Khaira & Ors v Shergill & Ors

This is an appeal against the Order of Master Simons dated 10 September 2015. By that Order, he dismissed the application of the First to Fourth Defendants for an order setting aside a notice of commencement of detailed assessment which had been served by the Claimants. He also ordered the Defendants to serve Points of Dispute by 15 October 2015 and to pay the costs of that application. He refused the Defendants permission to appeal against his Order.

The Defendants applied to the High Court for permission to appeal against the Order of Master Simons, and on 5 October 2015 Globe J granted a stay of that Order pending determination of that appeal or further Order. The appeal was then transferred from the Queen’s Bench Division to the Chancery Division. On 30 November 2015 Asplin J granted the Defendants permission to appeal. That is how the matter comes before me.

Although this case has a long and complex history, it is not necessary to say much about it for purposes of the present appeal. The litigation arises out of divisions which have broken out within a Sikh sect associated with three Gurdwaras (Sikh temples) in Bradford, Birmingham and High Wycombe. On 25 June 2008, proceedings were issued in the High Court. On 12 September 2011, His Honour Judge David Cooke, sitting as a judge of the High Court in the Birmingham District Registry, made orders (a) granting the Claimants permission to amend their particulars of claim and (b) dismissing the application of the Defendants to strike out the claim on the basis that it raised issues which were said to be unjusticiable (see [2011] EWHC 2442 (Ch)). The Defendants appealed to the Court of Appeal on the issue of justiciability (with the permission of the Judge) and on the grant of permission to amend (with the permission of the Court of Appeal), and the Court of Appeal allowed their appeal (see [2012] PTSR 1697). The Claimants appealed to the Supreme Court, which unanimously allowed their appeal and ruled that the issues in the case should all go to trial (see [2015] AC 359).

At the heart of the present appeal is the Order that was made by the Supreme Court following consideration of the parties’ submissions on costs. That Order is dated 28 July 2014, and so far as material to the present appeal it ordered (at paragraph 1):

“The [Defendants] pay the [Claimants’] costs in the Supreme Court and the Court of Appeal, the amount of those costs to be assessed on the standard basis if not agreed between the parties”.

In a nutshell, the issues before me are as follows:

It seems to me that the points raised by the first and second issues are of general importance. This is because I strongly suspect that paragraph 1 of the Order of the Supreme Court dated 28 July 2014 is in a form that is either standard or at least has been used in a number of other cases. It is also substantially in the same form as has been made by the Court of Appeal in a number of appeals to that Court, as I am able to say from my own experience of such appeals.

Further, such Orders have important consequences. The substantive issues in the present case transcend monetary values. However, many cases are about or are substantially about money. Moreover, the costs of litigation are frequently not only substantial but also greater than the sums in issue, possibly by a large amount. Even in the present case, where the Supreme Court made an order for an interim payment on account of costs in the sum of £150,000, the Claimants are seeking to recover an additional £83,343.92 in respect of the costs incurred in the Court of Appeal alone. It will make a significant difference to the litigants in many cases whether the receiving party is entitled to proceed to detailed assessment of the appeal costs immediately following conclusion of an appeal or has to wait until the conclusion of the trial.

In these circumstances, it might be thought surprising that these points have not already been the subject of determination. However, the researches of Mr McDonnell, who appeared for the Defendants, and Mr Mallalieu, who appeared for the Claimants, have unearthed only the cases discussed below, in which the first point at least does not appear to have been decided.

If and to the extent that there is a genuine dispute as to the meaning and effect of the Order of any court, and maybe in particular an appellate court, it might be thought that the court which made the Order would be best placed to decide that issue. If another court is given the task of determining that dispute, there must be at least some risk that the other court will get it wrong. These considerations may be brought into an especially sharp focus where the court which made the Order is the highest court in the land, and the court which is tasked with interpreting that Order is a costs judge, or, on appeal, a Deputy High Court Judge. However, neither side before me has suggested that the Supreme Court should be asked whether it intended the result for which the Claimants contend or the result for which the Defendants contend.

One way of avoiding such disputes in the future would be for the receiving party to follow the counsel of prudence suggested (in relation to the regime under the Rules of the Supreme Court) by Sir Mervyn Davies in Harrod (Buenos Aires) Ltd (10 March 1993): “Where there is a doubt as to whether or not an order results in the ‘conclusion of the cause or matter’ the wise course is to ask the court (whether the High Court or the Court of Appeal) for consent to proceed to taxation forthwith”. From the extracts of the transcript of the argument concerning costs which are quoted in one of the cases to which I was referred, that appears to have been what happened in Morris v Bank of America National Trust [2001] 1 All ER 954. According to those extracts, Leading Counsel for the receiving party sought an order for “an immediate detailed assessment” and for payment “forthwith”. This was granted on the footing explained by Morritt LJ that: “It is certainly the practice, as I understand it, in this court that where the appeal is a discrete matter the costs are ordered there and then and do not wait for the conclusion of the proceedings as a whole. The practice precedes the new rules”. So far as concerns the present case, however, it is unclear from those extracts whether it was necessary for Leading Counsel to make the application which he made, or whether the Order of the Court of Appeal would in any event have had the effect of ordering costs “there and then”.

As was also the case before Master Simons, much of the argument before me revolved around the provisions of the Civil Procedure Rules. Indeed, the first plank in the Defendants’ argument on appeal is that Master Simons misdirected himself by failing properly to interpret and apply Rule 47.1 of the Civil Procedure Rules and the associated Practice Direction 47.

CPR 47.1 provides:

“Time when detailed assessment may be carried out

47.1

The general rule is that the costs of any proceedings or any part of the proceedings are not to be assessed by the detailed procedure until the conclusion of the proceedings, but the court may order them to be assessed immediately.

(Practice Direction 47 gives further guidance about when proceedings are concluded for the purpose of this rule.)”

Practice Direction 47 provides:

“Time when assessment may be carried out: rule 47.1

1.1

For the purposes of rule 47.1, proceedings are concluded when the court has finally determined the matters in issue in the claim, whether or not there is an appeal, or made an award of provisional damages under Part 41.

1.2

The court may order or the parties may agree in writing that, although the proceedings are continuing, they will nevertheless be treated as concluded.

1.3

A party who is served with a notice of commencement (see paragraph 5.2 below) may apply to a costs judge or a District Judge to determine whether the party who served it is entitled to commence detailed assessment proceedings. On hearing such an application the orders which the court may make include: an order allowing the detailed assessment proceedings to continue, or an order setting aside the notice of commencement.

1.4

A costs judge or a District Judge may make an order allowing detailed assessment proceedings to be commenced where there is no realistic prospect of the claim continuing.”

Mr McDonnell contended that, in accordance with these provisions:

Mr Mallalieu responded by relying on the same arguments as Master Simons had accepted:

The problem with this approach is that, in accordance with CPR 2.1, the Civil Procedure Rules apply (among things, and with immaterial exceptions) to the High Court and the Court of Appeal. However, they do not apply to the Supreme Court, and the Order with which I am concerned is an Order of the Supreme Court. While the arguments concerning CPR 47.1 and Practice Direction 47 would be relevant to an Order in similar terms made by the Court of Appeal, I am unable to see that they are directly applicable to the material Order in the present case. On the other hand, they may be of some assistance, not least because it might be thought surprising if the same form of Order relating to costs may bear two different meanings, depending upon whether the Order is made by the Supreme Court or by the Court of Appeal.

The Rules which apply to civil (and criminal) appeals to the Supreme Court are the Supreme Court Rules 2009. Fees and costs are dealt with in Part 7 of those Rules, which is mercifully brief. The Rules contain no wording which is equivalent to CPR 47.1 or Practice Direction 47. They do, however, include the following provisions:

“Orders for costs

46.—(1) The Court may make such orders as it considers just in respect of the costs of any appeal, application for permission to appeal, or other application to or proceeding before the Court.

It seems clear from these (and other) provisions in the Supreme Court Rules that the Supreme Court has its own costs regime. Moreover, even without guidance from authority, I would interpret these Rules as being based on the premise that, or as having the effect that, an appeal before the Supreme Court is treated as separate “proceedings” for the purposes of costs. In particular, the reference to “proceedings” in Rule 46(2) must be a reference to the proceedings before the Supreme Court, and not to the claim which is progressing towards trial. As discussed below, while none of the authorities to which I have been referred discuss orders of the Supreme Court, nevertheless the analysis which they contain accords with that approach.

I also interpret Rule 48(1) as having the effect that, as a general rule, and unless some different order is sought and obtained, the receiving party is not only entitled to proceed to assessment as soon as an order for costs is made but is also required to proceed to assessment within 3 months of such an order being made. This seems to me to be consistent with the overall tenor of the Supreme Court Rules. In accordance with Rule 2(2), the overriding objective of the Rules is to secure that the Supreme Court is accessible, fair and efficient; and by Rule 2(3) the Supreme Court is required to “interpret and apply these Rules with a view to securing that the Court is accessible, fair and efficient and that unnecessary disputes over procedural matters are discouraged”. In addition, the Rules contain a streamlined procedure for assessment. It seems to me that a default position of allowing the receiving party to proceed with assessment immediately, instead of having to wait until the conclusion of the substantive claim, is likely better to accord with those objectives and that procedure.

I do not interpret the Rules as having the effect that the costs of hearings in the lower courts should be assessed in the Supreme Court. On that footing, the full breadth of the above analysis only applies to the costs before the Supreme Court.

However, where, as has happened in the present case, the Supreme Court has made a single Order in relation to the costs in the Court of Appeal and the costs in the Supreme Court, I do not consider that Order can have the effect that the receiving party is entitled to proceed with immediate assessment of one lot of costs but not the other. Accordingly, in my judgment, the true meaning and effect of the Order made by the Supreme Court dated 28 July 2014 is that the Claimants are entitled to immediate detailed assessment of all of those costs.

After I had circulated this judgment in draft, I received an email from Mr McDonnell which made clear that he was not seeking to suggest that there should be any change to the substance of the judgment. However, he pointed out that it had formed no part of the case of either side that the Civil Procedure Rules did not apply to Supreme Court, and are therefore not directly applicable to the Order of the Supreme Court dated 28 July 2014, and that I therefore had heard no submissions on these points from the parties. He suggested that, in these circumstances, it would be appropriate for the judgment to address the following provisions:

Mr Mallalieu responded by an email stating that he had no comment to make unless I wished him to respond. He stated: “Given that the appeal was, in any event, dismissed on every ground even absent the Supreme Court point I do not see much to be added at this stage”.

I did not invite further submissions concerning the Supreme Court Rules before circulating my judgment in draft for two main reasons. First, I had come to a clear view both about the applicability of the CPR to the Supreme Court and about the true meaning and effect of the costs Order made by the Supreme Court in the present case, and I did not consider that any further submissions would assist on either of those aspects. Second, my views on those points did not affect the outcome, because, as set out below, I would have come to the same conclusion on the basis of the arguments based on the CPR that the parties did address to me. Nevertheless, I consider that it was fair and reasonable for Mr McDonnell to raise these points. I am grateful to him for that. I also make no criticism of Mr Mallalieu’s terse response.

These further points do not cause me to alter or qualify my initial view. I do not regard the interpretation of the costs Order in the present case as a “procedural question” which is not dealt with by the Supreme Court Rules, or as giving rise to a situation which is not covered by those Rules. Accordingly, the prospect of applying the CPR by analogy does not, in my judgment, arise. If it did arise, however, I consider the result would be as analysed below.

If that is right, it is unnecessary for me to address all the arguments which the parties made with regard to the first and second issues identified above. However, I shall do so because the points were fully argued and may be of wider interest, and in case this appeal goes further.

In Hawksford Trustees Jersey Ltd v Stella Global UK Ltd and another (No 2) [2012] EWCA Civ 987, [2012] 1 WLR 3581the Court of Appeal held that a trial and an appeal from a decision made at that trial were different “proceedings” for the purposes of section 29 of the Access to Justice Act 1999, which provides: “Where in any proceedings a costs order is made in favour of any party who has taken out an insurance policy against the risk of incurring a liability in those proceedings, the costs payable to him may, subject in the case of court proceedings to rules of court, include costs in respect of the premium of the policy”.

The claimants succeeded on their claim at first instance, and the defendants appealed. Shortly before the hearing of the appeal, the claimants took out after the event (ATE) insurance to cover the risk of incurring a liability to pay the defendants’ costs of the action, and of the appeal if the appeal was allowed. The Court of Appeal dismissed the defendants’ appeal and ordered them to pay the claimants’ costs of the appeal. The defendants applied to vary that costs order on the ground that the court had lacked jurisdiction under section 29 to order the defendants to pay as part of the claimants’ costs of the appeal that part of the insurance premium which related to the costs of the claim up to and including the trial. The Court of Appeal allowed the application (by a majority), reasoning that the claimants had taken out ATE insurance against the risk of a liability in the trial proceedings but the costs order in favour of the claimants had been made in the appeal proceedings; and that, accordingly, under section 29 the costs payable to the claimants under the Court of Appeal’s order for costs could not include costs in respect of that part of the premium of the ATE insurance which represented cover for their potential liability in respect of the defendants' costs of the trial.

Although Patten LJ dissented in the result, it appears to me that he did not take a different view to the majority as to whether an appeal is treated as separate proceedings for the purposes of costs. In any event, it is the reasoning of the majority which matters most.

The defendants argued that the distinction between the trial of a claim and an appeal is reflected in the case law and the provisions of the CPR concerning costs, and sought to argue that the same distinction should be recognised when interpreting section 29. Patten LJ rejected the second part of that argument, but he appears not to have rejected the first part of it. So far as the first part of that argument is concerned, Patten LJ’s judgment includes the following:

“22

A distinction between the trial of a claim and any subsequent appeal is also said to be well established in the context of the rules relating to costs. Under CPR rr 47.1 and 47.2 , for example, the general rule is that the detailed assessment of the costs of any proceedings or any part of the proceedings are not to commence until the conclusion of the proceedings but detailed assessment is not stayed pending an appeal unless the court orders otherwise. This is said to illustrate that for the purposes of costs an appeal is treated as a separate proceeding from the case below. Further examples can be found in CPR r 36.3(2) and (4) and in CPR r 25.15 .

23

Mr Stewart also referred to the decision of this court in Wright v Bennett [1948] 1 KB 601 which concerned the cost of providing junior counsel with the documents in a case which came on appeal from the High Court. At the trial the junior had held only a noting brief but was then instructed to act as junior counsel to Mr Devlin QC who had appeared alone as a junior at the trial before taking silk. The taxing master had disallowed the costs of the documents supplied as part of the noting brief but an attempt was made to recover them as part of the costs of instructing junior counsel for the appeal.

24

It was conceded that both junior and leading counsel needed to be supplied with the documents for the purposes of the appeal and the taxing master allowed them as part of the costs of the appeal. On appeal to this court the costs were disallowed because they had been incurred as part of the disbursements in connection with the noting brief in the court below. Following the earlier decision in Masson Templier & Co v De Fries [1910] 1 KB 535 , it was held that since the documents came into existence for the purposes of the trial, no new disbursement was necessary to enable them to be used in the Court of Appeal. Somervell LJ [1948] 1 KB 601 , 606 (referring to the decision in the Masson Templier case) said:

“That decision seems to me to be plain, and, though I do not think that it contains an express reference to Ord 65, r 1, of the Rules of the Supreme Court , it appears to me to follow and construe the words of that rule, which are: ‘Subject to the provisions of the Act and these Rules, the costs of and incident to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the court or judge.’ Those words ‘of and incident to’ appear in section 50(1) of the Supreme Court of Judicature (Consolidation) Act 1925 , except that the words there are ‘costs of and incidental to all proceedings’. The wording of that rule, coupled with the decision to which I have referred, shows that one has to treat proceedings below as a separate proceeding, for this purpose, from the proceedings here. It seems to me that Mr Salmon has a strong case for saying, applying that decision, that these costs were incurred in respect of the proceeding below and, therefore, cannot be recovered under the order of the Court of Appeal as to costs.”

…

34

I accept, of course, that [section 29] requires the costs order to be made in the proceedings in which the potential liability to costs arises. But there is nothing in the word “proceedings” which prevents it, as a matter of language, from being used in a composite way to describe the claim in all its stages including any appeal. The fact that an appeal is treated for the purposes of some of the costs rules as separate proceedings is not conclusive of the matter. It simply indicates that in a particular context the word may be given a narrower meaning.”

So far as concerns the first part of the defendants’ argument, Rix LJ set the stage as follows:

“41

It appears from the words “in those proceedings” (emphasis added) that section 29 requires that the “costs order” has to be made in the same proceedings as the proceedings in which a costs liability may arise, the risk of incurring which has been insured against. Three questions have therefore arisen on the facts of our case: (1) For these purposes are a trial and an appeal from that trial the same proceedings or different proceedings? (2) Is the risk that the incidence of costs at trial might be changed by the costs order of the appeal court a risk of incurring a liability in the appeal proceedings or a risk of incurring a liability in the trial proceedings? (3) In that connection, what is it that must occur in the same proceedings: is it the risk of incurring a costs liability, or is it the costs liability, the risk of incurring which has been insured against? The second and third questions disappear, and do not need to be asked, if the answer to the first question is that trial and appeal are both part of the same proceedings. Patten LJ has concluded that they are and that, subject to the assessment of the costs judge as to reasonableness and quantum, the respondent is entitled to claim the disputed premium as part of its costs.”

Rix LJ then reasoned as follows (emphasis added):

“42

In my judgment, it is possible to conceive that “proceedings” could either embrace both trial and appeal or else be interpreted as referring separately to trial and appeal. Although it would be perfectly natural to think of an appeal as arising from and being part of the same proceedings as the trial from which the appeal is taken, it is nevertheless clear that trial and appeal have been treated as separate proceedings for the purposes of costs.

43

In this connection I refer to Masson Templier & Co v De Fries [1910] 1 KB 535 and to Wright v Bennett [1948] 1 KB 601 discussed by Patten LJ above. In the Masson Templier case, where there were appeals from the county court to the Divisional Court and thence to the Court of Appeal, Vaughan Williams LJ said [1910] 1 KB 535 , 538–539: “But, as I understand, according to the practice on taxation, no disbursements are allowed but such as have been actually made for the purposes of the proceeding in respect of which the order for costs was made.” Farwell LJ said, at p 539: “I understand it to be the settled practice in the taxing office not to allow as costs of a proceeding costs of documents used in a prior proceeding.” In Wright v Bennett [1948] 1 KB 601 , 605 Somervell LJ cited these passages, commenting that “the use of the word ‘proceeding’ … in its context clearly indicates that the court were dealing with two separate and distinct proceedings. The hearing before the Divisional Court was a proceeding and the appeal to this court was a proceeding”. In Wright v Bennett this court applied the rationale of the Masson Templier case to the words of section 50(1) of the Supreme Court of Judicature (Consolidation) Act 1925 (“costs of and incidental to all proceedings”) and to RSC Ord 65, r 1 (“Subject to the provisions of the Act and these Rules, the costs of and incident to all proceedings … shall be in the discretion of the court or judge”). Somervell LJ said, at p 606: “The wording of that rule, coupled with the decision to which I have referred, shows that one has to treat proceedings below as a separate proceeding, for this purpose, from the proceedings here.”

44

In the area of costs, therefore, there is an entirely legitimate reason for thinking that the same litigation, when conducted at trial and on appeal, is to be regarded as split between different proceedings. Moreover, there is an echo in section 29’s “Where in any proceedings a costs order is made … a liability in those proceedings” of the language with which the point as to the meaning of “proceedings” was dealt with in those earlier cases: eg in Vaughan Williams LJ's words “for the purposes of the proceeding in respect of which the order for costs was made”.

45

This distinction, between separate proceedings in different courts in the same litigation, is still recognised and is written into current rules. Patten LJ has given instances of this distinction above. Thus CPR r 47.1 provides: “The general rule is that the costs of any proceedings or any part of the proceedings are not to be assessed by the detailed procedure until the conclusion of the proceedings”; while CPR r 47.2 states: “Detailed assessment is not stayed pending an appeal unless the court so orders.” CPR r 36.3(2) distinguishes between a time before “the commencement of proceedings” and “appeal proceedings”; and CPR r 36.3(4) provides: “A Part 36 offer shall have the consequences set out in this section only in relation to the costs of the proceedings in respect of which it is made, and not in relation to the costs of any appeal from the final decision in those proceedings.”

46

Separate orders may be made for security for the costs of an appeal: CPR r 25.15.

…

58

In sum, the broad interpretation of the word “proceedings” advocated by the respondent … runs counter to a well-known distinction, made in the context of costs liability, between costs of trial and costs of appeal where trial and appeal are spoken of as different proceedings … In my judgment, the word “proceedings” in section 29 should be given its traditional meaning which distinguishes between proceedings at trial and on appeal (my first question).”

Etherton LJ said at [60] that “I agree with all the reasoning of Rix LJ”. So far as material to the issues now before me, Etherton LJ continued as follows:

“61

We are concerned with the meaning of the phrases “in any proceedings” and “in those proceedings” in section 29 of the Access to Justice Act 1999 . The word “proceedings”, in the context of court proceedings, is a word of uncertain meaning. It can sometimes mean part of court proceedings, such as being limited to proceedings at first instance or to appeal proceedings, or it can mean the entire course of proceedings from inception to final conclusion. In Wright v Bennett [1948] 1 KB 601, for example, the Court of Appeal held that, for the purpose of applying the costs provisions formerly in Ord 65, r 1 of the Rules of the Supreme Court , the proceedings in the Court of Appeal and below were to be treated separately. The issue in the case was whether the costs of certain documents used at first instance, but disallowed by the taxing master, and then used again on appeal could be allowed as costs of the appeal. Somervell LJ, with whom the other members of the Court of Appeal agreed, said, at p 606 [citing the same passage as Patten LJ had cited at [24 of his judgment]…

In my view, it is clear from these judgments (1) that cases which pre-dated the coming into force of the CPR treated, and were regarded by the Court of Appeal in that case as treating, the proceedings progressing towards trial on the one hand and an appeal on the other hand as separate proceedings for the purposes of costs and (2) that the Court of Appeal in that case considered that this separation or distinction between proceedings in different courts in the same litigation is still recognised and is written into the CPR, including and in particular in CPR 47.1 and in Practice Direction 47. Those conclusions are articulated most clearly, but not exclusively, in the passages in the judgment of Rix LJ which I have emphasised above.

I also consider that those conclusions form part of the essential reasoning of the majority, because they formed an important element of their determination of the correct construction of section 29, which was the point that the Court of Appeal had to decide in that case. Even if that is wrong, this detailed discussion in careful reserved judgments is highly persuasive.

These holdings are entirely consonant with, and provide additional grounds for, my ruling as to the true meaning and effect of the Order made by the Supreme Court dated 28 July 2014 in the present case, although I have reached that result independently of these judgments. Nor are there any grounds for doubting the validity of these holdings on the basis of other cases.

In Landau v The Big Bus Company and Anr (31 October 2014), Master Haworth had to determine a question relating to the rules on Qualified One Way Costs Shifting which were introduced by amendment to the Civil Procedure Rules on 1 April 2013. At [24] he said:

“In my judgment, all that can be derived from the Hawksford case is that “proceedings” must be decided in the context in which the words appear. It is clear from the decision that “proceedings” can have different meanings in the context of different situations. To my mind it cannot be assumed that the word “proceedings” can or should in every case mean separate proceedings by way of trial and by way of an appeal.”

Properly understood, there is no tension between those observations and the views which I have expressed. In saying “all that can be derived from the Hawksford case” Master Haworth was not addressing the points which I am called upon to decide and still less expressing disagreement with the conclusions which I have reached. Instead, he was making the point that the reasoning of the Court of Appeal did not purport to resolve the issue which he was considering (viz. “whether an appeal constitutes separate “proceedings” in the context of Section 2 Part 44 CPR” – see [19] of his judgment). Moreover, that part of his judgment concerned the “secondary case” of the Defendants in front of him, and it was not essential to his decision because he had already ruled in their favour on their “primary case”.

In Crystal Decisions (UK) Limited, Business Objects Japan K.K. (A Japanese Company), Business Objects Americas (A Delaware Corporation) v Vedatech Corporation, Mani Subramanian [2007] EWHC 1062 (Ch), Patten J (as he then was) had to deal with a number of matters. One of them was an appeal against an order of Master Campbell. This concerned the assessment of the costs of the Defendants’ unsuccessful applications to the Court of Appeal for permission to appeal against various orders of Pumfrey J relating to the Claimants' application for an anti-suit injunction. The Court of Appeal ordered the Defendants to pay the costs of those applications but did not direct that there should be an immediate assessment of those costs. Before the costs judge the Claimants sought an immediate assessment of those costs, and the Defendants applied to have the detailed assessment proceedings struck out as premature because the proceedings had not been concluded for the purposes of CPR 47.1.

Master Campbell held that finality had been reached, because the order of Pumfrey J under appeal had in terms directed an immediate assessment of costs, and the Court of Appeal had simply refused permission to appeal against that order. Master Campbell went on to say that if he was wrong about that, then he would make an order under section 28 (1)(4)(b) of what was then the Costs Practice Direction and allow the detailed assessment procedure to continue. The Defendants submitted that Master Campbell was wrong on both points. Patten J agreed.

Patten J said at [77]:

“It seems to me that the correct starting point is to look at the terms of the costs order made by the Court of Appeal. That was not an order for the immediate assessment of costs and the fact that it dealt with an application for permission to appeal from an order which did include a direction for immediate assessment, does not alter the terms of the Court of Appeal's own order. The Master approached the matter on the basis that the Court of Appeal's order brought to an end one aspect of the proceedings: i.e. the issue about the grant of the anti-suit injunction. This is also correct, but the purpose of CPR 47.1 is to lay down a general rule that the costs of part of the proceedings are not to be assessed until the conclusion of the proceedings as a whole unless the Court orders them to be assessed immediately, which the Court of Appeal did not. The order made by the Court of Appeal is therefore governed by this general rule and although it would have been open to the Court of Appeal to order an immediate assessment (see e.g. Morris v Bank of America [2000] 1 AER 954 ) it did not do so. Master Campbell’s decision on this point effectively re-writes CPR 47.1 and cannot stand.”

Patten J said at [78]:

“His alternative basis for allowing the detailed assessment to proceed is also in my judgment flawed. He gives no reasons at all for exercising his discretion in favour of the Claimants and ignores the fact that the Court of Appeal either was not asked to or did not choose to order an immediate assessment. That seems to me to be a strong factor against exercising the discretion in the way that Master Campbell did and his order will be set aside. I should also add (although this is not strictly necessary for my decision) that I am far from persuaded that s.28.1(4) in fact gives to the costs judge power to order the continuation of a detailed assessment in circumstances where the Court making the original order for costs has not done so. The power contained in s.28.1(4)(b) to allow the assessment to continue seems to me to be consequential and contingent upon the power contained in s.28.1(4)(a) for the costs judge to decide whether the party serving a notice of commencement is entitled to do so. The reference to being entitled to do so must be a reference to the terms of CPR 47.1 and calls for a judicial determination of whether under that rule the party in question is entitled to proceed. It would be odd for the costs judge to be entitled to allow the assessment to continue notwithstanding a ruling that CPR 47.1 did not justify an immediate assessment and I do not consider that s.28.1(4)(b) conferred on the costs judge any such dispensing power. The only Court entitled to permit a deviation from the general rule is the Court making the costs order. If that power is not exercised, the costs judge must apply the general rule. The second appeal will therefore be allowed and I shall direct the costs awarded by the Court of Appeal to be assessed as part of the costs of the action …”

In GB Gas Holdings Ltd v Accenture (UK) Ltd and Others [2010] EWHC 2928 (Comm), [2011] 1 Costs L.O. 64, Hamblen J (as he then was) had to consider whether it was appropriate to order the immediate assessment of (a) the costs of the trial of a preliminary issue (which he decided not to order) and (b) the costs of the appeal against the decision on the trial of the preliminary issue (which he decided that he would order because it involved discrete issues). Having referred to the default position under CPR 47.1 and explained why he declined to order immediate assessment of the costs of the trial of the preliminary issue, Hamblen J said:

“The same considerations do not however apply to the appeal costs. They involve no particular disentanglement between preliminary issues and main trial costs. They themselves are discrete costs relating to the appeal and therefore any assessment, if there is to be one, should not be either particularly lengthy, costly or disruptive. However, the defendants submit that I have no jurisdiction so to order, since the costs order was made by the Court of Appeal and the Court of Appeal did not order immediate assessment, and it appears that it was not asked to do so.

I accept that the usual practice would be for a party to ask the Court of Appeal to order immediate assessment of costs if that is what it wishes to have done. I also accept that the claimants did not do so in this case and that, in those circumstances, the effect of the order is, in the light of CPR 47.1, that the costs as ordered by the Court of Appeal, as matters stand, will not be assessed until the conclusion of proceedings. But the court may order them to be assessed immediately. In my judgment, that is an order which this court can make. This court has the conduct of the proceedings generally. It has before it a specific issue of whether it is appropriate for there to be an immediate assessment of costs. Those costs include as part of the costs of the proceedings the appeal costs. I am therefore satisfied that I do have jurisdiction to order immediate assessment of those costs and, because they are discrete costs and because they involve no great issue of disentanglement, I accept that it would be appropriate to order immediate assessment of the appeal costs.”

It appears from these passages that both Patten J and Hamblen J considered that, in light of CPR 47.1, and in the absence of a specific order for immediate assessment, an order for costs made by an appellate court does not confer any entitlement to immediate assessment on the receiving party. In the event, that did not affect the outcome before Hamblen J, because he held that he had jurisdiction to order immediate assessment even where such an order had not been made by the Court of Appeal. However, it did affect the outcome before Patten J, because he considered that there was no basis upon which it was proper for Master Campbell to have exercised any discretion to allow immediate assessment to proceed when the Court of Appeal either had not been asked to or had not chosen to order an immediate assessment. Patten J also doubted, but did not need to decide, whether there is any jurisdiction to allow an immediate assessment to proceed where the Court of Appeal has not ordered it.

Whether the proceedings progressing towards trial on the one hand and an appeal on the other hand are separate proceedings for the purposes of costs and, in particular, CPR 47.1 does not appear to have been argued before either Patten J or Hamblen J. Further, their decisions were made without the benefit of the judgments of the Court of Appeal in the Hawksford case (to which Patten LJ, as he had by then become, was a party), which must now take precedence.

The like points apply to the decision of Master Campbell in Bottin (International) Investments Ltd v Venson Group plc [2005] EWHC 90005 (Costs). In that case, Master Campbell disagreed with the stance set out in correspondence from the receiving party’s solicitors to the effect that an appeal to the Court of Appeal constitutes separate proceedings for the purposes of CPR 47.1, such that their clients were entitled to an immediate detailed assessment once the appeal was concluded. It appears that this stance had been adopted on the premise that the order made by the Court of Appeal in that case was a “forthwith” order, and that once it became apparent that the order was not in those terms the receiving party chose to pursue the argument that it was entitled to immediate assessment solely on the basis that the Court could make a fresh Order allowing the detailed assessment proceedings to go forward. Master Campbell held that an Order of the Court of Appeal “does not confer a right to immediate assessment unless it provides for the costs to be assessed and paid forthwith” ([32]) and that although the paying party had accepted he had jurisdiction to order that detailed assessment proceedings should be permitted to be continued under what was then section 28.1(4)(a) of the Costs Practice Direction he ought not to exercise that jurisdiction on the facts of that case.

For the reasons given above, I do not consider that CPR 47.1 is germane to the present appeal.

If it is, I do not consider that Mr McDonnell is right in submitting that CPR 47.1 and Practice Direction 47 contain a self-contained code which has the meaning and effect for which he contends, and that the judgments of the Court of Appeal in the Hawksford case are irrelevant in circumstances where that code applies. On the contrary, those provisions of the CPR costs regime cannot be considered in isolation from the traditional meaning of “proceedings” for costs purposes (which recognises a separation between trials and appeals for those purposes); and those provisions have been interpreted by the Court of Appeal, in a manner which is binding on me or at least highly persuasive, as recognising and preserving that separation.

I therefore accept the first of Mr Mallalieu’s submissions summarised in paragraph 15 above.

Further, if and to the extent that CPR 47.1 is in point, and in accordance with the substance of the reasoning of Master Simons, I accept that on the proper interpretation of CPR 47.1 the relevant “proceedings” were brought to a conclusion at the end of the Claimants’ appeal in the Supreme Court, and that the Claimants did not need a “forthwith” Order to commence detailed assessment of the costs of the appeals to the Court of Appeal and the Supreme Court.

In the event that, contrary to my initial rulings, the Order made by the appellate court does not confer on the Claimants an entitlement to immediate assessment, Mr McDonnell contends that Master Simons had, and I have, no jurisdiction to permit the Claimants’ detailed assessment proceedings to continue, and no option but to accede to the Defendants’ application. He submits that the extent of the Court’s discretion is set out in Practice Direction 47 at para 1.3, is predicated on a pre-existing entitlement to commence, and allows only two forms of order.

Mr Mallalieu submits that (as Hamblen J held in the GB Gas case) the Court does have such a jurisdiction, and that the orders which the Court may make pursuant to Practice Direction 47 at para 1.3 include but are not limited to the two forms of order which are specified therein.

In addition to the cases considered above, I was referred to the decision of Master Campbell in Royalton Ltd v Prichard [2011] EWHC 90216 (Costs). That case did not concern the order of an appellate court, but instead concerned an Order of Penry-Davey J made on an application for specific disclosure that provided: “The costs of this application to be the subject of a detailed assessment to be paid by the Defendant to the Claimant”. Master Campbell allowed the application of the Defendant, appearing in person, for an order setting aside the Claimant’s notice of commencement of detailed assessment, essentially on two grounds (see [19]). First, he did not consider that it had ever been the intention of Penry-Davey J that there should be an immediate assessment. Second, he considered that if he was to permit detailed assessment to continue he would, in the words of Patten J in the Crystal Decisions case “be rewriting CPR 47.1 in the sense that I would be departing from the general rule that the only Court permitted to deviate from that rule is the court making the costs order”. It seems clear that, having been successfully appealed in the Crystal Decisions case, Master Campbell was (entirely understandably) seeking to follow that appeal ruling.

Some of Master Campbell’s reasoning suggests that he rejected, or at least could see good reasons for not following, the approach of Hamblen J in BG Gas. For example, at [19] of his judgment Master Campbell says that “I consider that the reference to “the Court” [in CPR 47.1] is to the Court that makes the order, and not to the Costs Judge who is tasked with assessing the costs pursuant to that order” and that “I consider that it would be a surprising state of affairs if, on every occasion that the Court made an order for costs without directing an immediate assessment, the receiving party could make or renew his application for that purpose before the Costs Judge”.

At the same time, a rejection of Hamblen J’s analysis of CPR 47.1 was not necessary for Master Campbell’s decision. Further, Master Campbell was careful to recognise that there were in any event material differences between the facts of the case before him and the facts of the case before Hamblen J (also at [19]): “Hamblen J considered that he was able to order immediate assessment of the Court of Appeal costs because they were “discrete” and would not involve any great issue of “disentanglement”. I am not in that situation”.

It is unfortunate that the decision of Patten J in the Crystal Decisions case does not appear to have been drawn to the attention of Hamblen J in the GB Gas case. Further, the extent to which Hamblen J heard argument about the meaning of “Court” in PD 47.1 is unclear.

However, it forms an essential part of the reasoning for the decision of Hamblen J that the Court (i.e. in the present case, a costs judge) has jurisdiction to make an order for an immediate assessment of the appeal costs even if the appellate court did not do so, whereas the contrary view that the only court that has power to order an immediate assessment of the appeal costs is the appellate court itself was not the basis of the decision of Patten J. Further, the decision of Hamblen J is more recent than that of Patten J.

I do not consider that the decision of Hamblen J is materially affected by the decision of Master Campbell, not least because Master Campbell’s observations on the two decisions of Patten J and Hamblen J were not necessary to his own decision.

In these circumstances, I consider that I ought to follow the decision of Hamblen J, and, on that basis, I would decide the second issue in favour of the Claimants.

I consider that there is force in the reasons given by Hamblen J for taking the view that he did. In addition, this should not open the floodgates to a mass of applications for immediate assessment in cases in which that has not been specifically ordered by the Court which made the order for costs. Many cases will be governed by the approach which Master Campbell adopted with regard to the Order of Penry-Davey J. If the cases which are not governed by that approach extend beyond cases in which the order in question was made by an appellate court, then it may be that in the particular circumstances of some cases such applications will be appropriate. If made when inappropriate they will attract adverse costs consequences.

Both sides were content to deal with this part of the argument on written submissions alone.

Mr McDonnell submitted that, even if the Claimants had an entitlement to have their costs assessed, Master Simons was wrong to not stay the detailed assessment proceedings until the conclusion of the claim on the basis that detailed assessment would be more conveniently and proportionately dealt with at the conclusion of the claim, for the following reasons:

Mr Mallalieu submitted as follows:

I hope that I do Mr McDonnell and Mr Mallalieu no discourtesy, and that I can do full justice to their arguments on this topic, by saying that I prefer Mr Mallalieu’s submissions.

I therefore rule in favour of the Claimants on this issue. In my judgment, Master Simons was amply entitled to exercise his discretion as he did, and there are no grounds on which this Court could or should interfere. In contrast to the Crystal Decisions case, in which Patten J found that Master Campbell had given no reasons at all for exercising his discretion as he did, in the present case Master Simons has explained his reasons at [15]-[22] of his judgment. As an experienced costs judge, he was in a good position to assess all of the Defendants’ points.

For all these reasons, this appeal cannot succeed and must be dismissed. The parties’ representatives are asked to agree a form of order. I will hear submissions on any points on which they are unable to agree, and on any other issues such as costs and permission further to appeal, either when this judgment is handed down, or at some other convenient date.