A decision by Deputy Judge Halpern (J2), refusing to set aside an order setting aside a default costs certificate in favour of the claimant (C), highlights the need for applications under CPR 3.1(7) to be made promptly.
The default costs certificate was set aside due to “double counting” in C’s bills of costs (accepted by both counsel at the hearing before the first judge (J1)). Subsequently, it transpired that there was no double counting.
C initially commenced fresh detailed assessment proceedings, but then applied, under CPR 3.1(7), to set aside J1’s order some nine months after it was made.
While accepting that C’s counsel had been “ambushed” on the double counting point, at the hearing before J1, J2 observed that C’s counsel could have appealed or sought an adjournment before judgment was given.
J2 first considered whether J1’s order was an interim or a final order. Although not “an easy question”, he concluded that it was an interim order. It seemed “unduly technical” to regard the costs certificate as a final matter, when the detailed assessment was a step in pre-existing proceedings. J2 also concluded that J1 had been misled: both counsel having accepted the double counting. These conclusions established a discretion to set aside the order under CPR 3.1(7).
Points in favour of setting aside the order included that, without double counting, J1 would not have set aside the certificate, and C’s “windfall” if the order was not set aside (through D losing the chance to challenge other items in the bill).
“Powerful” countervailing factors included the confusing way C drew up the bills of costs, and C’s agreement regarding the double counting but, “more seriously”, C’s delay applying under CPR 31.1(7), for which no explanation had been given.
J2 took account of principles underlying the rules on election between remedies as well as the overriding objective. Refusing the application, he noted the high burden on applicants (as established in Tibbles v SIG plc (t/a Asphaltic Roofing Supplies) [2012] EWCA Civ 518), concluding that, although there is a jurisdiction, which appears to overlap with the jurisdiction of appeal, finality is important, and it would be unusual for the court to grant an application under CPR 3.1(7) unless there was a good reason for not appealing.
Case: Hunt (Trustee in Bankruptcy of Peter Goldbart) v Winkler [2019] EWHC 931 (Ch) (26 March 2019) (David Halpern QC, sitting as a deputy High Court judge).
credits to practical law.
