Master decision to disallow costs of leading counsel overturned on appeal

A master erred on a detailed costs assessment by disallowing the costs of leading counsel without having considered the factors required to be considered under rule 44.4(3), the High Court has ruled.

According to a report of Bush v King on Lawtel, the appellant had claimed that the respondent, a friend, had taken advantage of him by fraudulently misrepresenting the value of a piece of land in order to induce him to purchase a 50% beneficial interest. His claim succeeded and a judge awarded £628,000 plus costs.

On detailed assessment, the master said it had not been reasonable to instruct leading counsel for the trial as well as the experienced junior counsel who had already been involved in the case.

On appeal, Mrs Justice Moulder found that although the master had given a brief extempore judgment, he had nevertheless been required by rule 44(4) to have regard to all the circumstances.

The Lawtel report said: “He had not expressly or impliedly had regard to the factors in rule 44.4(3) that were relevant. In particular, he had failed to consider the issue of conduct; the judge had found that the respondent had taken advantage of a friend of many years’ standing, who had had to refinance himself and put himself at great financial strain, and risk his whole financial future.

“In addition, the master had not recognised the importance of the case to the appellant. He should have asked whether it had been reasonable to instruct leading counsel, not whether the trial had been within the capabilities of junior counsel. The master had erred. Applying the factors in rule 44(4), it had been reasonable to instruct leading counsel.”

PJ Kirby QC and Stephen Hines, instructed by Starck Uberoi, acted for appellant; Andrew Armson, instructed by Pictons, for the respondent.

 

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Costs News
Published date
23 Nov 2017

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