Conduct issues that could have been dealt with at trial cannot be revisited during detailed assessment, the author of Friston on Costs, sitting in the Senior Courts Costs Office, has ruled.
Deputy Master Friston said there was a “very simple principle” at stake.
This was that, in ordinary circumstances on assessment, rule 44.11(1)(b) “is not to be used in such a way as to allow a paying party to adjust or negate his or her liability for costs for reasons that were or could have been addressed at the time that the costs order was made”.
He added: “Put otherwise, a costs judge is bound by terms of the costs order as properly interpreted, and there is nothing in rule 44.11(1)(b) that allows a costs judge to revisit the formulation of that order.”
Deputy Master Friston was ruling in Andrews v Retro Computers Ltd  EWHC B2 (Costs), an application for partial or total disallowance of the claimant’s costs pursuant to rule 44.11(1)(b). This was on the basis of alleged gross misconduct before and during the proceedings.
He said the principle laid down by Lord Justice Dyson in Lahey v Pirelli Tyres Ltd  EWCA Civ 91 – that “the costs judge has no power to vary the costs order that is deemed to have been made” – applied where the alleged misconduct took place during the claim itself, as opposed to during the assessment.
The court had to guard against the possibility of double jeopardy, he continued.
“A costs judge will, of course, consider disallowing costs that have been incurred as a result of any unreasonable or improper behaviour, but even this must be done in such a way as to avoid double jeopardy.
“In my view, a costs judge would (in the absence of some special order, such an order expressly reserving certain issues to the assessment) be overstepping the mark if he or she got drawn into making wholesale reductions that would properly be the province of the judge who made the order for costs.”
The only exception could be if the costs order allowed for the judge to do so.
“For all these reasons, I find that even if I were to find that there had been unreasonable or improper conduct, the court’s ability to impose the types of sanction sought by the defendants is limited.”
He then went through the nine conduct allegations made and dismissed them all, assessing the claimant’s costs at £38,392 (including VAT).