Drew v Whitbread [2010] EWCA Civ 53 (09 February 2010)

Drew v Whitbread [2010] EWCA Civ 53 (09 February 2010)

A costs judge is not precluded from considering whether a case should have been allocated to the fast track and assessing costs accordingly, even if the point was not raised before the trial judge, provided the costs judge does not rescind or vary the trial judge's order. However, the costs judge must not simply...

Source-derived case information.

Citation
[2010] EWCA Civ 53
Parties
Appellant: Drew; Respondent: Whitbread
Jurisdiction
England and Wales
Judgment Date
09 February 2010
Procedural Posture
Appeal (civil) / Court of Appeal Judgment on Appeal From County Court Decision Regarding Costs Assessment
Outcome
Appeal allowed in part; matter remitted to costs judge for reconsideration.
Legal Topics
Costs Assessment, Standard Basis Costs, Fast Track Vs Multi Track Allocation, Proportionality of Costs, Conduct of Parties, Exaggeration of Claim, CPR 44.3 and 44.5 Interpretation
Civil Procedure Costs Costs Assessment Standard Basis Costs Fast Track Vs Multi Track Allocation Proportionality of Costs Conduct of Parties Exaggeration of Claim +1 more

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Summary, issues, holding and outcome

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Parties

Drew

Appellant

Whitbread

Respondent

Procedural Posture

Appeal (civil) / Court of Appeal Judgment on Appeal From County Court Decision Regarding Costs Assessment

Legal Issues

  1. 1 Whether a costs judge can assess costs on a fast track basis in a multi-track case where the issue was not raised before the trial judge
  2. 2 Whether failure to raise a point before the trial judge precludes raising it before the costs judge
  3. 3 Whether the costs judge's reliance on an inaccurate note regarding exaggeration affected the assessment

Ratio Decidendi

A costs judge is not precluded from considering whether a case should have been allocated to the fast track and assessing costs accordingly, even if the point was not raised before the trial judge, provided the costs judge does not rescind or vary the trial judge's order. However, the costs judge must not simply substitute fast track costs without proper reasoning, especially where the trial exceeded one day and the circumstances are complex. The matter should be reconsidered in light of the correct legal principles and accurate factual findings.

Court Disposition

Appeal allowed in part; matter remitted to costs judge for reconsideration.

Orders

  • The assessment of costs is remitted to the costs judge for reconsideration in accordance with the Court of Appeal's judgment.