The court can order a party to serve an amended bill of costs even though there is no specific power in the CPR, the Senior Costs Judge has decided.
Master Gordon-Saker (pictured) was ruling in a case where he was asked to make such an order over an £800,000 bill that the defendant said failed to separate specific common costs and non-specific common costs.
He held: “The rules enable the court to make any order for the purpose of managing a case: CPR 3.1(2)(m). By analogy with the court’s powers to strike out a statement of case (CPR 3.4) and to require a party to provide further information (CPR 18.1), it seems to me that the court must also have the power, in an appropriate case, to require a party to serve an amended bill which either omits costs to which that party cannot be entitled or which identifies the basis on which the costs are claimed if otherwise there could not be a fair detailed assessment hearing.”
Nonetheless, in the case before him, Austin v East Sussex Fire and Rescue Service, he declined to make such an order. The case concerned a claim brought by a firefighter over psychological injuries suffered in an explosion that killed two of his colleagues. The claim was consolidated with those issued on behalf of the dependants of the deceased firefighters.
The claim was against two defendants, East Sussex Fire and Rescue Service and Alpha Fireworks Limited, but, early on in the proceedings, Alpha went into liquidation and played no further part in the case.
The fire service was found liable to Mr Austin after an eight-day liability trial, and two years later he accepted a £25,000 part 36 offer six months out of time.
The defendant argued in its points of dispute that the claimant was not entitled to all the specific common costs and that non-specific common costs had been claimed as specific common costs and vice versa. It said the bill had been drawn incorrectly in that it did not allow the defendant to know what was being claimed against it, and that the bill should be redrawn.
The defendant cited a previous decision of the master’s (Mullan v Chief Constable of the Thames Valley Police [2009] EWHC 90140 (Costs)), where he had made such an order because the claimant was seeking costs to which it could not be entitled.
Saying that this case was different because on their face none of the items claimed were “objectionable in principle”, Master Gordon-Saker decided that the appropriate time to resolve these issues was at the detailed assessment. “I think that it would be disproportionate to require the claimant to revise his bill yet again [he had previously served two bills prematurely]… The issues are whether specific items have been correctly identified and how those which are properly specific common costs should be divided. The appropriate time for resolving those issues is at the detailed assessment hearing.
“If that hearing is lengthened because items have been misdescribed or because excessive time is spent on dividing items which have not been divided, it may be appropriate to reflect that in the order for the costs of the detailed assessment proceedings. But, as matters stand, I cannot say that the way in which the bill is drafted would imperil a fair detailed assessment hearing.”
The transcript can be found on the website of Temple Garden Chambers, whose Matt Waszak (instructed by Jessica Swannell and Michelle Farlow of A&M Bacon) acted for the claimant.
Picture credit: Tim White/Defence Images