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Coulson: judges can summarily assess costs even if they didn’t make the order

High Court: overriding objective supports approach to summary assessment [1]

High Court: overriding objective supports approach to summary assessment

A judge can summarily assess the costs of hearings even if he or she did not make the relevant costs orders, the High Court has ruled.

Mr Justice Coulson said that not only was there nothing in the rules (part 44.6) or practice direction (PD 44, paragraph 9.7) which prevents a different judge from summarily assessing the costs of a hearing conducted (or an order made) by a different judge, “but such a blanket prohibition would make no practical sense”.

Ruling in Transformers And Rectifiers Ltd v Needs Ltd [2015] EWHC 1687 (TCC) [2], he continued: “Obviously, in the majority of cases, it will be appropriate, even necessary, for the same judge to conduct the summary assessment. If, for example, there was a contested hearing, and the detail of any summary assessment exercise carried out thereafter depended on the views formed by the judge about the parties’ submissions, or the witnesses, or their conduct generally, then it would be inappropriate for any other judge to attempt the exercise.

“But an inflexible rule that the same judge must, in every case, conduct the summary assessment, cannot be derived from the CPR.”

The claimant sought a summary assessment of three sets of costs of interlocutory matters, two ordered earlier in the case by Mr Justice Edwards-Stuart and the third by Coulson J. The defendant argued that only the judge who had made the orders could undertake that summary assessment.

Coulson J said that paragraph 9.7 was couched in permissive terms, and added that a blanket ban could not be in accordance with the overriding objective.

“It is often the case that a summary assessment is the only just and proportionate way to deal with costs. It would be absurd if such an exercise could not be undertaken because of, say, the death or indisposition of the judge who conducted the original hearing or made the original order, or because he or she is on circuit and is unable to deal with the matter when it arises. Some degree of flexibility must be permissible.

“That is particularly so where, as here, the two orders made by Edwards-Stuart J… were made, not on the basis of and following a contested hearing, but as a result of a paper application supported by written evidence.

“In circumstances where there was no hearing, and the order was made on the basis of the papers, the summary assessment of costs can just as easily be undertaken by another judge, because precisely the same material is available to him or her as was available to the judge who made the original order.”