18 ST JOHN STREET COSTS LAW SPECIALIST, JAMES MILLER, ANALYSES RECENT APPEAL SUCCESS

James Miller analyses a recent costs appeal success.

James Miller, instructed by Dan Carnall of Kennedys, acted for the Defendant/Appellant in an interesting costs appeal. 

The court had to decide whether the Claimant’s costs of preparing a Bill, assessed at Provisional Assessment, were recoverable where the Defendant had made an effective, pre-Bill Part 36 offer excluding them. The Defendant did not challenge the award for the Bill time on Provisional Assessment, meaning the Claimant recovered more on paper. The issue for determination on appeal was whether the Provisional Assessment was binding on the Defendant or its Part 36 offer prevailed.

The court also considered an ancillary procedural point regarding the Claimant’s failure to file and/or serve a Respondent’s Notice, in circumstances where it was alleged, for the first time in a skeleton argument, that the Defendant’s counsel had conceded the point being determined on appeal.

As to the first issue, Her Honour Judge O’Neil ruled in favour of the Defendant. Although the Defendant had not challenged the provisional amounts allowed for the Bill pursuant to an order and CPR 47.15(7), the successful Part 36 offer ruled the day. The Judge commented as follows:

“The defendant did not write to the court. The respondent to this appeal says that the fact that the defendant did not comply with paragraph 5 of the order arising from the provisional assessment, which is at page 95 of the appeal bundle, means that the sanction at paragraph 6 of the order bites. However, it would have been entirely inappropriate, and in fact in breach of CPR 36.16(2), once the defendant knew that the claimant was challenging the provisional assessment, for the defendant to make submissions based on the Part 36 offer prior to the costs being finally determined at the oral hearing…The claimant had failed to beat the defendant’s Part 36 offer on costs. Considering the principles that can be derived from Forward v Burton and Crosbie v Munro, the offer made after commencement and before the order of District Judge Baker (i.e. before the bill was prepared, because that was prepared in response to the order of District Judge Baker) should have been accepted and the costs of the bill should not have been incurred”.

In relation to the second issue, Her Honour Judge O’Neill agreed that the Claimant was seeking to raise a new point, namely that counsel had conceded the argument at first instance and a Respondent’s Notice was required. However, the Claimant’s failure made no difference to the appeal as the Judge determined the point was without merit. Counsel cooperating with the judge below on the consequences of his earlier decision did not amount to a concession.

The case serves as a reminder that a party responding to an appeal must file a Respondent’s Notice if additional and/or alternative grounds for upholding it are pursued. Further, that any time claimed for drafting and checking a Bill of Costs will be disallowed where an effective offer is made before it is prepared (Forward v Burton [2005] EWHC 90003 (Costs)).

A copy of the judgment is here:

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