Understanding Court of Appeal Costs
And What You Can Expect to Recover on Assessment
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Court of Appeal Costs
The Court of Appeal usually deals with complex cases arising from appeals arising from both the Upper Tribunals and Civil courts. Should a decision of the First Tier Tribunal not be agreed by either party, this can be appealed to the Upper Tribunal for reconsideration of the case. Further disagreement of the dispute can result in an appeal to the Court of Appeal being made following permission to appeal being granted (this will requirement payment of further Courts fees to proceed). The only more senior Court within England and Wales is the Supreme Court.
Whilst costs orders can be set by the First-Tier Tribunal, Upper Tribunal, High Court and other civil Courts, the Court of Appeal has the power to make alternative costs orders and even have the orders of the lower Courts set aside.
Civil Procedure Rules CPR 52.20 (2)(e) gives the Court of Appeal the power to make a costs order. The Court can make orders for Court of Appeal costs and for costs arising from the lower Courts of the same action.
CPR 52.20 (2) gives the Court of Appeal the following powers:
(a) affirm, set aside or vary any order or judgment made or given by the lower Court;
(b) refer any claim or issue for determination by the lower Court;
(c) order a new trial or hearing;
(d) make orders for the payment of interest;
(e) make a costs order.
In order for the parties to request a costs order, submissions can be made orally or following the written judgment.
How are Court of Appeal Costs Assessed?
The Court of Appeal has the power to summarily assess the costs arising from the appeal. This can be the case even if the parties do not agree to this. This is likely to be the case where the appeal is short and on a particular point of law, and the hearing has lasted less than one day. Summary assessment may not be appropriate where a Court of Appeal hearing lasts longer than a day or includes leading Counsel as in this instance; it can be argued that the case is sufficiently complex to warrant the attention of a detailed assessment.
In the case of Lownds, Lord Woolf CJ, set out the correct approach for the Court to take in relation to summary assessment. At paragraph 31, he stated:
“In other words, what is required is a two-stage approach. There has to be a global approach and an item by item approach. The global approach will indicate whether the total sum claimed is or appears to be disproportionate having particular regard to the considerations which CPR r 44.5(3) states are relevant. If the costs as a whole are not disproportionate according to that test, then all that is normally required is that each item should have been reasonably incurred and the cost for that item should be reasonable. If on the other hand, the costs as a whole appear disproportionate then the Court will want to be satisfied that the work in relation to each item was necessary and, if necessary, that the cost of the item is reasonable. If, because of lack of planning or due to other causes, the global costs are disproportionately high, then the requirement that the costs should be proportionate means that no more should be payable than would have been payable if the litigation had been conducted in a proportionate manner. This [in] turn means that reasonable costs will only be recovered for the items which were necessary if the litigation had been conducted in a proportionate manner.”
Therefore, if the costs appear disproportionate, then the Court will assess the costs item by item to ensure it is necessary and reasonable.
Alternatively, Court of Appeal costs can go to detailed assessment if they are not agreed. As opposed to costs of the upper tribunal or the lower civil courts which are more likely to go to detailed assessment, rather than to be summarily assessed, as per the procedure set out in CPR 47.
In cases where the costs ordered by a lower Court are set aside by the Court of Appeal, the costs paid pursuant to the order made by the lower Court will need to be repaid. In this instance, the Court of Appeal has the power to order interest on those costs.
How can ARC Costs Help?
ARC Costs are a team of specialist Costs Lawyers and Costs Draftsmen. We can assist in preparing a Bill of Costs for costs incurred following any costs orders made by the Courts. Alternatively, we can assist in disputing Bills of Costs which have been served by the receiving party following a Costs Order, and preparing Points of Dispute to reduce the amount payable. We can assist in representing either receiving or paying parties at detailed assessment and through the full costs recovery process. Should you require any further information or our assistance, please contact us on 01204 397302, via email at firstname.lastname@example.org, or via the live chat facility below.
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