The usual rule in many cases is that costs are summarily assessed by the judge at the conclusion of the trial or hearing. Often, however, proceedings run late and there is not time to give an ex tempore judgment, let alone deal with the issue of costs. Likewise, summary assessment may not be possible where there has been some failure to provide relevant information to allow it to take place.
Judges adopt a range of approaches as to what to do in these situations. Many direct that any issue in relation to costs are dealt with by way of written submissions. The Commercial Court has recently provided some guidance to the practitioner facing such a routine situation.
HHJ Mackie QC, sitting as a High Court Judge, gave judgement in the case of John Forster Emmott v Michael Wilson & Partners Ltd (2013) (unreported) on 28 October 2013. The Defendant had lost the substantive action and costs were ordered against it. It was not possible to summarily asses these costs as the Claimant had not provided a Schedule. The trial judge directed that costs be assessed on paper and invited the Parties to provide written submissions in respect of the same and subsequently assessed costs at £48,000 down from £67,500 claimed. The Defendant was unhappy with this assessment and requested that the matter be sent for detailed assessment. This was the first time the suggestion of a detailed assessment had been raised.
At a further hearing was ordered where the Defendant submitted that a detailed assessment should have taken place; that the summary assessment should be reviewed; and that there should be no order as to costs of the subsequent written submissions.
The Court refused the application for a detailed assessment. It held that should the Defendant have wanted to argue for a detailed assessment, it should have appealed the judge’s original decision to direct a summary assessment on paper. It was further held that a summary assessment need not be detailed and that the summary assessment in this case was premised upon the same information that the court would have had in a more routine case. As to the question of the costs of the assessment, the Court held it was within its discretion to award the Claimant some costs, taking into account the facts of the case.
The point for the practitioner may well be that one should be aware that a summary assessment of costs necessarily carries with it a substantial risk of generating a result which one may feel to have been unjust. This is simply a risk of litigation caused by the need for expedition in the litigation system. Should a party wish to apply for costs to be assessed by way of a detailed assessment, it must have a good reason for this request, make the request at the conclusion of the substantive hearing, and be mindful of the potential risk of additional costs, such as which are unlikely to be generated in most forms of summary assessment.