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Less v Benedict, Chancery Division, 25 July 2005

22 August 2005
The issues

Costs – Delay in commencing Detailed Assessment Proceedings – Sanction

The facts

The receiving party served Notice of Commencement of Assessment of Bill of Costs on the paying parties. There was confusion as to whether the Notice had or had not been properly served. About 3 Ω years later the receiving party re-served the Notices on the paying parties at their last known addresses. The paying parties applied to strike out the assessment on the grounds of inordinate delay. They argued that their right to a hearing within a reasonable time under the European Convention Article 6 would be breached if the costs assessment was allowed to continue; that the delay was excessive and unreasonable and without explanation and amounted to an abuse of process; and that the Court should impose a sanction for delay pursuant to CPR Rule 3.4 and CPR Rule 44.14.

The decision

The receiving party served Notice of Commencement of Assessment of Bill of Costs on the paying parties. There was confusion as to whether the Notice had or had not been properly served. About 3 Ω years later the receiving party re-served the Notices on the paying parties at their last known addresses. The paying parties applied to strike out the assessment on the grounds of inordinate delay. They argued that their right to a hearing within a reasonable time under the European Convention Article 6 would be breached if the costs assessment was allowed to continue; that the delay was excessive and unreasonable and without explanation and amounted to an abuse of process; and that the Court should impose a sanction for delay pursuant to CPR Rule 3.4 and CPR Rule 44.14.

Comments

There was no breach of the Article 6 right at all. It had been in the hands of the paying parties all along to bring the matter to Court had they so wished. CPR 47 provided a mechanism for either party to bring the matter to the attention of the Court in order to obtain a hearing within a reasonable time. If a party failed to take advantage of that mechanism they could not be said to have been deprived of their article 6 rights. Moreover to refuse to hear the present case on the basis of unreasonable delay and a prior breach of Article 6 would be to deprive the receiving parties entirely with the benefit of their costs order and that might amount to a breach of their own Article 6 rights.

As to abuse of process in order to succeed the paying parties would have to show that there was a substantial risk that a fair hearing was not possible. They had relied on the non availability of one of the paying parties files. The significant files however would be the files of the receiving party and they were available. There was nothing contumelious in the delay. The Master below had taken the view that a fair assessment was still possible and had commented that delay normally prejudices the receiving party more than the paying party.

He had carried out a meticulous examination of the relevant factors, had made everything balance and had found no evidence of prejudice. There was nothing that would justify interference with his conclusions.

The Master had disallowed interest between May 2001 and December 2004 his power coming from CPR 47.14(5). No other sanction for failure to request a hearing was permissible other than in accordance with CPR 44.14.

That rule allowed the Court to make an order where a party had failed to comply with a rule, practice direction or Court order or where it appeared to the Court that the conduct of a party before or during the proceedings giving rise to the assessment proceedings was unreasonable or proper. That part of the rule did not apply to the assessment proceedings themselves. There was nothing in the conduct of the receiving party that would justify being categorised as “unreasonable or improper”.

CPR 44.14 was intended to cover the case of breach of rule, practice direction or court order which went beyond mere non compliance with a time limit. However the Court was reluctant to say that this was because there was no jurisdiction to apply such a sanction other than in serious cases. It might only be in the most exceptional case which it was not easy to envisage that mere delay could result in an exercise of the power. The possibility could not be ruled out however.

The paying parties’ appeal dismissed.

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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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