Costs On Indemnity Basis For Wasted Hearing Due To Unreasonable Adjournment Application.

Deputy Judge Kinnier conducts summary assessment indemnity costs determination in £468K enforcement dispute, applying mixed basis approach for wasted hearing costs. The Century Property v Aldiss judgment demonstrates judicial discretion in costs assessment following unreasonable adjournment applications that waste court time and resources.

CENTURY PROPERTY (LEEDS) LTD V EVILLE & JONES (GROUP) LIMITED & ORS [2025] EWHC 1949 (KB)

In Century Property (Leeds) Ltd v Aldiss, the court determined consequential costs issues following a successful enforcement application. The court applied the general rule under CPR 44.2(2)(a) and ordered the unsuccessful defendant, Dr Aldiss, to pay the claimant’s costs. It rejected his arguments against liability, namely his status as a litigant in person, the alleged prematurity of the application, a pending appeal, and his sincerity, finding no reason to depart from the rule. On the basis of assessment, the court adopted a bifurcated approach. While the application’s legally unusual nature and the defendant’s entitlement to defend his pension justified standard basis assessment for most costs, the costs of the first hearing were awarded on the indemnity basis. This was due to the defendant’s conduct in obtaining an adjournment to file evidence and then filing none, which the court found was a tactic designed to delay and which rendered those costs wasted. On quantum, the court conducted a summary assessment, applying the principles of reasonableness and proportionality from CPR 44.3(5), 44.4, and West v Stockport NHS Foundation Trust. It reduced the claimed total of £57,567.43, finding certain elements of the correspondence and document preparation costs to be excessive, resulting in a final assessed sum of £54,432.93. The court refused a stay of the costs order.

Bearing in mind the imperative to deal with cases justly and balancing the various factors outlined above, the appropriate order in this case is that costs will be assessed on the standard basis with the exception of the costs of the first hearing which are to be assessed on the indemnity basis. That order strikes a balance between recognising the unusual nature of the application and that a hearing would always have been required on the one hand and the fact that the costs of the first hearing were wasted because of Dr Aldiss' ultimately pointless application to adjourn on the other hand.

Citations

Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065 The court’s discretion to grant a stay of enforcement must be exercised based on all the circumstances, focusing on the risk of injustice to either party if a stay is granted or refused. Leicester Circuits Ltd v Coates Brothers PLC [2002] EWCA Civ 472 A stay of judgment is generally not granted; courts must balance alternatives to avoid injustice, with the strength of a likely appeal being a relevant factor. Excelsior Commercial and Industrial Holdings Ltd v Salisbury Hannan Aspden & Johnson [2002] EWCA Civ 879 Indemnity costs may be awarded where conduct takes the case “out of the norm,” reflecting an exceptional departure from ordinary litigation behaviour. Three Rivers DC v Bank of England [2006] EWHC 816 (Comm) Indemnity costs are justified by unreasonable conduct, not requiring moral blame, and should be assessed by reference to relevant case-specific factors. Williams v Jervis [2009] EWHC 1837 (QB) Indemnity costs should not be awarded based solely on defeat or retrospective knowledge of the outcome; decisions must not rely on hindsight. West v Stockport NHS Foundation Trust [2019] EWCA Civ 1220 In summary assessments, courts must evaluate the reasonableness and proportionality of claimed costs with reference to the governing CPR provisions and costs guidelines.

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The general rule is that the unsuccessful party should pay the successful party’s costs, and any departure from that principle must be justified by good reasons. [17]
An application for indemnity costs requires the court to determine whether the conduct of the paying party or the circumstances of the case take it “out of the norm”, judged by the standard of unreasonableness rather than moral blameworthiness. [21]
A litigant in person’s status and personal circumstances may be taken into account when determining reasonableness, but such considerations do not displace the general rule where that party has unsuccessfully contested the application and failed to substantiate their defence. [17, 23]
In assessing whether to award indemnity or standard basis costs, the court will evaluate the procedural history of the matter, including compliance with court orders, the provision of evidence, and whether applications were reasonably made or likely to cause delay. [21, 22, 24–26]
Where appropriate, the court may summarily assess costs, considering the reasonableness and proportionality of the costs claimed with reference to the CPR, applicable practice directions, and the total sums at stake in the litigation. [28–32]

"On the other hand, Dr Aldiss is a professional and articulate man. There is nothing before me which suggests that he did not understand the need to present evidence to support his response to the application, the need to comply with orders or the consequences should orders not be satisfied in the absence of good reason. I granted Dr Aldiss' late request to adjourn the first hearing to allow him to collect evidence to answer Century Property's application. In the event, no evidence was served; no good reason was given for its absence and no application was made to vary the timetable in the order of 12 February 2025 to allow him further time to collate his evidence."

Key Findings In The Case

The general rule that the unsuccessful party should pay the successful party’s costs was upheld, with the court determining that Dr Aldiss, having unsuccessfully opposed Century Property’s application and failed to substantiate his defence, was liable to pay the Applicant’s costs on that basis [17–18].
The court found that Dr Aldiss’ overall conduct in the enforcement proceedings, while unreasonable at times—including non-compliance with the Tomlin Order, failing to file evidence after being granted an adjournment, and late, ultimately unsuccessful applications—did not justify indemnity costs for the entirety of the proceedings, but it did warrant indemnity costs in respect of the first hearing which was rendered ineffective by his conduct [19–26].
In assessing Century Property’s costs schedule, the court summarily assessed the total costs at £54,432.93, finding the claimed solicitors’ hourly rates and counsel’s fees reasonable in light of the complexity of the application and the overall proportionality of the costs to the sums at stake (approximately £450,000) [28–31].
The court rejected Dr Aldiss’ argument that the outstanding appeal against the Tomlin Order should defer or prohibit summary assessment of costs, affirming that summary assessment was appropriate given the clarity of the parties’ positions and the straightforward nature of the costs issues [28].
While giving limited weight to the fact of Dr Aldiss being a litigant in person, the court concluded that this did not displace the general rule on costs, especially since he is a professional individual who was aware of procedural obligations, and his conduct contributed materially to procedural inefficiencies and additional costs [17, 23–25].

"The total sum of £54,432.93 (including VAT) is, in my judgment, proportionate bearing in mind the factors set out in CPR 44.3(5) and 44.4. In short, the application was unusual and that was reflected in the claimed costs; the sums at stake (approximately £450,000) were relatively substantial; the adjournment of the first hearing caused more work to be undertaken than would otherwise have been necessary and Dr Aldiss' request for further information to a great extent addressed matters which had previously been communicated to him about the assignment and so the time and money spent preparing a response was prompted by his conduct."

Background

The costs determination arose from Century Property (Leeds) Limited’s successful application for mandatory injunctions to enforce a judgment debt against Dr Jason Aldiss’s self-invested personal pension (SIPP). The underlying judgment debt of £402,500 stemmed from an order made by Master Eastman on 31 October 2023, which was subsequently assigned to Century Property on 1 December 2023.

The enforcement proceedings involved Century Property obtaining a charging order over Dr Aldiss’s SIPP on 11 June 2024, with the total sum due reaching £450,939 by 29 April 2025, accruing interest at £88.22 daily. The SIPP, valued at £618,249.94 as of 16 April 2025, could not be accessed until Dr Aldiss reached his 55th birthday on 17 August 2025.

The application proceedings involved two hearings. At the first hearing, Dr Aldiss, appearing as a litigant in person, successfully applied for an adjournment to gather evidence to respond to Century Property’s application. Despite being granted this adjournment, Dr Aldiss failed to serve any evidence and provided no explanation for this failure. Shortly before the second hearing in April 2025, Dr Aldiss made an application to the Court of Appeal for permission to appeal the original Tomlin Order, and at the second hearing, he unsuccessfully sought both an adjournment and a stay of enforcement proceedings.

Following the court’s judgment on 4 June 2025 allowing Century Property’s application, the parties were directed to submit written representations on consequential matters, including costs, by 30 May 2025. Dr Aldiss’s response to Century Property’s statement of costs was delayed due to an injury, with his submissions ultimately provided on 9 June 2025.

Costs Issues Before the Court

The court was required to determine three principal costs issues following the successful enforcement application. First, whether Dr Aldiss should bear Century Property’s costs or whether the circumstances justified departing from the general rule under CPR 44.2(2)(a) that the unsuccessful party pays the successful party’s costs.

Second, the court needed to consider the appropriate basis of assessment. Century Property sought its costs on the indemnity basis, arguing that Dr Aldiss’s conduct throughout the proceedings was sufficiently unreasonable to take the case “out of the norm” as established in Excelsior Commercial and Industrial Holdings Ltd v. Salisbury Hannah Aspden & Johnson [2002] EWCA Civ 879. The alternative was assessment on the standard basis.

Third, the court was asked to summarily assess the quantum of costs. Century Property submitted two statements of costs: the first dated 28 April 2025 for £55,363.02 (including VAT) covering both hearings, and the second dated 29 May 2025 for £2,204.41 (including VAT) for work on consequential matters, totalling £57,567.43. The court needed to determine whether these costs were reasonable and proportionate in accordance with CPR 44.3(5) and 44.4.

The Parties’ Positions

Dr Aldiss advanced four principal arguments against any costs order. He emphasised his status as a litigant in person who found the litigation uniquely stressful as it concerned both his reputation and his sole retirement asset. He contended that the enforcement application was premature given that his 55th birthday was not until August 2025. He pointed to his recent application for permission to appeal the Tomlin Order as evidence of genuine concerns about its validity. Finally, he maintained that his challenges were not designed to delay enforcement but reflected legitimate concerns about the underlying settlement.

Regarding the basis of assessment, Dr Aldiss argued for the standard basis, relying on the same grounds he had advanced against any costs order being made.

On quantum, Dr Aldiss challenged the costs as disproportionate and sought only nominal costs. He specifically criticised Mr Toby Starr’s hourly rate of £685 and the Grade C associate solicitor’s rate of £420 as significantly exceeding guideline rates without justification for enhancement. He argued that the claims for work on documents (£14,375), email correspondence, and counsel fees (£15,405) were excessive without proper breakdown or itemisation. He alleged duplication of work and excessive time on routine tasks, suggesting the statements had been “padded out”.

Century Property’s position was straightforward on liability: having succeeded on the application, there was no reason to depart from the general rule requiring the unsuccessful party to pay costs. On the basis of assessment, Century Property argued that Dr Aldiss’s conduct warranted indemnity costs, citing his non-compliance with the Tomlin Order, his request for an adjournment to gather evidence which he subsequently failed to serve, his unreasonable opposition to the application, his unsubstantiated challenges to the Tomlin Order’s validity, and his failed attempts to adjourn the second hearing and stay enforcement. Century Property maintained that this conduct took the case “out of the norm”.

On quantum, Century Property defended its costs as reasonable given the unusual nature of the application, which had only been considered in three reported first instance cases. Century Property made no specific submissions responding to Dr Aldiss’s detailed criticisms of the costs claimed.

The Court’s Decision

On the principle of costs liability, the court applied the general rule under CPR 44.2(2)(a) and ordered Dr Aldiss to pay Century Property’s costs. The court found that none of Dr Aldiss’s four grounds provided sufficient reason to displace the general rule. Whilst acknowledging his status as a litigant in person and the litigation’s impact, the court noted that Dr Aldiss had “vigorously fought, but lost, the application”. The prematurity argument had already been dismissed in the substantive judgment at paragraph 53(e). The pending appeal application did not justify departing from the general rule, and whilst not doubting Dr Aldiss’s sincerity, the court noted he had done nothing to substantiate his validity challenges despite being given opportunities to submit evidence.

On the basis of assessment, the court adopted a nuanced approach. After reviewing the principles from Excelsior Commercial and Industrial Holdings Ltd v. Salisbury Hannah Aspden & Johnson [2002] EWCA Civ 879 and Three Rivers DC v. Bank of England [2006] EWHC 816 (Comm), the court recognised that the test was unreasonableness rather than moral condemnation. The court acknowledged that the application was “far from straight-forward”, concerning an area of law with limited authority, and that Dr Aldiss was entitled to defend against enforcement directed at his sole retirement asset.

However, the court found that Dr Aldiss, as “a professional and articulate man”, understood the need to present evidence and comply with orders. His failure to serve evidence after obtaining an adjournment specifically for that purpose, without good reason or application to vary the timetable, was particularly significant. The court concluded that Dr Aldiss’s applications at both hearings were “designed to delay determination of Century Property’s application and, ultimately, enforcement of the judgment debt”.

The court ordered costs on the standard basis, except for the costs of the first hearing which were to be assessed on the indemnity basis. This reflected a balance between the unusual nature of the application and the fact that the first hearing costs were “wasted because of Dr Aldiss’ ultimately pointless application to adjourn”.

On quantum, the court conducted a summary assessment applying the principles from West v. Stockport NHS Foundation Trust [2019] EWCA Civ 1220. For the first statement of costs, the court found the solicitors’ hourly rates and counsel’s fees reasonable. However, it reduced the correspondence costs from the claimed amount to £6,000, finding the costs for correspondence with Dr Aldiss higher than expected given its “brief and succinct nature”. The court also reduced the documents costs to £13,000, finding excessive time spent on the chronology and response to Dr Aldiss’s request for information.

The court approved the second statement of costs in full at £2,204.91. The total costs allowed were £54,432.93 (including VAT), reduced from the £57,567.43 claimed. The court found this sum proportionate under CPR 44.3(5) and 44.4, considering the unusual nature of the application, the substantial sums at stake (approximately £450,000), the additional work caused by the adjournment, and Dr Aldiss’s conduct in seeking information on matters previously communicated to him. The court refused to stay the costs order for the same reasons it had refused to stay enforcement of the substantive order.

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