CPR 47.20(1) Decides Who Is Entitled to the Costs of Assessment, Not Where the Money Comes From | Detailed Assessment Is Not New Proceedings

The Senior Courts Costs Office held that CPR 47.20(1) addresses which party is entitled to the costs of the detailed assessment proceedings, and does not dictate the source or sources of funds a paying party calls on when the sum they are liable for has crystallised. A consent order adding an interested party with no costs provision was treated as significant. The court also held that detailed assessment in these circumstances is not new proceedings, but in fact part of the existing proceedings which led to the costs order in the Defendants’ favour.

Two copper taps fed from a single brass pipe junction, illustrating entitlement to costs versus the source of funds under CPR 47.20
In Lemos and others v Church Bay Trust Company and others [2026] EWHC 2402 (SCCO), Costs Judge Nagalingam dismissed an application by the second and third claimants, supported by the defendants, seeking to make BCR Legal Assist Limited jointly and severally liable for the defendants’ costs of detailed assessment proceedings, with a 100% inter se contribution. The underlying claim was a section 423 Insolvency Act 1986 action under CR-2016-008560, dismissed at trial in 2023, with costs ordered against the claimants by consent on 18 October 2023. The court held that detailed assessment is not new proceedings but part of the existing action, being a procedure that follows where it is impracticable for the originating court to maintain the case for the purpose of assessing costs the parties cannot agree. From that characterisation, the court concluded that CPR 47.20 cannot be used to alter an existing order for costs, the second and third claimants’ primary liability to pay the defendants’ costs of the main action being incapable of reversal or alteration. CPR 47.20(1) addresses entitlement only, not the source of funds from which a crystallised liability is discharged, and any exception under 47.20(1)(b) is similarly confined to entitlement. The preliminary issue hearing formed part of the detailed assessment, not a severable event generating its own costs order, the overall result dictating the 47.20 order. Significantly, the consent order of 14 August 2025 added the interested party with defined permissions and no costs provision, and the court observed that both the claimants and defendants conveniently neglect to address the fact it was they who consented to that addition with no provision for BCR Legal Assist Limited to be liable for or contribute to the costs of assessment.

[179] Ultimately, the detailed assessment is part of the proceedings under CR-2016-008560 - in which the Defendants hold an order for costs in their favour, payable by the 2nd and 3rd Claimants (having settled costs with the 1st Claimant at an early stage).

Citations

Sirketti v Kupeli & Others [2019] 1 WLR 1235 When considering orders for costs, the court must pursue the overriding objective and make an evaluative judgment as to where justice lies on the facts and circumstances as found.

Travelers Insurance v XYZ [2019] UKSC 48 Involvement in litigation which is wanton and officious, without justification or excuse, may found a non-party costs order; involvement alone, as opposed to control, may be sufficient.

Dymocks Franchise Systems v Todd [2024] 1 WLR 2807 A non-party costs order will ordinarily be made where a non-party funds and controls proceedings, and a party will be regarded as the real party if it is interested in a claim to the exclusion of the interests of the nominal party.

Tescher v Direct Accident Management Ltd [2025] 2 WLR 5064 This case was referenced in relation to the application of the real party test for determining whether a non-party should bear liability for costs.

Key Points

  • A detailed assessment is not a new or freestanding set of proceedings; it is part of the existing action from which the costs order arose, being a procedure that follows where it is impracticable for the originating court to maintain the case for the purpose of assessing costs the parties cannot agree. [166, 167, 180]
  • CPR 47.20(1) addresses entitlement to the costs of the detailed assessment proceedings only; it does not dictate the source of funds a paying party calls upon to discharge a crystallised liability, and any exception under CPR 47.20(1)(b) is similarly confined to the question of entitlement rather than the manner of discharge. [172, 173, 174, 176]
  • CPR 47.20 cannot be used to alter an existing order for costs; the primary liability established by the underlying costs order remains unaffected by the detailed assessment process. [181]
  • A preliminary issue hearing conducted within a detailed assessment is part of that assessment, not a severable event capable of generating its own discrete costs order; the CPR 47.20 order is dictated by the overall result of the assessment, and either party may ask the court to exercise its discretion as to any particular item or point taken at the stage when that overall order falls to be made. [198, 199, 200, 201, 202, 218, 299, 300, 301]
  • Where an interested party is joined to detailed assessment proceedings by consent order and that order contains defined permissions but no provision for the interested party to be liable for or contribute to the costs of assessment, that silence is treated as significant; a party contemplating a later costs claim against a joined interested party must address costs expressly in the joinder order or seek a variation, and restrictions attaching to the interested party in that capacity cannot operate retrospectively to the period before joinder. [310, 311, 312, 313, 314, 349]

[228] "Further, notwithstanding the clearly expressed frustration at the Claimants for agreeing a Defendants' budget that exceeded the ATE indemnity limit, the purpose of the preliminary issues raised in the points of dispute was not some form of stealth attack by the Interested Party on its own insured, but instead the raising of arguments intended to release the Claimants from the straitjacket they had placed themselves in by agreeing the Defendants' budget without seeking any reduction at all - a decision which inevitably influenced the size of the detailed bill of costs submitted for assessment, and exposed the Interested Party and the Claimants to great costs exposure risk that had the Defendants’ budget been subject to negotiation or challenge."

Key Findings In The Case

  • The detailed assessment proceedings are not considered new or separate proceedings but are part of the existing action from which the costs order arose. This process is necessary when it is impracticable for the originating court to maintain the case for the purpose of assessing costs that the parties cannot agree upon. [166, 167, 180]
  • CPR 47.20(1) is concerned solely with the entitlement to the costs of the detailed assessment proceedings and does not dictate the source of funds a paying party uses to discharge a crystallised liability. Any exception under CPR 47.20(1)(b) is similarly confined to the question of entitlement rather than the manner of discharge. [172, 173, 174, 176]
  • CPR 47.20 cannot be used to alter an existing order for costs; the primary liability established by the underlying costs order remains unaffected by the detailed assessment process. [181]
  • A preliminary issue hearing conducted within a detailed assessment is part of that assessment and not a separate event capable of generating its own discrete costs order. The CPR 47.20 order is dictated by the overall result of the assessment, and either party may ask the court to exercise its discretion as to any particular item or point taken when the overall order falls to be made. [198, 199, 200, 201, 202, 218, 299, 300, 301]
  • The consent order of 14 August 2025, which added the interested party with defined permissions and no provision for costs liability, was treated as significant by the court. A party contemplating a later costs claim against a joined interested party must address costs expressly in the joinder order or seek a variation, as restrictions attaching to the interested party in that capacity cannot operate retrospectively to the period before joinder. [310, 311, 312, 313, 314, 349]

[254] "In that context, the offer of £600,000 (as against the £957,814 agreed) is neither absurd nor unrealistic. It represents a considerable amount of money, and was consistent with the arguments being run with regards to the interpretation of orders concerning budgets in this case, along with the balance of objections raised. It was a genuine offer to settle."

The Senior Courts Costs Office’s decision in Lemos and others v Church Bay Trust Company and others [2026] EWHC 2402 (SCCO) clarifies the scope of CPR 47.20 and the status of detailed assessment as part of existing proceedings, not new litigation.

Background

The claimants brought a section 423 Insolvency Act 1986 claim under CR-2016-008560, dismissed following trial in June and July 2023. An order dated 18 October 2023 provided by consent that the claimants pay the defendants’ costs on the standard basis, to be assessed by detailed assessment if not agreed, with £957,814 on account.

The Defendants served a Form N252 Notice of Commencement, with the bill of costs, on 27 June 2024. A consent order dated 14 August 2025 added BCR Legal Assist Limited, the second and third claimants’ ATE insurer, as an interested party. A preliminary issue concerning the status of orders made by ICC Judge Jones in relation to costs budgeting was heard on 23 September 2025 and determined by judgment dated 18 November 2025. The bill was subsequently settled at £957,814, leaving only the costs of assessment in dispute.

Costs Issues Before the Court

The second and third claimants applied, supported by the defendants, for an order that BCR Legal Assist Limited be jointly and severally liable with them for the defendants’ costs of the detailed assessment proceedings, with a 100% contribution inter se. The application was expressly not a non-party costs order application, nor one under section 51 of the Senior Courts Act 1981. It was put solely under CPR 47.20(1)(b), with reference to the CPR 47.20(3) factors.

The Parties’ Positions

Mr Waszak, for the second and third claimants, submitted that CPR 47.20(1) is a starting point only, makes no mention of who pays, and that 47.20(1)(b) confers a discretion to be exercised by an evaluative judgment as to where justice lies, relying on Hickinbottom LJ in Sirketti v Kupeli at paragraph 5(i). Mr Teasdale, for the defendants, argued that no real party test was needed because BCR Legal Assist Limited was a party, and observed in reply that CPR 47.20 does not say who should do the paying and that no category of payer is identified, referring to “all the parties” in 47.20(3)(a).

Mr Nicol, for the interested party, submitted that the paying and receiving parties had already agreed that the receiving party would have its costs of assessment, and queried how the court could then make “some other order” under 47.20(1)(b). He described CPR 47.20 as “the gateway to make a costs of assessment order”.

The Court’s Decision

Costs Judge Nagalingam dismissed the application. Central to the reasoning was the court’s characterisation of what a detailed assessment is. The underlying claim, the section 423 action, constituted “the proceedings” (para 164). The detailed assessment flowed from that action under CR-2016-008560, in which the defendants held an order for costs payable by the second and third claimants (para 166).

Detailed assessment in these circumstances was therefore “not new proceedings, but in fact part of the existing proceedings which led to the costs order in the Defendants’ favour” (para 167). The judge restated the point at para 180: detailed assessment proceedings are “not a new set of proceedings but rather a procedure that follows where it is impracticable for the originating court to maintain the case for the purpose of assessing costs which the parties cannot agree”.

From that characterisation followed the conclusion at para 181 that “CPR 47.20 cannot be used to alter an existing order for costs”. The second and third claimants’ primary liability to pay the defendants’ costs of the main action could not be reversed or altered, and they did not seek to avoid it.

The judge then analysed the reach of CPR 47.20(1). The provision that the receiving party is entitled to the costs of the detailed assessment proceedings was described as “the usual order” (para 170). Critically, CPR 47.20(1) “does not dictate the source or sources of funds a paying party calls on when the sum they are liable for has crystallised, whether by agreement or assessment”; it “simply addresses which party is entitled to the costs of the detailed assessment proceedings” (para 172).

Accordingly, the exception in 47.20(1)(b) “must be limited to the question of entitlement, rather than the source or sources of funds once the amount of the entitlement has been concluded” (para 173). The “usual order” decides entitlement “without dictating how that entitlement is later discharged”, and any exception is similarly confined (para 174). Interference under 47.20(1)(b) is concerned with “whether someone other than the receiving party ought to be entitled to the costs of the detailed assessment proceedings” (para 176).

The application did not seek to upset the usual order at all: the draft order provided for payment of the receiving party defendants’ costs of assessment (para 177). What the second and third claimants sought was to use 47.20(1)(b) “to effectively transfer their liability for the costs of the detailed assessment proceedings to the Interested Party” (para 178). Put shortly, they agreed the defendants were entitled to those costs but said they should not have to pay them (para 184).

The judge accepted, agreeing with Mr Waszak, that CPR 47.20 is not drafted in such restrictive terms that it could not be applied to an interested party, and recognised that CPR 47.20(3) does not set out an exhaustive list of factors to consider, but rather certain common factors (para 205). But the rule is “very much geared toward consideration of the conduct of the parties to a claim” (para 206).

A second strand concerned the preliminary issue hearing. Mr Teasdale had argued that the interested party would have sought their costs of the preliminary issues hearing had the point raised been accepted by the court. The judge rejected that characterisation of how liability for the costs of a point of dispute is ordinarily addressed (para 197). Had the court found against the defendants at the preliminary issue hearing, that would not necessarily have ended the detailed assessment; it would have been premature to make any order as to the costs of assessment (para 198). Nor does the fact that the assessment did not immediately continue “present an opportunity to hive off a selected element of the wider points of dispute” and make a costs order based on the de facto winner of an individual point (para 199).

It is not uncommon to win and lose various points during a detailed assessment, “but it is the overall result that matters, when contrasted with offers (if indeed any were made) and factors such as conduct” (para 200). A detailed assessment does not stop for a summary assessment of the costs of every point taken; instead, when a CPR 47.20 order is made, either party may ask the court to exercise its discretion as to any particular item or point (para 201). “The order for costs of assessment is dictated by the overall result” (para 202). The judge’s own concluding comments in the 18 November 2025 judgment, recording costs reserved with no separate order, were “an explicit explanation that the preliminary issues heard were simply part of the detailed assessment” (para 218). Listing such a hearing earlier than other dates is a function of court management and does not change that position (paras 299 to 301).

Practical Implications

This first instance decision has a direct drafting consequence. The consent order of 14 August 2025 added BCR Legal Assist Limited as an interested party and set out defined permissions: to serve and file written submissions, to file evidence, and to attend and participate in hearings as directed, limited to matters affecting the interested party’s interest (para 313). The judge observed that both the claimants and defendants “conveniently neglect to address the fact it was they who consented to the addition” with “no provision (nor by later variation or amendment) for BCR Legal Assist Limited to be liable for or contribute to the costs of assessment” (para 349). Silence on costs was treated as significant, not neutral.

Where an insurer, funder or other interested party is to be joined for the purposes of a detailed assessment, any party contemplating a later costs claim against it should address costs expressly in the joinder order, or seek a variation. Restrictions attaching to a party in its capacity as interested party cannot be applied retrospectively to the period when it was a non-party (para 312).

Practitioners should also note that the detailed assessment is part of the existing action and the CPR 47.20 order turns on the overall result. Arguments constructed around the outcome of a discrete preliminary issue, whether to claim costs or to resist them, should be reserved for the final 47.20 exercise, where the court may be asked to exercise its discretion as to any particular item or point taken.

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