Permission Refused To Appeal A Seven Year Old Final Costs Certificate

Choudhury v Mukherjee [2024] EWHC 1153 (SCCO) involved a dispute between Mr Nazim Choudhury (the Claimant) and Dr Shauna Mukherjee (the Defendant). The original claim by Mr Choudhury was for possession of a rental property and arrears of rent. After Dr Mukherjee vacated the property, the claim continued as a money claim and concluded with a judgment in favor of Mr Choudhury on 24 March 2014, with costs to be assessed. Dr Mukherjee had also filed a counterclaim for disrepair.

Chronology of Key Events

• 24 March 2014: Judgment given for the Claimant with costs to be assessed.
• 26 September 2013: The Defendant’s application to strike out her counterclaim was dismissed, with costs awarded to the Defendant. However, the Defendant never quantified or applied to assess these costs.
• 6 October 2014: The Defendant’s application to set aside the March 2014 judgment was dismissed, with costs of £3,094.20 summarily assessed against her.
• 27 January 2015: The Claimant’s solicitors (Dean Wilson LLP) sent the Notice of Commencement and Bill of Costs to the Defendant by email and post for a detailed assessment of the costs awarded in the March 2014 order.
• 19 February 2015: The Defendant served Points of Dispute on the Bill of Costs.
• 15 May 2015: The Claimant notified the Defendant that the Bill of Costs was sent to court for provisional assessment.
• Early 2016: The provisional assessment was carried out by the court. A Final Costs Certificate for £9,110.76 was issued on 10 March 2016.
• March 2022: The Defendant became aware of enforcement proceedings relating to the Final Costs Certificate. Her applications to set aside the March 2014 order and stay enforcement were dismissed on 20 June 2022.
• 27 June 2023: The Defendant filed an Appellant’s Notice seeking to appeal the Final Costs Certificate, over 7 years out of time on grounds that:

• • The Final Costs Certificate was unlawfully obtained, and costs have been duplicated. Costs had already been summarily assessed and paid by the Appellant pursuant to the order of 6 October 2014. Some of the costs claimed in the Claimant’s bill for costs relate to the counterclaim, and had appeared on a schedule of costs prepared by the Claimant for the unsuccessful application to strike it out, dismissed on 26 September 2013.
  • Service of the Notice of Commencement of detailed assessment proceedings and of the bill of costs was invalid, having been effected by email without satisfying the procedural requirements imposed by the Civil Procedure rules (“CPR”) in Practice Direction 6A (at paragraph 4.1).
  • The Bill of Cost is defective, in that it does not name individual fee earners and their hourly rates.
  • Finally, the Claimant’s conduct, including failure to respond to a settlement offer from the Defendant and unjustified delay in the service of the bill, has been unreasonable and improper so that an appropriate sanction would be the “dismissal” or strike-out of the final cost certificate under CPR 44.11.

Decision

Costs Judge Leonard ultimately refused to extend time and dismissed the appeal, finding:

• The 7-year delay was serious with no good reason. On the evidence, the Defendant was notified of the detailed assessment in 2015 and the Final Costs Certificate in 2016 but failed to engage until faced with enforcement in 2022.

“I do not find it credible that the Defendant was in 2016 unaware of the existence of the Final Costs Certificate, to which DW made every proper effort to draw her attention. Even if she had been unaware of it, that would still not have excused a 7-year delay in challenging the outcome of an assessment which, in 2015, she already knew was under way.

“I have reached the obvious conclusion, which is that when her negotiations with DW failed to bear fruit, the Defendant simply ceased to engage with the assessment. It was only when faced with enforcement proceedings, many years later, that she belatedly attempted to set everything aside and to restart the entire process.

“The Defendant also relies upon physical and mental health difficulties, which she says prevented her acting promptly, to explain her delay not only over the 12-month period between her second failed attempt to set aside the March 2014 judgment and her filing of an appeal notice against the Final Costs Certificate, but over the entire period since 2014. This is unsupported by any medical evidence and does not furnish a credible explanation for many years of delay.

“My conclusion, accordingly, is that there was no good reason for the Defendant’s seven-year delay in filing an Appeal Notice. The Defendant chose not to act until she felt forced to do so.” [50-53]

• Tthere is no right to appeal a provisional assessment: PME v Scout Association.
• In any event, the Defendant’s grounds of appeal varied “between weak and non-existent.”

a) The costs awarded in the March 2014 order were separate from those summarily assessed in October 2014.

“The proposition that the costs payable to the Claimant had already been assessed and paid pursuant to the order of 6 October 2014 is patently wrong. The costs awarded on that occasion were the costs of the failed application to set aside the court’s order of 24 March 2014. The costs awarded in the 24 March order still fell to be assessed and paid. The Claimant had every right to have them assessed, and to seek enforcement of the Final Costs Certificate when that assessment was complete.” [66]

b) Service of the Notice of Commencement and Bill was valid based on the evidence. Any technical issues with email service under PD 6A should be dispensed with under CPR 3.10 given the Defendant’s delay.

“As I have accepted the evidence of Ms Moffatt, I accept that the Claimant’s Notice of Commencement and bill of costs were validly served upon the Defendant by post and email on 27 January 2015. Even if the bill had only been served by email, the Defendant accepted it and served points of dispute. If she could raise any valid technical point about service, it would be entirely inappropriate to permit her to rely upon it now. The proper approach would be to apply CPR 3.10 to dispense with any such technical issue.” [62]

c) The Bill format regarding fee earners was typical at the time. The Defendant did not previously object or request further details.

“It has now been established that individual fee earners must be named in an electronic spreadsheet bill, but not in a paper bill, and the Claimant’s bill is a paper bill. I think that it must be right to say that the bill should have identified the specific experience of the fee earners referred to, but the Defendant did not take that point in 2015, and does not take it as a ground of appeal. If she had, I would have said that in 2015, it was common practice to prepare bills in the form used by the Claimant. Had the Defendant at the time requested specific information as to fee earners’ experience, it could easily have been supplied, but she did not.” [71]

d) The Claimant acted reasonably in proceeding to assessment after the parties failed to agree on settlement. There was no improper conduct warranting relief under CPR 44.11.

“There is nothing about the conduct of DW on behalf of the Claimant that could give rise to any proper allocation of misconduct, or which could engage CPR 44.11. The Defendant says that DW took advantage of her as a litigant in person: on the evidence, they did not. They made every effort to contact the Defendant and to keep her informed. It was the Defendant who declined the Claimant’s invitation to establish a service address of her choice; who ceased to engage with the assessment process; and who now denies knowledge of information which, on the evidence, she must have received, in an attempt to excuse inexcusable delay.” [73]