The High Court’s decision in Cook v Skeggs [2026] EWHC 1132 (KB) addresses the proper approach to costs where a defendant successfully resists both strike out and summary judgment applications but makes a late amendment application at the hearing.
Background
The underlying proceedings concern a possession claim brought by the Respondent, Leonard Cook, following his 2022 purchase of a property from the Appellant, Charlotte Skeggs. The property had been sold to Mr Cook for £250,000, having been purchased by Ms Skeggs in 2017 for £560,000. Mr Cook maintained that the transaction was voluntarily entered into. Ms Skeggs, who described herself as a vulnerable woman, alleged fraud and conspiracy, which Mr Cook denied.
The costs appeal before Mr Justice Sweeting arose from an order made by HHJ Parker on 12 March 2025, requiring Ms Skeggs to pay 80% of Mr Cook’s assessed costs of his strike out and summary judgment application. That application had been issued on 1 May 2024 and was listed for hearing in May 2024, but was not determined until 2 January 2025. At the January hearing, the application was dismissed following amendments proposed on behalf of Ms Skeggs at or shortly before the hearing.
The procedural history leading to the costs determination was somewhat involved. Mr Cook had issued his application for strike out and summary judgment shortly before the first costs and case management conference, which had been listed for 9 April 2024. The application notice did not identify the basis upon which either form of relief was sought and was unsupported by any evidence in support of the summary judgment limb. By an order dated 9 May 2024, HHJ Brown recorded that the CCMC had to be adjourned because the application did not comply with CPR 24.5(1) and had been issued too late to afford Ms Skeggs the 14 days’ notice required by CPR 24.4(5). Mr Cook was directed to amend the application.
The amended application notice remained expressed in generic terms, again failing to articulate the grounds relied upon for strike out or to provide any evidential basis for summary judgment, asserting only that both applications should succeed “as a matter of fact and law”. There then followed a period of procedural uncertainty arising from issues concerning capacity, which were addressed by HHJ Parker at a hearing on 25 October 2024. At that hearing, the court accepted that Ms Skeggs had insufficient material to understand the case advanced in support of Mr Cook’s application, and Mr Cook was granted permission to serve further evidence.
On 8 November 2024, Mr Cook served a witness statement in support of the application. That statement was substantially directed to disputing the factual merits of Ms Skeggs’ case and was therefore concerned principally, although not exclusively, with the summary judgment limb. Ms Skeggs served a re-amended Defence and Part 20 Claim on 6 December 2024, though the accompanying application notice was filed late on 9 December 2024. Mr Cook’s solicitors wrote on 16 December 2024 by way of without prejudice save as to costs correspondence, proposing that if Ms Skeggs confirmed by 4pm on 18 December 2024 that she would serve a further re-amended defence limited to the conspiracy allegation and properly particularised by 4pm on 31 December 2024, Mr Cook would consider consenting to the re-amended pleading and propose that the 2 January 2025 hearing be used for costs and case management directions. That offer also required Ms Skeggs to pay Mr Cook’s costs. No agreement was reached.
On 20 December 2024, Mr Cook served two further witness statements dealing with the factual merits of the case. Skeleton arguments were exchanged on 31 December 2024, at which point it became apparent that Ms Skeggs was abandoning her December application and advancing new proposed amendments relating to the conspiracy allegation, presented in the form of an annex to counsel’s skeleton argument rather than as a formal draft.
At the 2 January 2025 hearing, HHJ Parker dismissed both the strike out and summary judgment applications. In relation to summary judgment, the Judge found that the application would have failed irrespective of the amendments, concluding that Mr Cook had not come close to showing that Ms Skeggs’ factual case was merely fanciful. In relation to the strike out, the Judge permitted re-amendment of the defence, with the exception of references to Mr and Mrs Thorpe at proposed paragraphs 21A and 21B, which were not supported by sufficient pleaded facts. The issue of costs was adjourned to a further hearing on 12 March 2025.
At the 12 March 2025 hearing, HHJ Parker considered five categories of costs. In relation to the strike out and summary judgment application, the Judge ordered Ms Skeggs to pay 80% of Mr Cook’s assessed costs. The Judge also awarded Mr Cook his costs of the 12 March 2025 hearing, summarily assessed at £5,980.44, on the basis that the hearing had been necessitated by the late amendment application made on 2 January 2025. Mr Cook’s costs schedule for the half-day application totalled approximately £123,000, a figure which the Judge described as “fairly stunning”. Given the size of that figure, the Judge declined to embark on summary assessment and directed detailed assessment instead.
Ms Skeggs appealed the costs order with the permission of Sir Stephen Stewart. The appeal was heard by Mr Justice Sweeting on 31 March 2026. In advance of that hearing, Mr Anthony Ashley Wilson, the solicitor with conduct of the proceedings on behalf of Ms Skeggs, provided a witness statement dated 27 March 2026 in support of an application to amend the appeal notice and grounds of appeal. That application arose from a “Costs Breakdown” document attached to Mr Cook’s skeleton argument for the appeal, served after 4pm on 25 March 2026, which Mr Wilson stated he had not previously seen and which gave a total (after deducting draftsman’s fees and applying the 20% deduction in HHJ Parker’s order) of £29,254.56 for the costs of the application — substantially lower than the £123,464.60 figure that had been placed before HHJ Parker. Mr Justice Sweeting permitted Ms Skeggs to rely on Mr Wilson’s evidence and to amend her grounds of appeal accordingly.
Costs Issues Before the Court
The central costs issue on appeal was whether HHJ Parker’s order requiring Ms Skeggs to pay 80% of Mr Cook’s assessed costs of the strike out and summary judgment application was wrong within the meaning of CPR 52.21(3)(a). The appeal raised a number of discrete but related questions.
The first and most fundamental question was whether the Judge had properly identified the successful party on the application. Ms Skeggs had resisted both the strike out and the summary judgment application. The summary judgment application had been dismissed, and the Judge had found that it would have failed even absent the late amendments. The strike out application had also been dismissed, with the Judge permitting re-amendment of the defence in substantially the terms proposed by Ms Skeggs’ counsel. The question was therefore whether, in those circumstances, the Judge had been correct to order Ms Skeggs to pay a substantial proportion of Mr Cook’s costs rather than the other way around.
The second question was whether the Judge had properly distinguished between the two discrete elements of Mr Cook’s application — strike out and summary judgment — when determining the appropriate costs order. Ms Skeggs submitted that the summary judgment application had failed entirely and by a considerable margin, and that the Judge had not given proper effect to that finding. She argued that the Judge had treated the late amendment as having “completely changed the picture” in a way that was inconsistent with his own finding that summary judgment would have failed irrespective of the amendments.
The third question was whether the Judge should have made an issues-based costs order rather than applying a single percentage reduction. Ms Skeggs’ primary position was that she should recover her costs of the summary judgment issue and that Mr Cook should recover his costs of the strike out issue, or alternatively that there should be no order for costs. Mr Cook’s position was that the two applications were closely intertwined and that the Judge had properly exercised his discretion in applying a 20% reduction.
A further issue arose from the amendment application brought by Ms Skeggs in advance of the appeal hearing. That application raised questions about the accuracy of the costs information placed before HHJ Parker at the 12 March 2025 hearing, and whether the presentation of the £123,000 figure as the costs of the application had misled the Judge as to the scale of costs attributable to the strike out and summary judgment elements. Ms Skeggs sought to rely on CPR 44.11, which concerns unreasonable or improper conduct in relation to costs, submitting that Mr Cook’s failure to provide an accurate costs figure until shortly before the appeal hearing may fall within the circumstances covered by that provision.
The Legal Framework
The test on appeal is set out in CPR 52.21(3): the appeal court will allow an appeal where the decision of the lower court was wrong, or unjust because of a serious procedural or other irregularity in the proceedings in the lower court.
In Johnsey Estates v Secretary of State for the Environment, Transport and the Regions [2001] EWCA Civ 535, the Court of Appeal allowed an appeal against the original costs order. Chadwick LJ summarised the applicable principles: costs cannot be recovered except under an order of the court; the question whether to make any order as to costs is a matter entrusted to the discretion of the trial judge; the starting point for the exercise of discretion is that costs should follow the event; the judge may make different orders for costs in relation to discrete issues and should consider doing so where a party has been successful on one issue but unsuccessful on another; the judge may deprive a party of costs on an issue on which he has been successful if satisfied that the party has acted unreasonably in relation to that issue; and an appellate court should not interfere with the judge’s exercise of discretion merely because it takes the view that it would have exercised that discretion differently.
The last of those principles requires an appellate court to exercise a degree of self-restraint. It is not for an appellate court even to consider whether it would have exercised the discretion differently unless it has first reached the conclusion that the judge’s exercise of his discretion is flawed — that is to say, that he has erred in principle, taken into account matters which should have been left out of account, left out of account matters which should have been taken into account, or reached a conclusion which is so plainly wrong that it can be described as perverse.
Whilst the appeal in that case was heard just before the introduction of the Civil Procedure Rules, the general principles set out hold good and it remains the position that appeals against costs involve a high threshold. In particular, an appellate court must not dissect or reinterpret extempore judgments with undue textual scrutiny; the Judge is presumed to have known and applied the correct principles in exercising their discretion unless the contrary is demonstrated.
The Appeal Court’s Analysis
Mr Justice Sweeting concluded that HHJ Parker’s costs order was wrong within the meaning of CPR 52.21(3)(a). The Judge identified several fundamental flaws in the reasoning below.
First, the starting position was that Ms Skeggs was the successful party, having resisted both the strike out on pleading points and summary judgment on the merits of the defence. HHJ Parker had acknowledged that the summary judgment application was “distinctly different” from the strikeout application and would have failed even prior to amendment. The Judge had found that Mr Cook had not come close to showing that Ms Skeggs’ factual case was merely fanciful. Ms Skeggs had therefore demonstrated that she had a sufficient prospect of success, which alone militated against depriving her of her costs.
Second, Mr Justice Sweeting did not consider that it was possible in the circumstances of this case to regard the summary judgment application as merely ancillary to the strikeout or as representing just another way of articulating the same shortcomings in Ms Skeggs’ case. The summary judgment application was advanced on the basis of an assertion that there was no merit in the defence, supported by evidence dealing with the underlying factual matrix, and an invitation to the court to conclude that a conspiracy could not be made out, not simply that the particular species of conspiracy had not been properly identified or was insufficiently particularised. There was plainly a risk, if not a probability, that a substantial amount of work had been carried out in relation to summary judgment rather than the more narrowly defined pleading issue.
Third, HHJ Parker’s conclusion that “the picture had completely changed at the hearing” did not stand up to analysis and was difficult to reconcile with his findings in relation to summary judgment. The Judge had gone no further than saying that there “might” have been a different result on the strike out absent the amendments. It was always apparent that any deficiencies in the pleading could be cured by amendment. Mr Justice Sweeting found it difficult to see how the predictable legal result could have been that Mr Cook could embark upon the hearing on the basis that he would receive his costs irrespective of the outcome.
Fourth, there would have to be a significant reason, grounded in Ms Skeggs’ conduct, for reversing the usual order as to the incidence of costs on interlocutory applications. The relevant conduct in this case was the application for amendment made at the hearing which, while necessary, should have been made earlier in a proper form in accordance with the court’s directions. However, the appropriate way to reflect that conduct was to deprive Ms Skeggs of part of her costs, not to reverse the costs order entirely.
In Matrix Receivables v Must Holdings Limited [2024] EWHC 2167 (Ch), Freedman J observed that the usual order on a summary judgment or strike out application is that the unsuccessful party should pay the costs, in part because of the regime within CPR 44.2(2) and also because of a symmetry: if the applicant is successful, the action comes to an end and the applicant generally recovers the costs of the action; if the strategy does not pay off and the applicant loses, the applicant stands to bear the costs. It is a disincentive to interlocutory applications to know that this starting point exists and operates in practice.
Mr Justice Sweeting noted the practical difficulties in making a costs order on an issues basis, observing that in many cases the judge can and should reflect on the relative success of the parties on different issues by making a proportionate costs order (see Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd [2009] 1 Costs LR 155). Those difficulties are multiplied where the question is whether the winning party on the issue ought to be deprived of costs. The Judge could not see a proper basis on which to make different orders by reference to issues in the circumstances of this case.
Applying the principles in Johnsey Estates, Mr Justice Sweeting concluded that the correct approach was not to seek to recast HHJ Parker’s order but to exercise the discretion afresh. Ms Skeggs was entitled to her costs as the successful party. The appropriate reflection of her late amendment, which related only to the strike out limb, was a proportionate reduction rather than a reversal of the costs order.
The Costs Breakdown Issue
Mr Justice Sweeting also addressed the issue arising from the revised costs breakdown served with Mr Cook’s skeleton argument for the appeal. That document gave a total of £29,254.56 for the costs of the application (after deducting draftsman’s fees and applying the 20% deduction in HHJ Parker’s order), substantially lower than the £123,464.60 figure referred to at the hearing below. The status of the revised schedule was opaque, and it appeared to have been advanced for a tactical purpose shortly before the appeal hearing.
The Judge noted that there was only one verified costs schedule in relation to the summary judgment and strike out application, and that Mr Cook would have to explain a departure from that costs schedule if he asserted in future that the information given to HHJ Parker was inaccurate. However, Mr Justice Sweeting concluded that it was not appropriate or possible to make any findings in relation to conduct on the material before him, particularly in relation to the CPR 44.11 misconduct issue raised by Ms Skeggs.
The Judge expressed sympathy for HHJ Parker given the circumstances in which he had to decide issues of costs. He did not receive Ms Skeggs’ skeleton prior to the hearing and did not appear, initially, to have had the N260. The matter overran so that he had to see whether the court could sit beyond 4:30pm. He candidly accepted that he did not entirely recollect the basis of his earlier order and had to deal with costs at a hearing separate from the hearing to which they related. It appeared he may not have received the assistance that he should have done in relation to the nature of the costs which were being claimed.
Conclusion
Mr Justice Sweeting allowed the appeal and substituted an order under CPR 44.2(2) that Mr Cook pay Ms Skeggs’ costs of the contested strikeout and summary judgment application on the standard basis, subject to a reduction of 25%. The reduction reflected Ms Skeggs’ late amendment application, which related only to the strike out application and should have been made earlier in accordance with the court’s directions.
The Judge also ordered Mr Cook to pay Ms Skeggs’ costs of the appeal, to be summarily assessed. He gave the parties additional time to make written submissions in relation to those costs, noting that Ms Skeggs’ cost schedules appeared to show that all work was done at Grade A rates, which would require an explanation.
The decision reinforces the principle that the starting point for costs orders on interlocutory applications is that the unsuccessful party should pay the costs of the successful party. Where a defendant successfully resists both strike out and summary judgment applications, there must be a significant reason grounded in the defendant’s conduct to justify reversing that usual order. Late amendment may justify a proportionate reduction in the successful party’s costs recovery, but does not ordinarily warrant a complete reversal of costs liability, particularly where the first instance judge has found that one limb of the application would have failed irrespective of the amendment.
Issues Based And Proportional Costs Orders: When Should They Be Made?
The Costs Of Forcing Amendments | Strike-Out Applications And The Bellhouse Principle
CPR 44.2 And The Courts’ Discretion As To Costs
Partial Success, Conduct, Offers And Alleged Exaggeration
Two Way Costs Orders And CPR 44.2(8) | Payments On Account
