In April 2013 the “old” proportionality test in the then CPR 44.4(2) was replaced by the “new” proportionality test in CPR 44.3(5). The essential difference being that necessity no longer trumps proportionality. There remain a few cases still being dealt with under the “old” rule. This was one of them. It was an appeal against decisions made by the Senior Costs Judge, Master Gordon-Saker in the course of a detailed assessment, including that the base fees, viewed globally, were not disproportionate.
This was an appeal from a decision of Master Gordon-Saker made in the course of detailed assessment proceedings brought under s70 Solicitors Act 1974. The Master had summarily dismissed the claimant’s points of dispute on work done on documents, on grounds that they did not further the overriding objective. Specifically, the points of dispute were not, “to the point”. They did not summarise all of the particular objections to the specific points which the claimant wished to advance at the hearing so that the court and the defendant knew or knew sufficiently the case the defendant had to meet.
It’s been six years since the introduction of the “new” proportionality rule in CPR 44.3(5). In that time there have been a handful of decisions at circuit judge level but none from the higher courts, until now. On appeal from Master Whalan in the Senior Courts Costs Office, The Hon. Mr Justice Marcus Smith was tasked with determining a number of issues arising from the detailed assessment of costs including the correct approach to proportionality. Unfortunately, but not surprisingly, the decision does not offer much in the way of general guidance.
This was a decision of Deputy Master Friston (author of Friston on Costs) in the Senior Courts Costs Office. Having determined that the Claimant had made and beaten a valid Part 36 Offer solely in relation to hourly rates the Master concluded that it would be unjust to award them an additional 10% uplift on the assessed profit costs.
Another important reminder of the importance of giving your client the best costs information possible throughout the life of your retainer. In this case the senior costs judge Master Gordon-Saker determined at first instance that notwithstanding the fact that the former client had not placed any reliance on any of the estimates provided to it by the solicitors, and acknowledging that unforeseen work had been undertaken, he was entitled to use the estimate as a yardstick in determining the reasonable costs payable as between solicitor and client. On appeal, Ms Clare Ambrose (Sitting as a Deputy Judge of the High Court) declined to interfere with this decision.
Following his more widely reported decision on CPR 3.18(b) HHJ Dight declined to interfere with the Master’s ruling on proportionality where he reduced the claimant’s assessed costs from £52,000 to £40,000. The paying party appealed on grounds that the Master did not go far enough. She was unsuccessful.
HHJ Dight finds on appeal that the fact that the sum claimed on assessment in any given phase of a bill is lower than the budgeted figure for that phase, because the anticipated work had not been completed and/or by virtue of the indemnity principle, is itself capable of being a ‘good reason to depart’ under CPR 3.18(b). Once CPR 3.18(b) had been invoked it was then open to the paying party to challenge the figure which was then being claimed by the receiving party, and they did not have to assert a further good reason to enable the court to do so.
There have been number of cases recently dealing with alleged misconduct in the course of detailed assessment proceedings and applications under CPR 44.11. In this latest decision, an appeal from the Senior Courts Costs Officer, the High Court upheld the decision of Deputy Master Campbell (formerly Master Campbell) that notwithstanding a number of mis-certifications in the Bill of Costs these were all explainable errors none of which amounted to unreasonable or improper conduct under CPR 44.11.
On appeal against decisions made in the course of a detailed assessment in the Senior Courts Costs Office Mrs Justice Yip found (amongst other things) that the Deputy Master had been wrong to go behind the strict wording of the order for costs in order to give effect to what she believed the maker of the order had intended, rather than to what it actually said.