The claimant was successful in a claim for damages for unlawful detention by the defendant Secretary of State for the Home Department. Having conducted a detailed assessment, a master, sitting as a costs judge, assessed the claimant’s costs at £25,338.75 on a bill of costs of approximately £88,000; and made no order as to costs in respect of the assessment process itself. The claimant was granted permission to appeal both of those aspects of the master’s order. The Secretary of State then made a Part 36 offer in relation to part of the appeal and filed an application pursuant to CPR r 16(5) seeking the court’s determination of the costs of the appeal. The remainder of the appeal having been abandoned, the issues which came before the judge were the costs of the appeal, directions to determine the quantum of those costs and the costs of the application which had been issued by the Secretary of State. The judge made an order providing, inter alia, that the claimant pay the Secretary of State’s costs of the appeal from the date of the Part 36 offer; the Secretary of State pay the claimant’s costs of the appeal prior to that date; and there be no order as to costs in relation to the Secretary of State’s CPR r 16(5) application. Paragraph 6 of the judge’s order provided for summary assessment of those costs if not agreed, with the assessment to be conducted by a master of the Senior Courts Costs Office. The claimant appealed, contending, inter alia, that on a true construction of CPR Pt 44, there had been no power to make an order for a summary assessment of costs to be conducted by a master.
On the claimant’s appeal —
Held, appeal allowed. On a true construction, a “summary assessment”, as defined by the unambiguous language in CPR r 44.1, was by its very nature an assessment conducted by the judge who had heard the case. That was to be contrasted with a detailed assessment which was defined in a different way and was a different type of procedure which was undertaken by a costs officer. Those terms were then used in CPR r 44.6(1) which provide that the court “may either— (a) make a summary assessment; or (b) order detailed assessment by a costs officer …”. It was not the case that the use of the word “may” before those two alternatives created a case management discretion so that the court had power to order a summary assessment to be conducted by a costs officer. Rather, the court was given two alternatives and either had itself to “make” a summary assessment or “order” a detailed assessment pursuant to Part 47. That approach to rule 44.6(1) was reinforced by the terms of the rule as a whole and was consistent with the terms of Practice Direction 44. Accordingly, in the present case, it had not been open to the judge to order that a summary assessment be conducted by the master, and the summary assessment would be remitted to the judge for him to carry out at a convenient time (paras 20, 21, 27, 28, 34–44, 46, 47).
Robin Dunne and Tiki Emezie (instructed by Dylan Conrad Kreolle Solicitors) for the claimant.
Paul Joseph (instructed by Plexus Law) for the Secretary of State.