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The Senior Courts Costs Office’s decision in Awan v Patel & Ors [2025] EWHC 3332 (SCCO) confirms that paying parties can compel receiving parties to commence detailed assessment proceedings even after extreme delay.
Background
The matter before Master Brown was an application dated 27 February 2025 by Mr Sarfaraz Awan, a litigant in person who was described as having been “at one time a litigation solicitor” [§21]. He sought an order requiring the Respondents (the successful Defendants and Counterclaimants in earlier Chancery proceedings) to serve a Notice of Commencement of Detailed Assessment Proceedings and a Bill of Costs. This application related to a costs order made nearly eight years prior, on 20 October 2017 [§2] (noting an apparent typographical error at §8 which states ‘2018’), by Sir John Baldwin QC sitting as a deputy High Court judge. That order provided that Mr Awan and his wife were jointly and severally liable to pay the Respondents’ costs of the claim, counterclaim, and additional claim, on the standard basis, to be assessed if not agreed [§8]. A significant feature was paragraph 3 of the same order, which directed Mr and Mrs Awan to pay £118,800 on account of those costs by 10 November 2017 [§10].
The on-account sum was not paid and subsequently became a judgment debt. The Respondents took steps to enforce it. On 3 February 2019, Chief Master Marsh granted a final Charging Order over Mr Awan’s property [§11]. Later, on 7 March 2024, Master Kaye made a conditional order for sale of the property [§12]. Mr Awan and his wife sought to appeal Master Kaye’s decision, arguing that an interim payment on account of costs was not an enforceable order. Permission to appeal was refused by Fancourt J on 19 July 2024 [§13], and a subsequent application to the Court of Appeal was also rejected by Lewison LJ [§14]. Throughout this period, the Respondents had not commenced detailed assessment proceedings to have their full costs quantified.
Separately, Mr Awan had also made an application to stay execution of the order for sale. Master Brown transferred that application back to the Chancery Division (to Deputy Master Teverson) to be heard alongside an existing application there [§6]. Deputy Master Teverson subsequently stayed execution pending the outcome of the costs application before Master Brown.
Costs Issues Before the Court
The core issue for determination was whether the court should grant Mr Awan’s application and order the Respondents to commence detailed assessment proceedings [§2]. This raised several interrelated legal questions. First, whether CPR 47.7 imposes a mandatory obligation on a receiving party to commence detailed assessment within three months of a costs order, or whether it is merely an option [§30]. Second, if it is an obligation, whether the court has a discretion under CPR 47.8(1) to refuse an application by a paying party to compel commencement, and if so, how that discretion should be exercised [§40–46]. Third, whether the very substantial delay (almost eight years) and the applicant’s alleged motive to frustrate enforcement constituted an abuse of process or other reason to refuse the application [§63–83].
The Parties’ Positions
Mr Awan, acting in person, argued that CPR 47.7 used the word “must”, which created a clear obligation on the Respondents to commence detailed assessment within three months [§18, §22]. He submitted that the order for an interim payment was made on account of costs to be assessed or agreed. In the absence of agreement, there had to be an assessment to determine the final sum payable [§22]. He contended that the Respondents’ failure to serve a bill meant there had been no final determination of costs as envisaged by the original order.
The Respondents, represented by Mr David Zachary Lipson of counsel, opposed the application. Their position was that there was no obligation to commence detailed assessment; it was an option [§25]. They argued they could choose to rely solely on the enforceable interim payment order without progressing to a full assessment. Mr Lipson submitted that the application was a tactical attempt to stall enforcement of the judgment debt, which with interest stood at approximately £201,243.64 as at 3 September [§23]. He contended that the court had a broad discretion under CPR 47.8(1) and should refuse the order [§28]. He cited the substantial costs and practical difficulties of preparing a bill after so many years, the history of enforcement problems, and the applicant’s own delay in making the application as reasons to exercise discretion against compelling assessment [§26–28].
The Court’s Decision
Master Brown granted the application and ordered the Respondents to commence detailed assessment proceedings [§85]. His reasoning addressed each key issue in turn.
On the first issue, he held decisively that CPR 47.7 imposes a mandatory obligation, not an option [§31]. The use of the word “must” was conclusive and “plainly… inconsistent with this step being optional” [§31]. This interpretation was supported by the language of CPR 47.8, which refers to a party who “fails to commence”, implying a breach of an obligation: “The word ‘fails’ connotes to my mind an obligation to commence. There must be an obligation to do so because it is only if there is obligation to do so could there be a ‘failure’” [§34]. The judge also referenced the Court of Appeal’s comments in Haji-Ioannou v Frangos [2006] EWCA Civ 1663, which treated delay in commencement as a failure to comply with a rule [§35–37]. He noted that general practice was inconsistent with the notion that commencement was optional [§38]. The Respondents were therefore in breach of the rules for not serving a bill within three months of the October 2017 order [§39].
On the second issue, Master Brown accepted that CPR 47.8(1) likely conferred some discretion on the court not to make an order, as it stated the paying party “may apply” and did not say the court “must” order commencement [§43]. However, he found this was not a general discretion to be exercised freely [§44]. The provision’s purpose was to compel a party in breach to comply and bring the costs claim to a conclusion within a reasonable time [§46]. Any discretion had to be exercised with that purpose in mind and required a good reason to refuse an application [§44].
The judge then considered how to exercise any discretion. He found compelling reasons to order assessment. The interim payment order was made on account of costs to be assessed; its very nature assumed an assessment would follow [§47–48]. Refusing the application would, in effect, convert an interim order into a final one: “I put it to Mr Lipson, not meaning to be pejorative, that in effect he was seeking to convert what is an interim on account order to a final order. And I am not persuaded by him that I have the ability to do that by the terms of the rules” [§49]. The alleged burdens on the Respondents (cost of preparing a bill, assessment fees) were not disproportionate [§56–57], especially as they could limit their bill to the £118,800 already ordered if they wished [§59]. The fact their costs were secured by a charging order placed them in a more advantageous position than many receiving parties [§58]. Master Brown concluded that the factors raised by the Respondents were insufficient to outweigh the applicant’s entitlement to see a bill and have costs assessed [§60–61].
On the third issue, concerning delay and abuse, the judge was not persuaded [§65]. He noted that the CPR 47 scheme provided its own sanctions for delay (primarily disallowance of interest) and was designed to minimise satellite litigation, appearing to be “a self contained scheme dealing with delay, with prescribed sanctions” [§66]. While inordinate delay could theoretically reach a point where assessment was unfair, that point had not been reached here [§67]. Assessment of costs for old work was not unusual — the court in Michael Wilson & Partners Ltd v Emmott [2025] EWHC 747 (Comm) dealt with a 12-year delay [§69]. The case would likely be decided on documents like invoices and attendance notes, not witness recollection [§70]. The judge found no evidence that a fair assessment was now impossible. He also did not accept that Mr Awan’s delay in making the application was contumelious or abusive [§71, §76]. Even if an ulterior motive to delay enforcement was suspected, the application remained objectively justifiable as a paying party is ordinarily entitled to a bill and assessment [§79, §83].
Consequently, Master Brown made an order requiring the Respondents to serve a Notice of Commencement and Bill of Costs, stating: “I do not see any reason why I should not make an Unless Order with, say, three/three and a half months to prepare the Bill” [§87]. He declined to deal with associated applications for disallowance of costs or interest at this hearing, noting those could be addressed later in the assessment process [§88, §90].
Sanction for delay in commencing detailed assessment proceedings
CPR 44.2(8) | Payments On Account In Civil Litigation
CPR 44.2(8) | No Restriction To Ordering A Payment On Account
Commencement of detailed assessment proceedings: Earliest time for commencement
Costs of detailed assessment proceedings: Entitlement
