Daniel Carlos Scenna v Persons unknown Using the Identity “Nancy Chen”
| Jurisdiction | England & Wales |
| Judge | James Pickering |
| Judgment Date | 30 August 2023 |
| Neutral Citation | [2023] EWHC 2173 (Ch) |
| Court | Chancery Division |
| Docket Number | Claim No. BL-2022-001711 |
[2023] EWHC 2173 (Ch)
James Pickering KC
(sitting as a Deputy High Court Judge)
Claim No. BL-2022-001711
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
BETWEEN:
Celso De Azevedo (instructed by Giambrone & Partners LLP) for the Claimants
Edward Harrison (instructed by Farrer & Co LLP) for the Seventh Defendant
Edward Levey KC (instructed by Herbert Smith Freehills LLP) for the Eighth Defendant
Hearing date: 9 June 2023
APPROVED JUDGMENT
James Pickering KC (sitting as a Deputy High Court Judge):
Introduction
On 5 April 2023, I delivered my substantive judgment in the above matter. That judgment was essentially in favour of the Seventh and Eighth Defendant Banks (“ the Banks”).
On 9 June 2023, the consequentials hearing took place. At that consequentials hearing, amongst other things, I decided that the Claimants should pay the Banks' costs of the Disclosure Applications on the indemnity basis and of all other matters, including the Jurisdiction Applications, on the standard basis.
I further decided that, rather than make an order for detailed assessment together with a payment on account, the above costs should be summarily assessed. Unfortunately, however, there was insufficient time for that summary assessment to take place there and then as a result of which I gave directions for brief written submissions. In due course, I received those written submissions for which I am grateful.
The relevant principles
A number of principles were outlined to me in argument. None was controversial but they are worth briefly re-stating here.
(a) The difference between assessment on the standard and indemnity bases
Whether the costs are to be assessed on the standard basis or an indemnity basis, the court will not allow costs which have been unreasonably incurred or are unreasonable in amount: CPR 44.3(1).
When such assessment is to take place on the standard basis, the court will (a) only allow costs which are proportionate to the matters in issue; and (b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party: CPR 44.3(2).
By contrast, when assessing costs on the indemnity basis, (a) any doubt as to whether any costs were reasonably incurred or were reasonable in amount is to be decided in the receiving party's favour, and (b) proportionality is not a relevant consideration: CPR r. 44.3(3) 1.
(b) The difference between summary assessment and detailed assessment
A detailed assessment will generally involve a line by line billing exercise.
By contrast, where a summary assessment is to take place, a broad brush approach is to be adopted: Brake v Guy [2022] EWHC 2907 (Ch) at [26–27]; Football Association Premier League v The Lord Chancellor [2021] EWHC 1001 (QB) at [20].
(c) The relevance of the paying party's costs
I also take on board that when summarily assessing the costs that a receiving party is to receive, the costs incurred by the paying party may be relevant (albeit not determinative) when considering the reasonableness and proportionality of the receiving party's costs: Malmsten v Bohinc [2019] EWHC 1386 (Ch) at [69(3)].
The amount of costs sought
The starting point when summarily assessing costs is to consider the amount of costs being claimed by the receiving party as set out in the relevant costs schedules (and as verified by the relevant solicitors in each case).
In the present case, the costs claimed by the (receiving) Banks can be summarised as follows:
The Seventh Defendant:
The Eighth Defendant:
| Application | Amount Claimed |
| Disclosure Order Application | £160,835.78 |
| Jurisdiction Application | £58,647.53 |
| Costs Application | £7,371.75 |
| Post-hearing Costs | £15,826.00 |
| Total | £242,681.06 |
| Application | Amount Claimed |
| Disclosure Order Application | £103,929.06 |
| Jurisdiction Application | £35,803.09 |
| Costs Application | £3,946.08 |
| Post-hearing Costs | £16,710.01 |
| Total | £160,388.24 |
Given their potential relevance, I note here that the costs incurred by the (paying) Claimants can be summarised (with similar but not identical categorisation) as follows:
The Claimants' complaints
| Application | Amount Claimed |
| Disclosure Order Application | £28,025.00 |
| Jurisdiction + Injunction Applications | £23,225.00 |
| Total | £51,250 |
The Claimants' challenge the above level of costs sought on a number of broad bases. In short, so the Claimants say:
(1) The hourly rates charged by the solicitors in each case are too high. In particular, the Banks should be restricted to claiming solicitors' costs on the London Band 2 rate (as opposed to at a figure in excess of the London Band 1).
(2) There has been unnecessary duplication of work between Grade A and Grade B fee earners for the same tasks.
(3) The length of time spent on each task was unnecessary.
(4) Counsel's fees are “exceedingly high”.
I will consider each of these complaints in turn.
Discussion
(a) Hourly rates
The Guide to the Summary Assessment of Costs (2021 Edition) provides guideline hourly rates which are described as being “broad approximations” 2 and “a starting point
for those faced with summary assessment” 3. For Grade A solicitors, the hourly rate given is £373 for London 2 rising to £512 for London 1. For Grade B solicitors, it is £289 for London 2 rising to £348 for London 1. In this context, London 2 relates to certain central London postcodes, while London 1 relates to “very heavy commercial and corporate work by centrally based London firms” 4In the present case, the Seventh Defendant Bank's most senior fee earners have been charged out at £550 (Grade A) and £395 (Grade B) per hour, while the Eighth Defendant Bank's most senior fee earners have charged out at £668 (Grade A) and £550 (Grade B) per hour. In short, therefore, the hourly rates for the above senior fee earners are in each case higher than London 1 rated cases and quite significantly higher than London 2 rated cases.
The present case undoubtedly involved a degree of complexity, a degree of urgency and, of...
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