But judge refuses to order payment on account of costs ahead of summary assessment
The High Court has rejected Rebekah Vardy’s argument that she should not have to pay all of Coleen Rooney’s costs of her unsuccessful appeal against a decision of the now-retired Senior Costs Judge, Andrew Gordon-Saker.
However, it refused Mrs Rooney’s bid for a payment on account given that there was to be a summary assessment in a few weeks’ time.
Earlier this month, Mr Justice Cavanagh upheld the finding that Mrs Rooney and her solicitors had not conducted themselves improperly or unreasonably in failing to clarify that their budget was an estimate of the incurred costs that would be allowed on assessment – rather than their actual spend.
In the underlying proceedings for which Senior Costs Judge Gordon-Saker had started the detailed assessment – taken over by Costs Judge Whalan since his retirement – Mrs Rooney was awarded 90% of her costs on the indemnity basis.
In Vardy v Rooney [2025] EWHC 851 (KB), there was no dispute that Mrs Rooney’s costs of the appeal – claimed at just over £85,000 – should be on the standard basis and dealt with summarily.
However, Mrs Vardy’s counsel, Jamie Carpenter KC, argued that Mrs Rooney should not receive 100% of her costs, because the court did not accept two submissions that made on her behalf in her respondent’s notice, for both of which Mrs Vardy had incurred additional costs in order to address. He suggested a “modest” reduction of 10% in the recoverable costs.
“The reality is that Ms Rooney was entirely successful at the appeal hearing. As Mr Robin Dunne, her counsel, pointed out, I upheld the decision below for the reasons that were given by Senior Costs Judge Gordon-Saker and so, in the event, the additional grounds in the respondent’s notice fell away.”
The two arguments referred to by Mr Carpenter only took up a small part of the argument, as reflected in the fact that they were dealt with in five paragraphs of a 76-paragraph judgment.
The question then was who should conduct the assessment: Acting Senior Costs Judge Rowley, who sat with Cavanagh J as assessor, or Judge Whalan, who is continuing with the detailed assessment next month.
Mrs Rooney said it would be convenient for Judge Whalan to do so, while Mrs Vardy submitted that the court had no power to allocate the task of summary assessment to a judge who was not involved the hearing in respect of which costs were awarded.
Cavanagh J sided with Mrs Vardy on this. He did not have to decide on whether there was such a power was because he considered it appropriate in any event for Acting Senior Costs Judge Rowley to conduct the assessment.
“Where a judge has sat with a costs judge as an assessor, and an order for summary assessment of costs has been made, it is traditional that the costs judge will conduct the summary assessment.
“The assessor has the appropriate expertise, and the assessor will have the greatest knowledge and understanding of the matter in respect of which the order for summary assessment of costs was made. That is certainly the position here.
“Also, as Mr Carpenter KC submitted, the exercise of conducting a detailed assessment of costs, which is the exercise that Costs Judge Whalan will be carrying out, is completely different from the exercise of carrying out a summary assessment.”
The judge found against Mrs Rooney’s request for a payment on account as well. “[T]he presumption that a payment on account will be ordered applies only where an order for detailed assessment has been made, not where, as here, there has been an order for summary assessment.”
Payments on account where a detailed assessment has been ordered was because of the wait for the hearing, which was not the case with summary assessments. Even though in this case judgment was reserved, rather than given orally at the end of the hearing, the summary assessment would still be concluded within a few weeks.
“The whole point of a summary assessment is to ensure that the party in whose favour a costs award is made recovers its costs within a short time of the hearing to which the costs award relates. This means that there is no scope, and no need, for a payment on account”, Cavanagh J said.
“Neither Acting Senior Costs Judge Rowley, with his great experience in costs matters, nor I, is aware of any case in which a payment on account has been ordered in a case in which a summary assessment of costs was made.”
Jamie Carpenter KC (instructed by Kingsley Napley) for the claimant. Benjamin Williams KC and Robin Dunne (instructed by Brabners) for the defendant.