Summary Assessment of Costs – Be Prepared

The process of Summary Assessment has been amongst the profession since the inception of the CPR on 26 April 1999, and therefore should hold no real surprises to practitioners in its operation and the consequences of any failures to adhere to the Rules and Practice Direction surrounding it.

It is therefore with some surprise that, the writer having been made aware of the judgement in the matter of The Queen on the application of the Solicitors Regulation Authority -v- Imran [2015] EWHC 2572 (Admin), found that there were still parties who did not consider compliance with the Summary Assessment process to be of paramount importance to the proper recovery of their costs.

The matter originally arise out of the Respondent’s conviction under the Perjury Act 1911 and subsequent sentence to 2 month imprisonment, for falsifying details to endeavour to circumvent a Notice of Intention to Prosecute following his activation of a fixed speed camera. As a result of his conviction, the Respondent, a recently qualified solicitor at the time of his conviction and subsequent unsuccessful appeal, was referred to and charged by the Solicitor’s Regulation Authority (SRA) with failing to uphold the rule of law and proper administration of justice, and failing to act with integrity.

The matter came before the Solicitor’s Disciplinary Tribunal (SDT) and after a two day hearing, it was ruled that the Respondent should be suspended from practice for a period of 2 years.

The SRA appealed the decision on the basis that it was too lenient and should be substituted for a striking off order, and it was upon that hearing that the issues over the Summary Assessment of Costs were heard.

Hearing the appeal, Mr Justice Dove concluded that he was “…not satisfied, in short, that in this case there is evidence in the decision that the outcome that the tribunal reached was “clearly inappropriate”…”, that they had followed the proper procedures and given proper consideration to all of the relevant factors and therefore, in dismissing the appeal, was “…unprepared to reach the conclusion that this decision was clearly inappropriate and that therefore I should interfere with it.”

This conclusion, inevitably, led to an application from the Respondent’s Counsel, Mr Gregory Treverton-Jones QC, that the SRA pay the Respondent’s costs, from which flowed the following exchange between both Counsel and Mr Justice Dove

“…

1. MR TREVERTON-JONES: …To my embarrassment, there is no costs schedule produced by those instructing me so I would ask for a detailed assessment.

1. MR JUSTICE DOVE: Lord Justice Jackson would probably suggest that I assess them at zero.

1. MR TREVERTON-JONES: I do not know what he would suggest, but they will not be particularly large. They will certainly be a lot lower than the SRA. I would ask for a detailed assessment. I have nothing in writing to give you.

1. MR JUSTICE DOVE: Is there anything you want to say, Mr Williams?

1. MR WILLIAMS: Yes. First of all, the practical point that the rules are clear and well known. There has been no schedule served upon us, and consequently no notice other than by implication that an application would be made. Secondly, the appeal in my submission was properly brought in the public interest. The SRA is a public interest regulator. The profession supports it financially. These cases are important and this case falls into that category. In my submission it would be inhibitive that the SRA – – if they were discouraged from pursuing such appeals as this for the benefit of the public and the profession. There is that aspect to it. And, secondly (sic), the fact that these matters should be dealt with on the day by summary assessment, not putting the parties to the further costs of detailed assessment. That is the whole basis of the regime.

1. So I would ask my Lord to consider that the right order in this case is that each party should pay their own costs.

1. MR JUSTICE DOVE: Mr Treverton-Jones?

1. MR TREVERTON-JONES: I have nothing in response. Ordinarily, had there been a schedule of costs, I would submit that the ordinary rules should apply and that the costs should follow the event in this court which is well known on these appeals. Therefore, I invite you to order that the SRA pay Mr Imran’s costs, those costs to be the subject of detailed assessment.

…”

Having heard the submissions of both parties, Mr Justice Dove concluded

“…

1. MR JUSTICE DOVE: I am not willing to order detailed assessment in this case because it seems to me that is simply going to add further to the costs of the parties. I also take the view there is some force in what Mr Williams says about public interest in these appeals being heard. However it does seem to me that the respondent having been successful, I should assess costs. And I am going to do so in a notional figure of £5,000. That is the best I can do. Adding to the costs of the proceedings by ordering detailed assessment seems to me to be quite disproportionate. “

From both the exchange and the ruling, it can be clearly seen that consideration (and indeed thinly veiled encouragement from the Appellant) was given to disallowing the totality of the costs, even though the Respondent had successfully resisted the Appeal, a situation in which (as correctly pointed out by his Counsel) would in all normal circumstances usually lead to costs following the event.

However the failure to provide a costs schedule by the instructing solicitor, either timeously or at all, led to the Summary Assessment process being undertaken in an extremely arbitrary manner, arriving at a token figure which, whilst certainly an improvement on the potential total disallowance, was likely to be considerably less that the Respondent had expended in defending his position.

This matter, therefore, clearly highlights the importance of ensuring that, in all matters where a Summary Assessment is plausible, however unlikely it may appear, a compliant schedule of costs is served in good time beforehand and advocates are suitably instructed so as to assist the Court in assessing the same.

The writer appreciates that this may not always be the priority to busy practitioners, especially when matters are approaching hearings where client’s expectations need to be managed and opponent’s persist in leaving matters to the last minute, however why not contact us and see how we can assist you?