What the applicant did right:
The application to set aside the default costs certificate was issued promptly, as is required by CPR PD 47 11.2(2).
The applicant’s errors:
- The applicant – who was a litigant in person, a non-practising criminal litigation solicitor medically retired – argued that the receiving party had sought to take advantage of his known physical and cognitive difficulties, inter alia, in failing to respond to his objection to the notice of commencement and in commencing detailed assessment proceedings shortly before Christmas. The court was unimpressed; the applicant could have sought an extension of time, but instead chose to email the receiving side the day before the period for points of dispute expired arguing that the entitlement to costs had been forfeited.
- The applicant sought to rely on the fact that the relevant ET judgment was subject to an appeal. Rejecting this line of attack, costs judge Leonard was clear that merits of the order for costs and the prospects or merits of any appeal are simply not matters that the SCCO may take into account – i.e. CPR 47.12(2) affords the court discretion to set aside only if it appears that there are good reasons why the detailed assessment proceedings should continue (not whether the order for costs was merited in the first place).
- The applicant failed to provide draft points of dispute, which CPR PD 47.11.2 makes clear, is the normal method by which to convince the court that there are good reasons for the assessment proceedings to continue. The judge was clear that the draft points of dispute should accompany the application notice, this to give the receiving side adequate time to respond (the court cannot be expected to assess the merits of points made in opposition to the bill of costs on the hoof).
- The applicant, at the same time, pursued what the judge took to be an application to set aside the notice of commencement (on the ground that it was served three months outside of the period prescribed in CPR 47.7). The application was bound to fail, it did not seek any of the available sanctions under CPR 47.8. [late service is normally penalised by the disallowance of interest on costs; save for the courts’ powers in relation to misconduct under CPR 44.11 (not raised in this case by the applicant) the court may disallow some or all of the costs only where the paying party has obtained and the receiving party has failed to comply with, an order requiring the commencement of detailed assessment].
Takeaway:
Unless the court can be convinced to set aside the default costs certificate on the basis that the receiving side was not entitled to it, the applicant must show why there is good reason why the detailed assessment should proceed. The submission of draft points of dispute is normally essential for this purpose.
Note:
The judgment once again made clear that the SCCO cannot grant a stay of detailed assessment pending an appeal – that is a matter to take before the court whose order is being appealed or the court that will hear the appeal.
Link to judgment: Willis v GWB Harthills LLP & Ors [2024] EWHC 409 (SCCO) (26 February 2024) (bailii.org)
