In Harlow District Council v Powerrapid Limited [2023]EWHC 586 (KB), the Council (‘Appellant’) made a Compulsory Purchase Order (‘CPO’) in respect of land owned in Harlow by Powerrapid (‘Respondent’). The Respondent successfully resisted the CPO and was awarded their costs.
District Judge Leonard determined the categories of costs that fell within the scope of the costs order and made a preliminary assessment as to the applicable hourly rates, including an uplift on the guideline hourly rates of between 8% and 41%. The Appellant appealed District Judge Leonard’s judgments in relation to the scope of the costs order and the hourly rates awarded.
There are two interesting features of this judgement: firstly, the Court’s position on a party appealing a costs Judge’s determination of hourly rates and, secondly, the relationship between the guideline hourly rates and detailed assessment.
Appealing a costs Judge’s determination of hourly rates
In determining the appeal regarding the hourly rates, the Mr Justice Choudhury considered the judgment of Mealing McLeod v Common Professional Examination Board [2002] 2 Costs LR 223and noted that “Permission to appeal should not be granted simply to allow yet another trawl through the bill, in the absence of some sensible and significant complaint”. Mr Justice Choudhury stated that:
“…the role of the Appellate Court in this context is a limited one, that it should be slow to interfere with the exercise of judgment by a specialist costs judge, and that it should only do so where the conclusions of the judge below exceed the generous ambit within which reasonable disagreement is possible”
In response to the Respondent’s submissions that the Judge did not preside over the substantive matter giving rise to the costs application, Mr Justice Choudhury commented:
“In my view, it would be to usurp the role of the costs judge if the appellate court were to consider that it was in an equivalent position to the costs judge and/or had some greater right to interfere with a judgment merely because the judge below (like the appellate court) had not heard the substantive matter.”
The relationship between the Guideline Hourly Rates and detailed assessment
Upon considering the hourly rates awarded by District Judge Leonard and the applicability of the Guideline Hourly Rates (‘GHRs’) on detailed assessment, Mr Justice Choudhury stated that:
“The Master of the Rolls’ emphasis on the Guide being “no more than a guide and a starting point for judges carrying out summary assessment” is important to bear in mind. I note that the Judge in the present case was not conducting a summary assessment, for which the Guide is principally intended… ”
Mr Justice Choudhury further commented that the GHRs are not as central to a detailed assessment as they are to a summary assessment and highlighted the reference in the Guide to the Summary Assessment of Costs 2021 (‘Guide’) that GHRs are intended to provide a starting point in a summary assessment, and that they may also be a helpful starting point on detailed assessment. He added that whether or not the GHRs are a helpful starting point is a matter to be considered by the costs Judge having regard to all the circumstances of the case.
In dismissing the challenge to the hourly rates awarded, Mr Justice Choudhury stated:
“It was open to the Judge to conclude, as he did, that the GHRs were not particularly useful in this case”
Mr Justice Choudhury in dismissing the appeal stated that “there was no error of principle or law on the part of the Judge and no judgment that exceeded the generous ambit afforded to him. Accordingly, there is nothing that would entitle this Court to interfere with his conclusions.”
Is it more beneficial for a Receiving Party to seek detailed assessment of their costs rather than summary assessment?
Mr Justice Choudhury’s judgment on the relationship between the GHRs and the detailed assessment proceedings reiterates the passage in the Guide that GHRs may be a useful starting point for detailed assessment proceedings, but a Judge can utilise their discretion and find that the GHRs are not useful in light of the circumstances of the case.
The contrast of this judgment to that of Samsung Electronics Co Ltd and others v LG Display Co Ltd and another (Costs) [2022] EWCA Civ 466, in which it was held that there must be ‘a clear and compelling justification’ to obtain hourly rates in excess of GHRs at summary assessment, clearly demonstrates that obtaining an uplift on the GHRs at summary assessment is a higher threshold to pass than at detailed assessment. Whilst the wording of the Guide requires that GHRs be a starting point on summary assessment, and leaves it open to the Judge to determine whether they are in fact helpful on detailed assessment, the case law has certainly widened the relationship between the two assessment processes. It would be preferable for a receiving party to have their costs assessed by way of detailed assessment than summary assessment.
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