Summary assessment cannot be delegated

Mahmood and another v Penrose and others [2002] EWCA Civ 457

The recorder (after a hearing listed for 15 minutes, but which lasted all day!), granted the claimants’ application for an adjournment of the trial and ordered the claimants to pay the costs of the application. The recorder was also asked for an immediate order in relation to wasted pre-trial costs, the costs of an earlier hearing and the costs of the trial bundle. The recorder ordered the claimants to pay wasted pre-trial costs in the sum of £1,533.38 and ordered that the claimants should pay the remaining costs, but referred the questions of quantification and manner of payment to the trial judge. At the trial, the judge reserved judgment to a future date on which the claimants were warned he would deal with the costs referred to him by the recorder. The claimants did not attend on the date judgment was delivered, when the judge assessed the reserved costs in the amount claimed. The claimants appealed relying on section 13.8 of the Costs Practice Direction which provides: ‘If a summary assessment of costs is appropriate and the court awarding costs is unable to do so on the day, the court must give directions as to a further hearing before the same judge’. The rule clearly states that the only person who can make a summary assessment is the judge who awarded costs at the hearing. The reasoning behind the rule is clear. It is that only the person who has actually heard the case and knows about it is in a position to make a summary assessment of costs. It was a great misfortune that further costs had to be incurred but the Court of Appeal had no alternative but to allow the appeal and order that there be a detailed assessment.