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Aaron v Shelton, Queen's Bench Division, 25 May 2004

16 June 2004
The issues

Detailed Assessment – Costs Orders – Abuse of Process

The facts

The action was connected with six previous actions related to under-lessees of premises in Gants Hill, Ilford in Essex. Both Claimant and Defendant were solicitors. In the present action the Claimant relied on three courses of action against the Defendant – breach of warranty of authority, abuse of civil proceedings, causes and conspiracy.

The gist of the claim was that the Defendant had improperly signed a consent order in the second of the six previous actions. On the fourth day of the Trial in that action following the production of an attendance note, the Claimant had agreed to his action being dismissed. He was ordered to pay the Defendant’s costs on an indemnity basis subject to detailed assessment. The Trial Judge ordered a transcript of the proceedings to be sent to the office for the supervision of solicitors and he invited the office to look into eight aspects of the Claimant’s conduct in particular. Disciplinary proceedings against the Claimant followed and were heard in February 2002 and it appeared (the Judge having no evidence before him) that one and possibly two charges were upheld.

In May 2002 the Defendant’s solicitors Merricks served a bill of costs totalling £62,000.00. After a complicated procedural history the Claimant/paying party served points of dispute. Most of them related to particular items in the bill but they were too general points. The first of which went to the Defendant’s conduct and in particular to admissions allegedly made in cross-examination as to his conduct when acting for his client in the six previous actions.

The Defendant/receiving party filed points of reply arguing that issues of conduct should have been raised at the trial when the question of costs fell to be considered and that it was too late to argue the issue now. The matter came before the Master who made a number of rulings and in particular refusing to allow the Claimant “to dilute the effect of the costs order to which he had consented” and refusing the Claimant to argue the conduct issue. The Claimant appealed.

The decision

1. Where a party wished to raise in relation to costs a matter concerning the conduct of his opposing party, either before the litigation or during it, it had to be raised before the Judge making the costs order where appropriate to do so.

2. If he did not do so, it was not open to him to raise the matter at detailed assessment.

3. If he was uncertain whether it was a matter that should be raised before the Trial Judge he should raise the question directly before the Judge who could then take a view himself.

4. Where a costs order was made by consent, the paying party should seek to include in the consent order a provision which took account of the matter he wished to raise by providing that he was not to pay the whole of the costs or which specifically referred the matter in question to the costs judge for determination.

On the particular facts of this case the position was particularly plain. The issues which the Claimant sought to raise as to conduct were at the heart of the action, the dismissal of which he had consented to so it was an abuse to raise those issues at detailed assessment.

Comments

Although on the fact of it this case appears to deal with a very special and slightly unusual set of facts, the guidance given as to what should be included in a consent order may concern insurers where there are issues of conduct which may be raised later at a detailed assessment, from the point of view of achieving swift, viable settlement.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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