The fact that an unsuccessful party is intending to mount an appeal and to seek a stay of any order for costs pending the outcome of that appeal does not of itself amount to a ‘good reason’ for not making a summary assessment of costs, the High Court has ruled.
Mrs Justice Slade said that otherwise unsuccessful parties could use this as a way to delay paying.
She was ruling in Axton & Anor v GE Money Mortgages Ltd & Anor  EWHC 1343 (QB), in which she rejected the claimants’ appeal against an order for summary judgment made in favour of the defendant.
The appellants argued that, since they were seeking permission from the Court of Appeal for a second appeal and would apply for a stay of any costs order made against them pending determination of that second appeal, it would be a more efficient and proportionate use of the court’s resources to adjourn the assessment of the appeal costs until then.
An adjournment would also, it was suggested, have the advantage of allowing the parties to agree the amount of costs.
Slade J said: “CPR44 PD9.2 provides that the general rule is that the court should make a summary assessment of the costs at the conclusion of a hearing which has lasted not more than one day unless there is good reason not to do so. I do not consider that the fact that the unsuccessful party is intending to mount an appeal and to seek a stay of any order for costs pending the outcome of that appeal can of itself amount to a ‘good reason’ for not following the general rule. If it were, then it would be open to every unsuccessful party to use it as a reason for avoiding summary assessment and to delay the payment of costs.
“Moreover, a major advantage of summary assessment is that the assessment is made by the Judge who dealt with the hearing at the time when the circumstances are clearly in his/her mind. If, however, the assessment was adjourned and the appeal proved unsuccessful, the assessment would take place long after the event and might be carried out by a different judge.”
She continued that a decision to delay summary assessment would, in effect, amount to a stay of the assessment of costs. CPR 52.7 provides that, unless the appeal court or the lower court orders otherwise, “an appeal shall not operate as a stay of any order or decision of the lower court”.
She said: “The relevant authorities make clear that the granting of a stay is an exceptional remedy. If an appellant desires a stay, it must make a formal application and put forward solid grounds why a stay should be granted. There is no such application before me and no grounds (other than the convenience of the court) have been put forward.
“In any event, it is far more appropriate that the decision as to whether or not a stay is granted in this case should be taken by the Court of Appeal. It would be for that court to consider any grounds put forward by the appellants and to balance the risks and likely prejudice to the parties. It would be wrong for me to make an assumption that the Court of Appeal will grant a stay and, on that basis, to decline to carry out a summary assessment.
“Furthermore, the assessment of the costs is a very straightforward exercise which, even if it does indeed ‘ultimately prove futile’, will not have resulted in a significant waste of court resources. I therefore intend to proceed to summarily assess the costs of the appeal.”