Trial judge or costs judge?

Aaron v Shelton [2004] EWHC 1162 (QB); NLJ 4 June

Where a losing party considers that he should not be liable to pay the whole of the costs of the action by reason of the opposing party’s conduct, he should make an application to the trial judge when considering what orders as to costs should be made under CPR rule 44.3. If he does not do so, it is not open to the paying party when the costs come to be assessed to raise the same matter under CPR rule 44.5(3) before the costs judge as a ground for the reduction of the costs he would otherwise have had to pay. If the unsuccessful party is uncertain whether a matter he wishes to raise falls within a category to be decided by the judge, he should raise the matter before the judge. The judge could then consider whether he should deal with it or specifically direct that it should be considered by the costs judge on assessment. A consent order should also include a provision that the unsuccessful party was not to pay the whole of the costs, or specifically refer the matter in question to the costs judge for determination. Where the consent order was made during a trial with the claimant abandoning his claim or the defendant conceding the claim, a paying party who did not protect himself in those ways ran the risk that the costs judge would decide that the matter in question was one it had been appropriate to raise before the judge making the costs order, and which should not be raised before him. It was an abuse of the court process to raise an issue before the costs judge which was not, but should have been, raised before the judge making the order for payment of costs. An analogy could be found in the principle that if a party could properly have raised an issue in proceedings but did not, he would not be permitted to do so subsequently.