Isah, R (On the application of) v Secretary of State for the Home Department [2023] EWCA Civ 268

This is another recent decision that makes for very interesting reading from a costs perspective. Arising from an appeal on whether or not a judge is permitted to order costs to be summarily assessed in a different court by a different judge or whether a Summary Assessment must be undertaken by the judge making the order for it, either at the same time or at some time in the future.

Mr Isah, the Appellant had been successful in his claim for damages for unlawful retention by the Secretary of State for the Home Department, however, at the Detailed Assessment of the Appellant’s costs, his Bill of Costs was reduced considerably from approximately £88,000.00 to approximately £25,300.00 with no order as to costs in relation to the Detailed Assessment proceedings. The Appellant was granted permission to appeal on both of these points.

The Respondent made a Part 36 offer in relation to the appeal and an application requesting that the Court determine the costs of the appeal. An order was made on this appeal providing for the Respondent to pay the Appellant’s costs of the Detailed Assessment before Master Brown, the Appellant to pay the Respondent’s costs of the Appeal from 16/10/21, the Respondent to pay the Appellant’s costs of the appeal prior to that date and there was no order as to costs in relation to the Respondent’s application. The order provided for the Summary Assessment of these costs if they could not be agreed, however, Mr Justice Linden did not provide any direction as to whether this should go back before Costs Judge Brown and instead the matter was listed to be heard before a costs judge.

After submissions on behalf of both parties, an Appeal was subsequently allowed on the issue of Summary Assessment and the Court held that the Summary Assessment “must be undertaken” by the judge making the order for it, “whether at the same time or at some point in the future.” The Respondent had sought to argue that the Court has a case management discretion and can direct that a Summary Assessment can be conducted by another judge at a later date. The Appellant did not accept this argument, placing emphasis upon the definitions of both Summary Assessment and Detailed Assessment as defined in CPR.

Summary Assessment as defined at CPR 44.1 (1) is “the procedure whereby costs are assessed by the judge who has heard the case or application”. Lady Justice Asplin commented that the CPR left the Court in “an inflexible position” and raised the idea that this clear rule might be worth reconsideration at some point in the future by the Rules Committee. The Summary Assessment in this matter, however, was ordered to be remitted to the judge for him to undertake it at a convenient time, whether in person, by means of a Teams hearing, by telephone or on paper.

Melanie Pearson

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