Lawcosts-uk.com Case ReportTel/Fax: 01229 861850/861372
COSTS —Summary assessment — Appeal to High Court — Failure to serve costs
schedule within time — Refusal by deputy district judge to grant costs — Whether
decision appropriate — Whether appropriate on appeal to make assessment in
respect of costs below— Civil Procedure Rules 1998, Pt 44 Macdonald v Taree
Holdings Ltd ChD: Neuberger J: 7 December 2000
--------------------------------------------------------------------------------
Failure to serve a schedule of costs 24 hours before the hearing of an
application for summary assessment should not of itself be sufficient for the
court in exercise of its discretion under CPR Pt 44 to deprive a party of the
entirety of their costs. Neuberger J so held when allowing Robert Macdonald's
appeal against the refusal of Deputy District Judge Cooper on 3 October 2000 to
grant his application for summary assessment of costs when he had not served a
schedule of costs 24 hours in advance as required by CPR Pt 44 and the Practice
Direction para 13.5(2). His application was made following his successful
application for a statutory demand served on him by Taree Holdings Ltd to be set
aside. NEUBERGER J said that the court had a wide discretion when deciding
whether to award costs under CPR Pt 44 and in applications for summary judgment
for costs the failure to serve a schedule of costs was often a ground for
depriving a party of their costs or for curtailing a party's costs. Where there
was, however, merely a failure to serve a schedule of costs the question the
court should ask itself was whether there was any prejudice to the paying party.
The court should then consider firstly whether a brief adjournment was
appropriate for the parties to discuss the matter, secondly whether a detailed
assessment was appropriate or thirdly whether the court should stand over the
assessment of costs. It would not be right in the case of a mere failure to
comply, and in the absence of aggravating factors, to deprive a party of costs
altogether. The present case was one of mere failure to serve a schedule in time
and there did not seem to be any reason for depriving Mr Macdonald of his costs.
Costs were awarded on a standard basis. It would have been wrong for the matter
to be drawn out further by referring it back to the Deputy District Judge for
summary assessment or by sending it for detailed assessment, summary assessment
was therefore made in respect of the costs of the hearing below and of the
appeal.
--------------------------------------------------------------------------------
Appearances: John McLinden (Wilcox & Co) for Mr Macdonald; Nigel Burroughs
(Trowers & Hamlins) for the company. 