Court of Appeal Limits Pre-Transfer Costs To IPEC Scale Where No Good Reason to Depart From Transferring Judge’s Indication

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The Court of Appeal’s decision in Salts Healthcare Limited v Pelican Healthcare Limited [2026] EWCA Civ 93 clarifies the costs consequences of transferring proceedings from the Intellectual Property Enterprise Court to the Patents Court, establishing that a trial judge who departs from the transferring judge’s indicated costs regime without good reason commits an error of principle.

Background

The underlying dispute was a patent infringement and validity claim concerning UK Patent No. 2569212 for an ostomy appliance. The Claimant, Salts Healthcare Limited, alleged that the Defendant, Pelican Healthcare Limited, had infringed the patent by marketing its ModaVi range of ostomy bags. Pelican denied infringement and counterclaimed for revocation. The claim was commenced in IPEC but was subsequently transferred to the Patents Court.

The procedural history relevant to costs began on 24 May 2023 when Pelican applied to transfer the claim. On 11 July 2023 HHJ Hacon acceded to the application and ordered the transfer for the reasons given in his judgment [2023] EWHC 2232 (IPEC). A recital in HHJ Hacon’s order stated that the court had indicated “that costs prior to transfer should be assessed in accordance with the usual IPEC scale cost caps pursuant to CPR r.46.21 and Practice Direction 46 albeit costs were reserved and this was an issue for the judge making the assessment”. Paragraph 2 of the order provided simply: “Costs reserved”.

The substantive trial took place in the Patents Court before Ian Karet OBE, sitting as a Deputy High Court Judge. In a judgment dated 5 March 2025, the judge dismissed Salts’ claim for infringement, declared claim 8 invalid as granted, and granted permission to amend. The judge addressed costs in a consequential judgment on 1 April 2025, in which he declined to order that Pelican’s pre-transfer costs be assessed in accordance with the IPEC scale cost caps.

Costs Issues Before the Court

The primary costs issue before the Court of Appeal was whether the costs incurred by Pelican during the period when the claim was proceeding in IPEC, prior to its transfer to the Patents Court, should be assessed subject to the IPEC scale costs caps. IPEC operates a distinctive costs regime under Section VII of Part 46 of the CPR. Rule 46.20(1) provides that “this Section applies to proceedings in the Intellectual Property Enterprise Court”. Rule 46.21(1) imposes a cap on total recoverable costs of £60,000 on the final determination of a claim in relation to liability. The only express exceptions are where a party has abused the process of the court or the claim concerns a patent, registered design, or trade mark the validity of which has been certified in earlier proceedings. In the Patents Court, by contrast, costs are assessed on the standard basis without pre-determined caps.

The dispute turned on the interaction between these provisions and the power to set terms on transfer under Practice Direction 30, paragraph 9.2(1).

The Parties’ Positions

Salts contended that the IPEC scale cost caps applied to all costs incurred while the proceedings were in IPEC, irrespective of the subsequent transfer. Its primary argument was that rule 46.20(1) governed costs for work done in that court, and that the only bases for exceeding the caps were those in rule 46.20(2), neither of which applied. Salts relied on the purpose of the IPEC scale as articulated in Westwood v Knight [2011] EWPCC 11: to provide certainty about costs exposure from the outset, enabling potential litigants and their advisers to predict their costs exposure before any action is commenced. In the alternative, if the judge had a discretion, Salts argued its exercise was flawed because he failed to give proper weight to HHJ Hacon’s indication and provided no good reason to depart from the IPEC scale.

Pelican argued that the IPEC scale cost regime applied only to proceedings that both started and concluded in IPEC. It relied by analogy on CPR 27.15(1), which expressly provides that where a claim is allocated to the small claims track and subsequently re-allocated, costs are assessed as if allocated to the new track from the outset. Pelican submitted that the absence of an equivalent provision for IPEC supported its interpretation. It also contended that the judge had correctly exercised his discretion, emphasising that the pre-transfer work formed an integral part of the overall litigation in the Patents Court.

The Court’s Decision

The Court of Appeal (Lord Justice Arnold, with whom Lord Justice Miles and Lord Justice Newey agreed) allowed Salts’ appeal on the costs issue. The court’s reasoning proceeded in three stages.

Interpretation and Discretion: The court held that rule 46.20(1) did not provide a clear answer to the question of what happens to pre-transfer costs after transfer. It rejected Salts’ primary argument that the IPEC caps applied as of right. However, it equally rejected Pelican’s interpretation that the caps only applied to cases that finished in IPEC. The court observed that Pelican’s reliance on CPR 27.15(1) was, if anything, a point against its own case, precisely because there was no equivalent provision for IPEC.

The key to the issue was found in paragraph 9.2(1) of Practice Direction 30, which provides that when ordering a transfer to or from IPEC, the court may “specify terms for such a transfer”. The court approved the earlier decision of HHJ Birss QC (as he then was) in Comic Enterprises Ltd v Twentieth Century Fox Film Corp [2012] EWPCC 13, which confirmed that this power includes the ability to order that pre-transfer costs be assessed on the IPEC scale in any event. The court agreed that it lies in the discretion of the judge making a transfer order whether to make such an order. It followed that, where no such order is made, the receiving court retains a discretion as to whether to apply the IPEC scale to pre-transfer costs.

The Purpose of the IPEC Scale: In reaching this conclusion, the court endorsed the statement of purpose given by HHJ Birss QC in Westwood v Knight, describing the scale costs regime as one of the key reforms implemented to improve access to justice for individuals and SMEs in intellectual property disputes. However, the court considered that the rationale for scale costs did not apply “at least with full force” to claims started in IPEC but then transferred to the Patents Court, since transfer inherently means the parties will no longer be protected by the scale costs provisions for future costs. The court expressly reserved for future consideration the question whether there is a residual discretion to depart from scale costs even in cases that remain in IPEC.

Flaw in the Exercise of Discretion: The Court of Appeal found that the trial judge’s exercise of discretion was flawed. The judge had concluded that it was “not an invariable rule” that pre-transfer costs were capped and that, because the IPEC work was integral to the Patents Court dispute, Pelican should recover its costs in the court in which the matter was determined. The appellate court held that this was the wrong approach. The recital in HHJ Hacon’s transfer order contained a clear indication that pre-transfer costs “should” be assessed under the IPEC caps. The discretion therefore fell to be exercised on the basis that HHJ Hacon’s indication should be departed from “if, but only if, there was a good reason to do so”. The trial judge had not identified any such reason. Rather, he had treated the pre-transfer costs as being at large, subject to the ordinary Patents Court costs regime.

Re-exercise of Discretion: Having found the exercise of discretion flawed, the Court of Appeal re-exercised it. The court noted that HHJ Hacon, as the IPEC judge who heard the transfer application, was well placed to assess the parties’ conduct during the IPEC phase. Pelican’s arguments about Salts’ pre-transfer conduct — the same arguments it had advanced before HHJ Hacon — did not persuade the court to take a different view. The court therefore varied the costs order to limit Pelican’s recoverable pre-transfer costs in accordance with the IPEC scale.

The court added, per curiam, that although its analysis referred to transfers from IPEC to the Patents Court, the same principles apply to transfers of copyright and trade mark claims from IPEC to the High Court.

Key Takeaway

This decision establishes that where IPEC indicates at the point of transfer that pre-transfer costs should be assessed on the IPEC scale, a receiving court may only depart from that indication for good reason. Practitioners acting in IPEC proceedings that may face transfer should ensure that the question of pre-transfer costs is expressly addressed in the transfer order — and, where appropriate, that a binding term under PD 30 paragraph 9.2(1) is sought rather than a mere indication in a recital.

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Provisional Assessment Set Aside Under CPR 3.1(7) For Material Breach Of Filing Duty

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Provisional Assessment Set Aside Under CPR 3.1(7) For Material Breach Of Filing Duty

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The Senior Courts Costs Office’s decision in MH v CH (By Her Litigation Friend the Official Solicitor) [2026] EWHC 238 (SCCO) confirms that CPR 3.1(7) remains available to challenge a Provisional Assessment Order where the receiving party failed to file the paying party’s complete Points of Dispute.

Background

This matter arose from detailed assessment proceedings following a costs order made in the Court of Protection. By an order dated 15 December 2023, HHJ Hilder ordered MH to pay 50% of CH’s costs. CH’s solicitors, Irwin Mitchell LLP, prepared a Bill of Costs totalling £19,233.93, which was served on MH on 1 November 2024.

On 22 November 2024, MH served his Points of Dispute by email. These comprised four documents: Precedent G; a Note in Relation to Points of Dispute; an annotated Bill of Costs; and a skeleton argument from a prior Court of Appeal application. Replies were served by CH on 13 December 2024.

On 15 April 2025, CH lodged the N258 bundle with the court to initiate a provisional assessment. It was later accepted by CH’s solicitor, Mr Cruise, in a witness statement dated 21 May 2025, that the bundle omitted two of the four documents comprising MH’s Points of Dispute — the annotated Bill of Costs and the Note — and also omitted MH’s open offer. Mr Cruise conceded the omission was a mistake and that all documents should have been filed.

Unaware of the omission, Deputy Costs Judge Bedford conducted the provisional assessment on 29 April 2025. The resulting Written Reasons repeatedly noted an inability to understand many of the objections. The judge later attributed this difficulty entirely to the absence of the complete documentation. The Provisional Assessment Order (PA Order) was issued the same day.

On 6 May 2025 — within seven days of the PA Order — MH issued an application to set aside the PA Order pursuant to CPR 3.1(7). MH declined to request an oral hearing under CPR 47.15(7). The application was heard on 24 June 2025. During that hearing a discrete question arose as to whether a provisional assessment order is final or interim prior to expiry of the 21-day period in CPR 47.15(7); the judge adjourned to receive written submissions on that point. Written submissions were filed by CH on 23 July 2025 and by MH on 28 July 2025, culminating in this judgment.

Costs Issues Before the Court

The central issue was whether a paying party may apply to set aside a Provisional Assessment Order under CPR 3.1(7) within seven days of its issue, as an alternative to requesting an oral hearing under CPR 47.15(7). Counsel informed the judge that there was no binding authority — indeed no authority at all — on this point, and the judge determined that a written judgment would therefore be of utility. Subsidiary questions included: whether the court’s general case management powers remain available where a specific procedural rule exists; whether the failure to file a complete set of Points of Dispute meant the decision was not a provisional assessment in the sense contemplated by CPR 47.15(7); and, if CPR 3.1(7) was engaged, whether the threshold test was met. The application also raised, but adjourned for later determination, issues of alleged misconduct under CPR 44.11 and whether a prior payment constituted a concluded agreement on costs.

The Parties’ Positions

MH, acting in person, argued the PA Order was null and void because CH had failed to comply with the mandatory requirements of PD 47 para 14.3 by not filing his full Points of Dispute and open offer with the N258 bundle. He submitted CPR 3.1(7) was available and drew analogies with other CPR set-aside mechanisms — including the power to set aside a default costs certificate under CPR 47.12(1) — to support the proposition that the rules provide redress where an order is obtained irregularly. MH contended that CPR 47.15(7) was not engaged because the provisional assessment process had never been properly initiated.

CH, represented by Mr Moss of Counsel, argued that the specific and self-contained code for challenging a provisional assessment was CPR 47.15(7), which required a request for an oral hearing within 21 days. MH’s failure to do so meant the PA Order had become binding. CH submitted that the general power in CPR 3.1(7) could not circumvent this specific rule, relying on the principle of lex specialis and the authorities of Terry v BCS Corporate Acceptances Ltd [2018] EWCA Civ 2422 and Deutsche Bank AG v Unitech Ltd [2016] EWCA Civ 119. In the alternative, CH argued that even if CPR 3.1(7) was available, the PA Order was a final order, the threshold was not met, and the circumstances fell woefully short of exceptional.

The Court’s Decision

Deputy Costs Judge Bedford granted the application and set aside the PA Order.

Availability of CPR 3.1(7)

The judge rejected the submission that CPR 47.15(7) ousted the general case management powers. She held that the two rules could operate cohesively, addressing different types of challenge. CPR 47.15(7) provides a mechanism to review items within a provisional assessment — decisions on hourly rates, individual bill items and the like. These items are defined by the four corners of the Points of Dispute, as illuminated by Ainsworth v Stewarts Law LLP [2020] EWCA Civ and PD 47 para 8.2. A jurisdictional challenge to whether the assessment was correctly constituted at all falls outside the scope of CPR 47.15(7) and may be addressed under CPR 3.1(7). She noted that CPR 3.1(1) expressly provides that the court’s case management powers are available in addition to those granted by specific rules, and that PD 47 para 14.2(2) — which lists the CPR provisions excluded from the provisional assessment regime — does not exclude CPR 3.1.

The authorities of Terry and Deutsche Bank were distinguished on the same ground: each confirmed that a general rule gives way to a specific rule, but that principle has no application where the two rules address distinct questions and operate in tandem.

Failure to File Complete Documents

The judge found that CH’s failure to file the complete Points of Dispute was a material breach of the mandatory obligation in PD 47 para 14.3(e). Critically, the provisional assessment is initiated unilaterally by the receiving party and the paying party has no involvement or control over what is filed. She drew an analogy to the duty of candour in without-notice applications: the duty on the receiving party to file all documents comprising the paying party’s Points of Dispute is stringent. She observed that Points of Dispute spread across multiple documents — including annotated bills and supplementary notes — are the norm rather than the exception in costs practice.

Because PD 47 para 14.3(e) had not been complied with, the resulting decision was not a provisional assessment in the sense contemplated by CPR 47.15(7). The consecutive steps in the workflow from CPR 47.15(4) onwards — including the 21-day period for requesting an oral hearing — were not properly engaged. The time for requesting a compliant oral hearing under CPR 47.15(7) and (8) had not properly begun to run.

Application of the CPR 3.1(7) Test

Applying the principles in Tibbles v SIG PLC [2012] EWCA Civ 518, and having regard to Lewison LJ’s observations in Vodafone Group PLC v IPCom GmbH and Co [2023] EWCA Civ 113, the judge found the threshold for exercising CPR 3.1(7) was met. The facts on which the PA Order was made had been misstated through omission — an incontrovertible fact accepted by CH’s own solicitor. The absence of the documents had axiomatically undermined the basis of the judgment, and the application was made promptly within seven days.

The judge declined to determine whether the PA Order was final or interim, finding it unnecessary to do so. The facts comfortably met the higher test of exceptional circumstances applicable to final orders in any event: the receiving party had failed to comply with a mandatory filing requirement in a without-notice context, the court had proceeded on an incorrect basis and wasted time on a flawed process, and a defaulting party ought not to benefit from its own default where the court has been inadvertently misled and a prompt in-time application has been made. For completeness, the judge further held that even if CPR 47.15(7) had been engaged, the same facts constituted exceptional circumstances within the meaning of that rule.

Case Management Directions

She exercised the power under CPR 47.15(6) to remove the matter from the provisional assessment regime, directing that it proceed to a one-day detailed assessment hearing. She concluded that an oral hearing was likely to be required in any event and it was more proportionate to proceed directly. All outstanding issues — including the CPR 44.11 misconduct application and the question of any concluded costs agreement — were adjourned to that hearing.

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CPR 63.26(2) | IPEC Costs Order Quashed Where ‘Unreasonable Conduct’ Finding Overstated Application’s Lack Of Merit

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The Court of Appeal’s decision in Costa v Dissociadid Ltd [2025] EWCA Civ 1475 establishes that findings of “unreasonable behaviour” under CPR 63.26(2) cannot rest on overstated characterisations of applications as “so lacking in merit” where key arguments have real prospects of success.

Background

The case concerned an appeal against three case management orders made by HHJ Hacon in the Intellectual Property Enterprise Court (IPEC). The underlying dispute involved a claim by Sergio Mendes Costa, a litigant in person, for copyright infringement against Dissociadid Ltd and Ms Chloe Wilkinson. The Defendants operated a YouTube channel for raising awareness of dissociative identity disorder, and Mr Costa alleged infringement of his copyright in certain works he provided, including a text used as a “Disclaimer” on the channel. The Defendants counterclaimed for damages, alleging that Mr Costa’s takedown requests to YouTube constituted the tort of causing loss by unlawful means.

In a judgment dated 22 July 2022, HHJ Hacon found that the Defendants had infringed Mr Costa’s copyright in some works. The counterclaim was partially successful, with the judge finding that Mr Costa had made misrepresentations to YouTube regarding his authorship of the Disclaimer. A declaration was made in the order of 10 November 2022 that the counterclaim was successful in relation to URLs disabled by YouTube on or about 25 June 2021 based on takedown requests concerning the Disclaimer. The assessment of the Defendants’ loss under the counterclaim was adjourned to be heard alongside an inquiry into copyright infringement.

Quantum proceedings were initiated by the Defendants in July 2023. Mr Costa defended these proceedings, contending that the scope of the claim was too broad and sought damages for losses outside the scope of the 10 November 2022 Order. By an order dated 19 January 2024, agreed by the parties, HHJ Hacon directed that the question of quantum would be determined on the papers. A subsequent order on 13 June 2024 permitted Mr Costa to provide further written submissions in response to the Defendants’ points of claim.

On 1 July 2024, Mr Costa issued an application (the “1 July Application”). Due to a character limit on the application form, the notice itself only specified an application to strike out parts of the Defendants’ points of claim. However, the attached draft order and supporting witness statement also sought orders for further information and disclosure, and a variation of the 13 June 2024 order. The Defendants opposed the application and sought their costs on the indemnity basis, citing unreasonable conduct.

HHJ Hacon dealt with the application on the papers by an order of 15 July 2024 (the “15 July Order”). The order dismissed the application and required Mr Costa to pay £2,500 in respect of the Defendants’ costs. The judge’s reasons addressed only the strike-out aspect of the application, finding it lacked merit and constituted unreasonable behaviour. He declined to deal with the requests for further information and disclosure, noting they were not specified in the application notice and could be pursued at a future case management conference.

Mr Costa subsequently applied on 19 July 2024 (the “19 July Application”) seeking, amongst other things, the recusal of HHJ Hacon and to set aside the 15 July Order. By an order of 29 July 2024, the judge dismissed the applications to set aside or stay the earlier orders and refused permission to appeal the 15 July Order. He stayed the recusal application pending the outcome of any application to the Court of Appeal. A further application by Mr Costa on 30 July 2024, seeking an extension of time for his final quantum submissions, was not directly addressed in the resulting order of 31 July 2024.

Costs Issues Before the Court

The central costs issue before the Court of Appeal concerned the order for costs made in the 15 July Order. Specifically, the court was required to determine whether HHJ Hacon erred in making an immediate costs order against Mr Costa on the basis that his 1 July Application was “so lacking in merit that it constitute[d] unreasonable behaviour“. This engaged the interpretation and application of CPR 63.26(2), which provides an exception to the general rule in IPEC that costs of an application are reserved to the conclusion of the trial. The appeal also raised issues regarding the procedural fairness of dealing with the application without a hearing and whether the judge should have addressed all parts of the application, including the request for further information, when making the costs order.

The Parties’ Positions

Mr Costa, acting in person, appealed the costs order on several grounds. He argued that:

      • the judge erred in principle by concluding his application was without merit and by penalising him for unreasonable conduct;
      • his arguments regarding the scope of the Defendants’ damages claim, particularly that it sought recovery for losses outside the parameters of the 10 November 2022 Order, were arguable and not so devoid of merit as to justify a finding of unreasonable behaviour; and
      • the judge failed to fully adjudicate the 1 July Application, as he did not consider the Part 18 request for further information, and therefore the costs order should not have encompassed the entire application.

The Respondents (Defendants), represented by counsel, defended the costs order. They submitted that:

      • the judge, with his extensive experience in IPEC, was in the best position to assess the reasonableness of the application; and
      • the judge was entitled to find the strike-out application unreasonable because it generated unnecessary costs and consumed court resources, irrespective of the ultimate merits of the underlying arguments on quantum.

They supported the judge’s characterisation of the application as lacking in merit and his decision to exercise his discretion under CPR 63.26(2) to make an immediate costs order.

The Court’s Decision

The Court of Appeal allowed the appeal in relation to the costs order. The lead judgment, given by Lord Justice Zacaroli (with whom Lord Justice Newey agreed), held that the judge’s conclusion that the application was “so lacking in merit” that it constituted unreasonable behaviour was unsustainable. The court found that one of Mr Costa’s key arguments – that the Defendants’ quantum claim sought damages for losses falling outside the scope of the 10 November 2022 declaration – could not be described as so lacking in merit to justify a finding of unreasonable conduct. This was particularly so given the Defendants’ own shifting position on this point during the appeal.

Furthermore, the Court of Appeal found that the judge had erred by not addressing the Part 18 aspect of the 1 July Application. As the application, when viewed as a whole including the draft order and evidence, clearly encompassed a request for further information, the judge should have considered this element. The failure to do so meant that the costs order, which was made in respect of the entire application, was flawed. The court held that any justified costs order should have been apportioned to reflect only the costs of resisting the strike-out aspect.

Lord Justice Arnold delivered a dissenting opinion on the costs issue. He would have dismissed the appeal on ground 7, arguing that the judge was entitled, as a case management decision, to find the making of the strike-out application itself constituted unreasonable behaviour due to the costs and resources it consumed, regardless of the underlying merits. He emphasised the judge’s wide discretion and experience in managing IPEC proceedings.

Ultimately, the majority allowed the appeal on the costs issue. The costs order in the 15 July Order was set aside. The case was remitted to the IPEC for the recusal application to be considered first, followed by directions for the future conduct of the quantum proceedings, with the court noting it was difficult to see how quantum could be fairly determined without a hearing.

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SCCO Guide 2025 Published

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The Senior Courts Costs Office has published its 2025 Guide, with a foreword by Lord Justice Colin Birss, Deputy Head of Civil Justice.

The 2025 edition supersedes the 2023 Guide and reflects procedural reforms introduced by the Civil Procedure (Amendment) Rules 2024 and the consolidation of electronic filing provisions into Practice Direction 5C. It introduces a number of changes impleneted since 2023 affecting Court of Protection costs, detailed assessment procedures, and Supreme Court and JCPC assessments.

Court of Protection fixed costs increases

From 1 April 2024, all Court of Protection fixed cost categories were increased by approximately 27%, following a review by the SCCO and the Office of the Public Guardian (OPG). These revised rates reflect inflation and administrative cost pressures.

Solicitors’ costs in court proceedings:

      • Category I (deputy appointment) – now £1,204 (plus VAT), up from £950

      • Category II (trustee applications) – now £633 (plus VAT), up from £500

      • New Category III: applications under Practice Direction 9D paragraph 4, set at £633 (plus VAT)

Deputy remuneration:

      • Annual management fee (first year) – now £2,116 (plus VAT), up from £1,670

      • Annual management fee (subsequent years) – now £1,672 (plus VAT), up from £1,320

      • Health and welfare deputy maximum – now £703 (plus VAT), up from £555

      • Report preparation – now £336 (plus VAT), up from £265

      • Basic HMRC tax return – now £317 (plus VAT), up from £250

The threshold for the 4.5% alternative fee calculation has increased from £16,000 to £20,300 net assets. Deputies with assets below this threshold are no longer permitted to apply for assessed costs.

The 2025 Guide also clarifies that complex tax returns are now treated as specialist services requiring separate procedures rather than falling within the fixed fee categories.

Costs following P’s death | new clarification

The 2025 Guide provides detailed new guidance on costs procedure following P’s death, representing one of the most significant clarifications in this edition:

      • Deputies do not require a further Court of Protection order to seek SCCO assessment for costs incurred during P’s lifetime.

      • The SCCO has no jurisdiction to assess post-death costs under the COP Rules 2017, as the COP’s substantive jurisdiction ends with P’s death.

      • Deputies may request suspension of assessment and can agree costs directly with personal representatives.

      • The Deputy must inform the SCCO in writing whether an agreement has been reached and whether the bill is to be withdrawn or assessment continued.

      • Clear procedures are set out for handling pending assessments upon P’s death.

The Guide also notes that the SCCO may require evidence of death and of the personal representatives’ authority before proceeding.

Court of Protection payments on account | updated guidance

Section 27.17 of the 2025 Guide provides updated rules on interim payments:

      • Interim bills may be rendered provided that the cumulative total does not exceed 75% of work in progress or 75% of the OPG estimate, whichever is lower.

      • If overpaid, deputies must reimburse P’s estate within 28 days of the final costs certificate being issued.

The Guide confirms that this 75% cap applies cumulatively across all interim invoices, and any excess must be repaid even if caused by later disallowance at assessment.

Provisional assessment procedure | change to offers

There has been an important change to the handling of offers in provisional assessments. Offers must now be filed and clearly marked in the description of the document rather than being submitted in sealed envelopes.

This brings SCCO practice into line with CE-File protocols across the Royal Courts of Justice, eliminating the use of sealed envelopes entirely.

Supreme Court and JCPC assessments | new rules and portal filing

Section 36 of the 2025 Guide has been comprehensively updated to reflect new procedural frameworks:

      • Supreme Court assessments are now governed by the Supreme Court Rules 2024 (previously the 2009 Rules).

      • JCPC assessments are governed by the Judicial Committee (Appellate Jurisdiction) Rules Order 2024, with updated Part 7 (previously Part 6).

      • Bills of costs must now be filed and served via the Supreme Court portal (new mandatory requirement).

      • Points of Dispute must also be filed through the portal, not by email.

      • Updated Practice Direction references include PD 13 paragraphs 13.40–13.42 for extensions and 13.50–13.54 for reviews.

These changes align Supreme Court and JCPC procedure with digital filing obligations now in force across all appellate jurisdictions.

Electronic filing | updated practice direction

References to electronic filing have been updated from Practice Direction 51O to Practice Direction 5C, consolidating the e-filing rules following the conclusion of the pilot scheme.

This aligns the SCCO with the Civil Procedure Rules’ new structure, under which PD 5C now governs all electronic filing in the High Court and SCCO.

Regional Costs Judges | updated appointments

The list of Regional Costs Judges has been substantially revised to reflect appointments, retirements, and reassignments across all circuits.

Notably, District Judge Besford (SiR) has been added for Hull, with further changes in the North Eastern, Northern, Midlands, Wales, South Eastern and Western Circuits. The Guide provides an up-to-date list of authorised judges.

Group listing suspended

The 2025 Guide confirms that group listing remains suspended.
Cases that would previously have been group listed (shorter detailed assessments) are now listed in the same manner as other detailed assessments before a Costs Judge or Deputy Costs Judge.

This position remains under administrative review by the SCCO.

You can download the full 2025 SCCO Guide here.

Court Of Appeal Confirms That Pre-Action Applications Constitute ‘Proceedings’ for Costs Purposes”

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The Court of Appeal’s decision in Gotti v Perrett [2025] EWCA Civ 1168 establishes that all pre-action applications constitute “proceedings” for costs purposes, closing a potential loophole across civil litigation.

Background

The dispute originated from an application for an interim injunction made by the Appellant, Christian Gotti, against the Respondent, Karen Perrett, under the Protection from Harassment Act 1997. The application was issued at Worcester County Court on 4 July 2023 using Form N16A, the general application form for an injunction under CPR Part 23. The application was listed for a contested hearing on 3 August 2023, where the Appellant was represented by counsel and the Respondent appeared in person. Following the hearing, an interim injunction was granted.

The injunction order contained significant procedural defects. No undertaking was given by the Appellant to issue a claim form, as required by the then-in-force CPR PD25A, paragraph 4.4(1). The court also failed to give directions for the issue of a claim form. Furthermore, no cross-undertaking in damages was offered by the Appellant or recorded in the order, despite the Respondent’s evidence that she would suffer financial loss. A penal notice was included on the face of the order. No claim form was ever issued by the Appellant.

The application was later acknowledged by the Appellant himself to be “deeply misconceived” [§20, §26] for multiple reasons: the county court lacked jurisdiction for defamation claims; interim injunctions are unavailable in defamation where the defendant seeks to defend; the PfHA 1997 lacked jurisdiction as the Appellant lived in Scotland; and Article 10 ECHR issues were not addressed.

On 27 February 2024, the Respondent issued an application to discharge the injunction and for damages and costs. Upon receipt of this application, the Appellant performed what the Court described as a “spectacular volte face” [§25], conceded that his application for the injunction was “deeply misconceived” and accepted that the order should never have been granted. He consented to its immediate discharge. However, he argued that as no Part 7 or Part 8 claim form had ever been issued, there were no valid “proceedings” before the court. Consequently, he contended that the court had no jurisdiction to make orders for costs or damages in favour of the Respondent.

Costs Issues Before the Court

The central costs issue was whether the court possessed the jurisdiction to make ancillary orders for costs and damages upon the discharge of an injunction where: (i) no undertaking to issue a claim form was given or recorded; (ii) no cross-undertaking in damages was offered or recorded; and (iii) no claim form was ever subsequently issued. The Appellant’s position was that the absence of a substantive claim form meant the injunction application was a “nullity” and that no “proceedings” existed in which the court could exercise its powers.

A secondary issue was whether, if the court found there were no valid proceedings, it could invoke CPR rule 3.10 to remedy the procedural error of using Form N16A instead of the required Part 8 Claim Form (N208) for a claim under the Protection from Harassment Act 1997.

The Parties’ Positions

The Appellant’s Position: The Appellant argued that the court had no jurisdiction. He submitted that “proceedings” are started only when the court issues a claim form at the request of a claimant, pursuant to CPR rule 7.2(1). As no Part 7 or Part 8 claim form was ever issued, there were no proceedings. He contended that the use of Form N16A did not constitute a prescribed originating process for this type of claim and that the entire process was therefore a nullity. He relied on authorities such as Citation plc v Ellis and Peterson v Howard de Walden Estates Ltd to support the proposition that costs cannot be awarded without a claim form. He further argued that CPR rule 3.10 could not be used to correct a procedural error that occurred before the commencement of any proceedings.

The Respondent’s Position: The Respondent argued that the court did have jurisdiction. She contended that the application for an interim injunction, properly issued under CPR Parts 23 and 25, constituted “proceedings” to which the Civil Procedure Rules applied. She relied on the equitable jurisdiction of the court to grant injunctions, as confirmed in Fourie v Le Roux, and the wide interpretation of “proceedings” in section 147 of the County Courts Act 1984, which “includes both actions and matters.” She also pointed to the court’s costs jurisdiction under section 51 of the Senior Courts Act 1981, which applies to “costs of and incidental to all proceedings.” In the alternative, she argued that the error in using the wrong form could and should be remedied under CPR rule 3.10, citing authorities such as Hannigan v Hannigan and Reddy v General Medical Council.

The Court’s Decision

The Court of Appeal dismissed the appeal, upholding the decisions of the courts below. Both Lewison LJ (in granting permission) and HHJ Salmon described the Appellant’s argument as “an affront to common sense” [§5-6]. Lord Justice Cobb, giving the lead judgment, held that the application for an interim injunction constituted “proceedings” within the meaning of the relevant statutes and rules. The court’s reasoning was based on several key points.

    • First, the court was exercising a statutory and equitable jurisdiction under section 38 of the County Courts Act 1984 when it granted the injunction. This power exists in “any proceedings,” a term which is not restricted to post-claim-form activity. The court endorsed the view that “proceedings” include any application with which the court is seised and in respect of which it is asked to make orders. The fact that the application was procedurally flawed and “deeply misconceived” did not mean it was a nullity; it simply meant the proceedings were brought in an inappropriate form.
    • Second, the court’s costs jurisdiction under section 51 of the Senior Courts Act 1981 applies to “all proceedings,” which must be given the same wide interpretation. Civil courts routinely make costs orders on pre-action interim injunction applications.
    • Third, disapplying the CPR and the overriding objective to a pre-action injunction application would be absurd, as such applications can have draconian consequences for respondents and must be dealt with justly. The Appellant’s concession that the court had jurisdiction to make and subsequently discharge the injunction was found to be inconsistent with his argument that the process was a nullity.

The court relied heavily on Lord Scott’s judgment in Fourie v Le Roux [2007] UKHL 1, which established that pre-action freezing orders are “not a nullity” and have “immediate effect” even without substantive proceedings [§58].

On the secondary issue, the court held that, if necessary, CPR rule 3.10 could be invoked to remedy the error of using Form N16A instead of Form N208. The error was one of procedure after proceedings had commenced, and it could be corrected to prevent the Appellant from benefiting from his own failure and to further the overriding objective. The case of Peterson was distinguished, as it concerned an error occurring before any proceedings were commenced.

In conclusion, the court found that the judges below were correct. The court had jurisdiction to make orders ancillary to the discharge of the injunction, including orders for costs and damages. The appeal was dismissed.

Wider implications beyond injunctions for costs jurisdiction in civil litigation

1. Pre-action applications generally The principle that “proceedings” under s.51 SCA 1981 encompasses any application where the court is asked to exercise jurisdiction extends to all pre-action remedies, not just injunctions. This would cover:

    • Pre-action disclosure applications (CPR r.31.16)
    • Norwich Pharmacal orders
    • Pre-action inspection orders
    • Any application under CPR Part 23 before a claim form

2. Procedurally defective proceedings The ruling that procedural errors don’t negate costs jurisdiction applies broadly. If parties commence any type of application using the wrong form or procedure, they cannot later rely on their own error to escape costs consequences. This prevents tactical exploitation of procedural mistakes across all litigation contexts.

3. Defining “proceedings” for costs purposes The Court’s expansive interpretation of “proceedings” – as any matter where the court is “seised” and asked to make orders [§69] – affects costs jurisdiction throughout the CPR. This could impact:

    • Costs in struck-out claims
    • Discontinued proceedings
    • Applications dismissed for procedural non-compliance
    • Stand-alone applications without underlying claims

4. CPR r.3.10 application The liberal approach to remedying procedural errors under CPR r.3.10 has implications for all litigation where the wrong form or process is used, confirming courts will prevent parties benefiting from their own procedural failures.

5. Section 51 jurisdiction The confirmation that s.51 SCA 1981 costs jurisdiction applies to “all proceedings” reinforces the court’s broad discretion over costs in any matter before it, strengthening the principle that costs follow the event regardless of procedural irregularities.

This decision essentially closes a potential loophole across civil litigation where parties might attempt to avoid costs liability through procedural technicalities.

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CPR 38.6: Discontinuance And Costs – The Legal Principles

Discusses costs jurisdiction where proceedings are discontinued without substantive claims

Who Should Pay The Costs Of A Withdrawn And Undetermined Application?

Court of Appeal case examining costs jurisdiction for withdrawn applications and the court’s discretion under CPR 44.2

Recoverability Of Inquest Costs In A Civil Claim

Addresses the principles of costs recovery in proceedings that precede formal claims

CPR 45.8 Fixed Costs Apply To Interim Applications From Date Of Provisional Track Allocation

High Court decision on costs jurisdiction for interim applications

Part 20 Defendant Ordered To Pay 1/3rd Of Defendant’s Costs Of Defending The Action

Examines the court’s discretion under Section 51 Senior Courts Act 1981 to award costs in complex procedural scenarios

Court of Appeal: Fixed Costs Do Not Apply To Appeals But QOCS Does

Discusses Section 51 SCA 1981 and the court’s general discretion over costs in different procedural contexts

CPR 45.8 Fixed Costs Apply To Interim Applications From Date Of Provisional Track Allocation

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The High Court’s decision in Mazur & Anor v Charles Russell Speechlys LLP [2025] EWHC 2341 (KB) confirms that CPR 45.8 fixed costs apply from the moment of provisional Intermediate Track allocation.

Background

The case originated from a claim brought by the Respondent law firm, Charles Russell Speechlys LLP, to recover unpaid legal fees totalling £54,263.50 from the Appellants, Mrs Julia Mazur and Mr Jerome Stuart. Goldsmith Bowers Solicitors (GBS) was instructed to pursue the debt recovery. A claim was issued, and the Appellants subsequently filed a Defence and Counterclaim. The Claim Form was signed by GBS, and the Particulars of Claim were signed by Peter Middleton, identified as the “Head of Commercial Litigation” at GBS.

The Appellants raised an issue regarding Mr Middleton’s authorisation, as he did not hold a current practising certificate. They applied for directions, seeking an order that the Respondent replace Mr Middleton with a qualified solicitor. The application was opposed. Acting on his own motion, Deputy District Judge Campbell ordered a stay of proceedings. He found evidence that Mr Middleton was engaging in “reserved activity” under the Legal Services Act 2007 by conducting litigation. The order required any application to lift the stay to be supported by a statement from a partner providing a full explanation. If no application was made within three months, the claim would be struck out automatically.

The Respondent applied to lift the stay. The matter came before His Honour Judge Simpkiss. The initial hearing was adjourned, and further submissions were heard on 17 December 2024. In the interim, on 2 October 2024, Mr Middleton’s involvement ceased, and he was replaced by Lisa Adkin, a qualified solicitor. On 18 November 2024, a director at GBS, Mr Robert Ashall, made a self-report to the Solicitors Regulation Authority (SRA) concerning Mr Middleton’s employment. The SRA decided not to investigate on 2 December 2024.

Costs Issues Before the Court

The primary costs issue before the court was whether the Appellants should be liable for the Respondent’s costs of the application to lift the stay, which had been summarily assessed at £10,653. This award was made following the judge’s decision to lift the stay. The appeal raised two core costs-related issues: firstly, whether the judge erred in his interpretation of the Legal Services Act 2007, which formed the basis for finding the Appellants’ challenge unsuccessful and thus liable for costs; and secondly, whether the judge had the power to award costs in that amount given that the claim had been allocated to the Intermediate Track, which attracts a fixed costs regime for interim applications.

The Parties’ Positions

The Appellants argued that the judge erred in law by concluding that Mr Middleton was entitled to conduct litigation under the supervision of an authorised solicitor. They contended this misinterpretation of the Legal Services Act 2007 was the foundation for the costs order against them. They further submitted that the case was subject to CPR Part 45 as it had been allocated to the Intermediate Track. Consequently, the recoverable costs for an interim application were fixed at £333 plus a court fee of £303, pursuant to CPR 45.8. They also argued the Respondent had failed to comply with CPR 45.63 by not filing a completed Precedent U form.

The Respondent argued that the judge was entitled to make the costs order as they were the successful party on the application. They contended the fixed costs regime under CPR Part 45 did not apply because the claim was only formally allocated to the Intermediate Track at the conclusion of the hearing before HHJ Simpkiss. They also submitted that their costs statements, though not on a Precedent U form, substantially complied with the rules.

The Court’s Decision

The High Court allowed the appeal and quashed the costs order. On the first issue, the court found that HHJ Simpkiss had erred in law by relying on the SRA’s letter and concluding that section 21(3) of the Legal Services Act 2007 permitted an employee to conduct litigation under supervision. The court held that the LSA draws a clear distinction between authorised persons and their employees. An employee is not entitled to conduct a reserved legal activity merely by virtue of their employment by an authorised entity; they must themselves be authorised or fall within a specific exemption. The SRA’s interpretation in its letter was incorrect, and the judge’s reliance on it was a legal error that vitiated the basis for the costs award.

On the second issue, the court held that the case was subject to the fixed costs regime in Section VII of CPR Part 45 because it had been provisionally allocated to the Intermediate Track. CPR 45.8 therefore applied, limiting the recoverable costs for an interim application to the fixed sum of £333 plus the court fee of £303. The judge had not identified any “exceptional circumstances” under CPR 45.9 that would justify departing from this fixed cap. The award of £10,653, which was based on counsels’ fees, therefore exceeded the court’s powers. While the Respondent’s costs statement was found to be in substantial compliance, this did not alter the application of the costs cap.

The court rejected the appellants’ argument that no costs should be payable due to non-compliance with CPR 45.63. Although the respondent had not used a Precedent U form, their cost statements provided sufficient detail. The court found substantial compliance with the rule, noting the appellants suffered no disadvantage from the alternative format.

The court varied the order of HHJ Simpkiss to “no order as to costs” to reflect the fact that while the application to lift the stay was correctly granted (as Mr Middleton was no longer involved), the Respondent’s primary legal argument on the point had been erroneous. The court declined to make any other orders, such as striking out the claim or referring individuals to the SRA, leaving any further regulatory action to the SRA’s discretion.

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CPR 45.29J: Master Wrong To Set “Low Bar” To Escaping Fixed Costs – Court of Appeal decision on exceptional circumstances under CPR 45.29J, explaining the high threshold required to escape fixed costs regime

The Extended Fixed Recoverable Costs Regime | 18 Months On – Analysis of CPR 45.9 exceptional circumstances provisions and strategic approaches to fixed costs regimes

Allocation to Multi-Track Automatically Disapplies Fixed Costs Regime – High Court decision on how track allocation affects fixed costs regime application under CPR 45.29B

CPR 45.29J | Exceptional Circumstances – High Court guidance on exceptional circumstances test for escaping fixed costs in portal cases

Fixed costs under Section III of CPR 45: is there any escape? – Detailed analysis of attempts to escape fixed costs regime through exceptional circumstances arguments

Points Of Dispute Must Identify Specific Items Under Challenge

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Background

The appeal arose from a detailed assessment of costs following the settlement of personal injury proceedings. The underlying claim concerned a road traffic accident on 18 September 2019 between Mr Paul Ward (the Appellant/Claimant) and Mr Gagandeep Rai (the Respondent/Defendant). The Respondent admitted liability for the accident, though causation and quantum remained disputed. The substantive proceedings were settled on 11 January 2023 by way of a Part 36 offer for £546,984.

On 3 August 2023, the Appellant commenced detailed assessment proceedings. Item 39 of the Appellant’s Bill of Costs claimed 134.1 hours for work done on documents, itemised across 24 pages in Schedule 2 to the Bill, comprising 418 individual entries detailing dates, nature of work, fee earner, and time spent.

The Respondent served Points of Dispute on 30 August 2023, advancing 25 points. Point 23 challenged Item 39, making various general criticisms about excessive time claimed, unnecessary administrative entries, and duplicative work. Crucially, Point 23 stated that the Respondent would “rely on an annotated documents schedule of objections” but offered a reduction to 68 hours 12 minutes without identifying specific challenged items or providing detailed grounds.

The Appellant served Replies on 4 January 2024, arguing that Point 23 should be dismissed as non-compliant with Practice Direction 47, paragraph 8.2(b), citing Ainsworth v Stewarts Law LLP [2020] EWCA Civ 178. The Appellant contended that the Point of Dispute contained no specific challenges, failed to identify bill entries, and lacked the mandatory nature and grounds of dispute. Despite this objection, the Appellant offered 130 hours for Item 39.

A two-day detailed assessment hearing was listed for 5-6 August 2024. At approximately 4:15pm on 31 July 2024, the Respondent filed and served the annotated document schedule referenced in Point 23. This schedule, for the first time, identified specific items in dispute and categorised objections, offering a primary case of 58.5 hours and an alternative of 58.8 hours.

During the hearing on 5-6 August 2024, Deputy Costs Judge Friston determined various preliminary and general points before addressing the contentious Point 23. The Judge declined to strike out Point 23 and permitted the Respondent to rely on the late-served annotated schedule, adjourning the assessment to a third day. The adjourned hearing took place on 8 November 2024, where the Judge assessed the Appellant’s Bill at £89,032.62 with £8,234.91 in interest.

Costs Issues Before the Court

The primary costs issue before Mrs Justice Hill was whether Deputy Costs Judge Friston had erred in his case management decisions regarding Point 23 of the Respondent’s Points of Dispute. This encompassed two interrelated questions: first, whether Point 23 should have been struck out for non-compliance with Practice Direction 47, paragraph 8.2(b) and the principles established in Ainsworth; and second, whether the Judge was correct to permit the Respondent to rely on the annotated document schedule served just two working days before the detailed assessment hearing.

The appeal engaged fundamental principles about the conduct of detailed assessment proceedings under CPR Part 47. Central to the dispute was the interpretation and application of paragraph 8.2(b) of Practice Direction 47, which requires Points of Dispute to be “short and to the point” and to “identify specific points, stating concisely the nature and grounds of dispute.” The court had to consider whether Point 23’s general assertions without itemisation satisfied these mandatory requirements.

A further issue concerned the proper exercise of discretion under paragraph 13.10(2) of Practice Direction 47, which permits the court to disallow variations to Points of Dispute or allow them subject to conditions, including costs sanctions. The court needed to determine the scope of this discretion and whether the Judge had exercised it in accordance with the overriding objective.

The appeal also raised questions about the duties of parties in detailed assessment proceedings, specifically whether the Appellant had any obligation to chase the Respondent for the promised annotated schedule, and whether the late service of that schedule constituted an “ambush” warranting its exclusion.

The Parties’ Positions

The Appellant advanced five grounds of appeal, with grounds 1-3 challenging the refusal to strike out Point 23 and grounds 4-5 challenging the permission to rely on the schedule. On Ground 1, the Appellant argued that Point 23 failed to comply with paragraph 8.2(b) as interpreted in Ainsworth, making only general assertions without identifying specific items or stating why individual items were disputed. The Appellant relied on several authorities where non-compliant Points of Dispute had been struck out, including O’Sullivan v Holmes and Hills LLP [2023] EWHC 508 (KB), St Francis Group 1 Ltd & Ors v Kelly & Anor [2025] EWHC 125 (SCCO), and Christodoulides v CP Christou LLP [2025] EWHC 214 (SCCO).

Regarding Ground 2, the Appellant contended that the Judge misdirected himself by finding that a “fairly broad-brush assessment” could have been conducted based on Point 23 alone. The Appellant argued this was inappropriate in “detailed” assessment proceedings where the paying party has the right to descend into whatever level of detail they wish.

On Ground 3, the Appellant submitted that the Judge wrongly criticised the Appellant for not chasing the Respondent for the annotated schedule. Relying on Barton v Wright Hassall LLP [2018] UKSC 12 and Woodward & Anor v Phoenix Healthcare Distribution Ltd [2019] EWCA Civ 985, the Appellant argued there was no duty to assist an opponent, as this could deprive a party of legitimate tactical advantages.

The Respondent argued that whether to strike out Point 23 was within the Judge’s discretion, which was “unfettered” and could involve marking displeasure through costs orders. The Respondent explained the delay in serving the annotated schedule as being due to ongoing settlement negotiations. Mr Lyons submitted that the types of objections in the schedule were “fairly obvious” to any costs practitioner and that many points were anticipated in the original Point 23. He emphasised that the Judge had wide powers under paragraph 13.10(2) to allow variations subject to conditions.

On the duty to chase issue, the Respondent supported the Judge’s view that there should have been liaison between the parties to ensure proper preparation for the assessment. The Respondent argued that both parties knew a further document was required and both were at fault for not ensuring it was available earlier.

The Court’s Decision

Mrs Justice Hill allowed the appeal, finding that Deputy Costs Judge Friston’s refusal to strike out Point 23 and his decision to allow reliance on the annotated schedule were wrong. The court held that Point 23 was not compliant with paragraph 8.2(b) of Practice Direction 47 or the principles in Ainsworth, as it made only general assertions without indicating which items they related to and failed to identify specific items in the Bill of Costs with clear reasons for dispute.

On Ground 1, whilst the court found Point 23 non-compliant, it noted the Judge had not specifically held it was compliant but rather focused on whether defects could be “cured” by the annotated schedule. The court recognised that whether to strike out non-compliant Points of Dispute involved an evaluative, discretionary question inextricably linked with whether to permit the variation through the annotated schedule.

Regarding Ground 2, the court dismissed this ground, finding the Judge had not misdirected himself. The Judge had recognised that detailed assessment proceedings entitled parties to a line-by-line approach and had not suggested conducting the assessment on a broad-brush basis. Rather, he was observing that the Appellant had been provided with sufficient information to understand broadly what case was being made.

On Ground 3, concerning the duty to chase, the court held it could not fairly criticise the Judge on appeal for this finding as the authorities on which the Appellant relied (Barton and Woodward) had not been raised before the Judge at the relevant time. Applying Allen v Bloomsbury Publishing Limited [2011] EWCA Civ 943, the court found it would be wrong to criticise a judge for failing to consider a point not raised with him.

The court upheld the Judge’s characterisation of his powers under paragraph 13.10(2) as “very wide”, finding this consistent with authorities such as Edinburgh v Fieldfisher LLP [2020] EWHC 862 (QB) and Celtic Bioenergy Ltd v Knowles Ltd [2022] EWHC 1223 (QB). However, the court found the Judge had failed to exercise these powers in accordance with the overriding objective.

Crucially, the court determined that the only reason the detailed assessment went into a third day was because the Judge declined to strike out Point 23 and allowed reliance on the schedule. The Respondent had been on notice of the Appellant’s Ainsworth objection for seven months but took no remedial steps until two working days before the hearing. The reason given for delay – ongoing settlement negotiations – was found to be circular, as settlement was more likely if the Appellant understood the detailed case against him.

The court concluded that the Judge’s decision failed to give sufficient weight to the requirements of paragraph 8.2(b) and Ainsworth, and failed to ensure the paragraph 13.10(2) power was exercised in accordance with the overriding objective of dealing with cases “justly and at proportionate cost”. The additional costs and delay caused by the third day of assessment were inconsistent with saving expense, dealing with cases expeditiously, and enforcing compliance with rules and practice directions.

CPR 44.10 | The Sound of Silence | When A Court Order Is Silent As To Costs

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In the busy world of civil litigation, the wording of a court order is paramount. Every phrase, every comma can have significant implications. But what happens when an order is conspicuously silent on the issue of costs? This isn’t just a minor oversight; it triggers a specific rule – Civil Procedure Rule (CPR) 44.10 – with potentially significant financial consequences for your clients.

The General Rule: Silence Usually Means No Costs

The starting point, and the most critical takeaway, is CPR 44.10(1)(a)(i). It states with stark clarity: “Where a court order does not mention costs no party is entitled to costs in relation to that order”. 

This means if you’ve attended an interim hearing, made an application, and the judge issues an order that simply doesn’t address who pays the costs for that specific event, the default position is that each party bears their own. This principle has been consistently upheld by the courts. For instance, in Griffiths v Commissioner of Police for the Metropolis , it was established that a trial judge generally can’t just go back and add a costs order to an earlier interim order that was silent. More recently, Baltaj Johal & Others v Secretary of State for the Home Department confirmed that CPR 44.10(1)(a)(i) is clear in its effect: if previous orders didn’t mention costs, and no one tried to vary them at the time, the general rule applies – no party gets costs for those specific orders.

When Silence Doesn’t Mean No Costs: The Deemed Order Exceptions

Like many legal rules, CPR 44.10(1) has exceptions, found in CPR 44.10(2). In certain specific circumstances, even if an order is silent on costs, a costs order is “deemed” to have been made, usually for “the applicant’s costs in the case”. This means the applicant can recover those costs if they ultimately win the main litigation. These exceptions include orders:

  • Granting permission to appeal.
  • Granting permission to apply for judicial review.
  • Made on an application made without notice to the other side (an ex parte application).

The logic for the “without notice” exception is clear: the other side wasn’t there to argue about costs, so the applicant’s position is preserved contingently. However, as Baltaj Johal highlighted, if the orders were not made without notice, this exception can’t be relied upon. 

Don’t Confuse Silence with Other Costs Orders

It’s vital to distinguish an order that is “silent as to costs” from orders that explicitly deal with costs, such as:

  • “No order as to costs” / “Each party to pay own costs”: This is an active decision by the court that each side bears its own costs for that stage. CPR 44.10 doesn’t apply because the order isn’t silent.
  • “Costs in the case” / “Costs in the application”: The costs of that interim step will follow the final costs award. 
  • “Costs reserved”: The decision on costs for that stage is deferred. If not later decided, it defaults to “costs in the case” under Practice Direction 44 paragraph 4.2.

Understanding these distinctions is crucial for advising clients accurately.

What About Multiple Applications and Adjournments?

A common scenario involves a hearing dealing with multiple applications. What if the order from that hearing is silent on costs, and some of those applications were adjourned to a later date?

  • For applications determined at the first hearing: If the order is silent, CPR 44.10(1) applies. No party is entitled to costs for those specific applications from that first hearing. That ship has likely sailed. 
  • For applications adjourned at the first hearing: The silence of the initial order does not typically prevent a costs order being made when these adjourned applications are eventually heard and determined at the subsequent hearing. The second hearing is a new event for those specific applications, and costs can (and should) be addressed then.
  • Costs of the adjournment itself: If a party sought costs specifically for the adjournment at the first hearing (e.g., costs thrown away) and the order was silent on that specific request, then CPR 44.10(1) would likely mean no one gets those adjournment costs.

This highlights the need for precision. If an order from a multi-application hearing is globally silent, costs for all determined matters at that point are generally lost.

A Note on Family Proceedings: The Timokhina Distinction

You might encounter the case of Timokhina v Timokhin , where the Court of Appeal discussed a “residual discretion” to make retrospective costs orders even if an earlier order was silent. It’s important to note that Timokhina was a family law case. The Family Procedure Rules (FPR) have a distinct costs regime, notably disapplying the general civil rule that “costs follow the event”. The reasoning in Timokhina appears heavily tied to this specific FPR framework. In general civil proceedings, the stricter interpretation seen in cases like Griffiths and Baltaj Johal is more likely to apply. 

Key Takeaways for Practitioners:

  1. Be Proactive: Always address costs at the conclusion of any hearing or in written submissions for paper determinations. Don’t assume the judge will deal with it unprompted.
  2. Seek Clarity in Orders: Ensure any order accurately reflects the judge’s decision on costs. If an order is drafted and is unexpectedly silent, raise it immediately.
  3. Understand the Limits: The “slip rule” (CPR 40.12) is for accidental omissions, not for introducing a costs order that was never made or considered.
  4. Advise Your Clients: Explain the risk that if an order is silent on costs, those costs may be irrecoverable from the other side.
  5. Adjournments are New Opportunities (for those specific applications): If an application is adjourned, ensure costs for that application are dealt with when it is finally heard. Don’t assume the silence of a previous, broader order covering the initial hearing will dictate the costs of the subsequently heard adjourned matter.

The default position under CPR 44.10 is unforgiving. Vigilance and proactivity are your best defences against the unintended financial consequences of a court order’s silence.

Disclaimer: This blog post is for general information purposes only and does not constitute legal advice. You should seek specific legal advice on any particular matter.

Senior Costs Judge Directs Breakdown Of Premex Fees

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In CXR v Dome Holdings Limited the claimant had engaged Premex, a medical reporting agency, to obtain expert medical reports but did not provide a breakdown of the expert’s fees and the agency’s fees when serving the bill. The defendant challenged this, and the court had to decide whether such a breakdown was required under paragraph 5.2 of Practice Direction 47. Senior Costs Judge Gordon-Saker, following the reasoning in Stringer v Copley (2002) and the decision of His Honour Judge Bird (in Hoskin), ruled that the claimant must provide a breakdown of the fee notes to show the separate fees of the expert and the agency.

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Party Penalised For Failure To File A Costs Schedule In Advance Of Hearing

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In Scenic International Group Limited (In Provisional Liquidation) v Adenaike and others [2024] EWHC 1178 (Ch), the High Court addressed the consequences of the Claimant’s failure to file a schedule of costs in advance of a hearing, as required by Practice Direction 44 on the basis that “it was felt that it was unlikely that the Claimant would succeed in recovering costs and that it was therefore disproportionate to incur the expense of preparing a schedule of costs.” The Court found this approach to be mistaken and the failure to be serious, particularly given that the Defendants were unrepresented and would have been deprived of the assistance of a CLIPS barrister in scrutinising the schedule of costs. Taking this failure into account, along with the proportionality and reasonableness of the costs charged, the Court assessed the costs on a broad brush basis at £23,235, significantly lower than the £36,000 claimed by the Claimant.

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