advocates would also do well (and be less likely to draw the ire of the Judge) to save pushing for a detailed costs assessment for cases where:

• the total costs sought are more substantial (e.g. over £20k);
• where the matters decided in the case were of a more complex nature, for example the hearing lasted more than one day;
• or where the paying party shows substantial grounds for disputing the costs sums claimed.