Drake and Another v Fripp
| Jurisdiction | England & Wales |
| Judge | The Master of the Rolls,Lord Justice Aikens,Lord Justice Lewison |
| Judgment Date | 03 November 2011 |
| Neutral Citation | [2011] EWCA Civ 1282 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2010/2364 |
| Date | 03 November 2011 |
[2011] EWCA Civ 1282
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
Ms Susan Prevezer
(Sitting as a Deputy High Court Judge)
CH2009PTA0694
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master Of The Rolls
Lord Justice Aikens
and
Lord Justice Lewison
Case No: A3/2010/2364
Mr Damian Falkowski & Mr Thomas Amraoui (instructed by Sharpe Pritchard) for the Applicants
Mr Leslie Blohm QC & Mr Alex Troup (instructed by Coodes) for the Respondent
Hearing dates : 2 November 2011
Approved Judgment
ON COSTS
This judgment is concerned with the assessment of costs following a half day hearing of a boundary dispute appeal, which we dismissed. The background facts and reasons for dismissing the appeal are fully set out in Lewison LJ's judgment, with which Aikens LJ and I agreed – see [2011] EWCA Civ 1279.
After the end of the argument, we indicated that we would be dismissing the appeal for the reasons given the following day in that judgment, and we invited the parties to make submissions as to costs. On behalf of SLA, Mr Falkowski realistically accepted that his client should pay Mr Fripp's costs, but both he and Mr Leslie Blohm QC, on behalf of Mr Fripp, invited us to direct that those costs be subject to a detailed assessment by a costs judge.
Para 14.1 of Practice Direction 52 states that costs "are likely to be assessed by way of summary assessment" at various types of hearing in this court, including appeals, such as the present one, which are "listed for one day or less". Accordingly, as I see it, we should assess the costs summarily unless there are good reasons for not doing so.
Two reasons have been advanced as to why we should not do so. The first reason, which is raised by both parties, is that the costs below are currently subject to a detailed assessment, so the costs of this appeal could be conveniently included in the assessment exercise. The second reason, raised only by SLA, is that Mr Fripps's counsel's fees are subject to an uplift. I do not regard either reason as a good one.
So far as the first reason is concerned, it would, if we accepted it, apply in a large number of appeals, and would therefore cut across the purpose of para 14.1, which is to get rid of the costs, delay and court time involved in a detailed assessment in relation to an appeal estimated to last no more than a day. The costs which would be involved in a detailed assessment are of particular relevance in the present case, as will be apparent from the facts discussed later in this judgment. Further, there is no reason to think that the costs judge who carries out the detailed assessment of the costs below would be in a better position than we are to assess the costs in this appeal. The second reason is also of little force. It would, of course, be open to us to determine the base costs summarily, and direct a detailed assessment of the appropriate uplift, but it seems to me that we are in a better position than any costs judge to assess the appropriate uplift.
I turn to the summary assessment. Mr Fripp's solicitors were acting on a traditional basis, charging at an appropriate hourly rate for a partner. Although only junior counsel appeared for Mr Fripp below, he was led on this appeal. Both counsel appeared on a conditional fee basis, and negotiated a success fee, or uplift, of 100%. The total costs claimed by Mr Fripp are £55,188.50, which is made up as follows: (i) solicitors' costs prior to the hearing: £6006.50 (at the rate of £205 per hour); (ii) solicitors' costs of attending the hearing: £2870.00 (at the same hourly rate); (iii) out of pocket expenses of £162.00, (iv) counsels' fees: £23,075.00 (made up of leading counsel £5,425 for advising and preparing the case for trial, and £9,500.00 brief fee, and junior counsel's £4,150.00 for advising and preparing the case for trial, and £4000.00 brief fee); (v) uplift on counsels' fees: 100%. The total of items (i) to (iv) is £32,113.50, which represents the base costs, to which item (v) is added.
On a detailed assessment, the costs judge should first look at the overall base figure and consider whether it seems proportionate. If it does, then the costs judge will allow a reasonable sum for each item on the receiving party's bill which it was reasonable to incur. If the base figure does not seem reasonable, then the costs judge will allow a reasonable sum for each item on the bill only if satisfied that the item was necessarily incurred. That this is the correct approach is clear from Home Office v Lownds (Practice Note) [2002] EWCA Civ 365, [2002] 1 WLR 2450 para 31 as approved and applied in Motto v Trafigura Limited [2011] EWCA Civ 1150, paras 43–50.
I can see no good reason why a similar approach should not be adopted when the court is carrying out a summary assessment. Indeed, it would be rather bizarre if different principles applied in relation to the two methods of assessment.
In relation to this appeal, I am quite satisfied that the base costs incurred by Mr Fripp are disproportionate – and in fairness to his legal advisers, I should emphasise that that is not the same thing as saying that they are unreasonable, in particular as between solicitor and client. The land at stake is a strip of scrubland some one and a half acres in extent; it appears to have no significant value to SLA; while it was not suggested that it had any intrinsic value to Mr Fripp, it does appear to provide an improved means of access to other land, but, as far as I can see, if he had not won this case, he would simply have had to move a gate. It is true that this a second appeal, so two sets of costs were also potentially at stake, but I do not think that that can justify as proportionate...
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