Is a judge permitted to order costs to be summarily assessed in a different court by a different judge or must a summary assessment be undertaken by the judge making the order for summary assessment, whether at the same time or in the future? This was the question that came before the Court of Appeal in R (on the application of Jerry Isah) v The Secretary of State for the Home Department  EWHC 1264 (QB).
The claimant was successful in his claim for damages for unlawful detention by the defendant. The master conducted the detailed assessment of the parties’ costs but made no order as to costs in respect of the assessment process itself. The claimant was then given permission to appeal to the High Court on the master’s decision on costs and his failure to make an order in respect of the assessment process. The defendant then made a Part 36 offer in relation to part of the appeal and filed an application pursuant to CPR 16(5) seeking the court’s determination of the costs of the appeal.
Linden J made an order that: the defendant pay the claimant’s costs of the detailed assessment before the master; the claimant pay the defendant’s costs of the appeal from 16 October 2021; the defendant pay the claimant’s costs of the appeal prior to that date; and there be no order as to costs in relation to the defendant’s CPR 16(5) application. Paragraph 6 of the order provided for summary assessment of those costs (if not agreed), with the assessment to be conducted by a master of the Senior Courts Costs Office.
There was no indication that submissions were made to the judge in relation to whether there was power to direct that the summary assessment be heard by another judge, whether a master in the Senior Courts Costs Office or otherwise. Therefore, the central question for the Court of Appeal was whether there was power to make such an order.
The court decided to allow the appeal in relation to the summary assessment issue. Giving the leading judgment, Asplin LJ held that it was clear from the definition of ‘summary assessment’ under CPR 44.1(1) that it is an assessment conducted by the judge who heard the case. It was to be contrasted with a detailed assessment which is defined in a different way. Summary assessment is a different type of procedure which is undertaken by a costs officer. Asplin LJ noted that those terms are used in CPR 44.6(1) which provides that the court ‘may either – (a) make a summary assessment; or (b) order detailed assessment by a costs officer in accordance with Part 47, unless any rule, practice direction or other enactment provides otherwise’. She therefore disagreed with the defendant that the use of ‘may’ before the two alternatives in CPR 44.6(1) created a case management discretion so that the court has power to order a summary assessment to be conducted by a costs officer; CPR 44.6(1) was clear. Asplin LJ held that the court is given two alternatives. It must either ‘make’ a summary assessment or ‘order’ a detailed assessment pursuant to CPR 47. She agreed with the claimant that the use of ‘may’ should be read together with ‘either’ and is concerned solely with the choice open to the court. This approach to CPR 44.6(1) was, Asplin LJ explained, reinforced by the terms of the rule as a whole. The use of ‘make’ in relation to summary assessment in (a) is consistent with the definition of the term and the need for the court, if it adopts that alternative, to make the assessment. By contrast, the use of ‘order’ in (b) is apposite in circumstances in which the court orders the assessment to be carried out by someone else.
Asplin LJ also held that PD 44 (‘Procedures for assessing costs’) cannot be used to override CPR 44 itself (see In re C (Legal Aid: Preparation of Bill of Costs)  1 FLR 602). However, where it is consistent with the rules and provides guidance as to practice, it should be taken into account. In this case PD 44 was consistent with CPR 44.1(1) and 44.6(1). Paragraph 9.2 provides that the general rule is that the court should make a summary assessment at the conclusion of the hearing. Further, the second sentence of paragraph 9.7 provides that if a summary assessment is appropriate and the court awarding costs is unable to deal with the matter on the day ‘the court may give directions as to a further hearing before the same judge’. Asplin LJ also disagreed with Coulson J’s conclusion in Transformers and Rectifiers Ltd v Needs Ltd  EWHC 1687 (TCC) that another judge may be able summarily to assess the costs arising out of a hearing conducted (or an order made) by another judge because Coulson J was not referred to the definition of ‘summary assessment’ in CPR 44.1.
Asplin LJ concluded that ‘the rules as drafted leave the court in an inflexible position in which only the judge who heard the matter can make the summary assessment. There is no power to do otherwise. I accept, however, that there might be circumstances in which a judge who had not heard the original matter is in a position to carry out the broad-brush exercise which is the hallmark of summary assessment and it would be proportionate and just for him or her to do so. The circumstances in which Coulson J found himself might be one such circumstance. Another might be where the judge who heard the matter is likely to be unavailable for a considerable time. In those circumstances, of course, the delay must be weighed against the additional cost involved in another judge considering the matter and the question of whether in the circumstances of the case, it would be just for someone who had not heard the matter to undertake the broad-brush exercise’.
The decision makes clear that the necessary costs rules do not permit a judge other than the judge who heard the matter to conduct a summary assessment procedure. However, although the rules are unambiguous, they are undesirably rigid. The rules should be amended to provide greater flexibility so that, in furthering the overriding objective and, in particular, the principle of proportionality, they permit a judge other than the judge who heard the matter to conduct a summary assessment of costs. This is clearly an issue for the Civil Procedure Rule Committee. (This article was published in Law Society Gazette on 21 April 2023 and is available here.)