(1) MAYA ALVA MAHMOOD v (2) ZIAUDDIN MAHMOOD [2002] EWCA Civ 457

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(His Honour Judge Knight)
[2002] EWCA Civ 457Case No B2/01/0164Venue Royal Courts of Justice, Strand, London WC2, Friday, 15th March 2002
Between
(1) MAYA ALVA MAHMOOD(2) ZIAUDDIN MAHMOODAppellants(1) REBECCA PENROSE(2) OLIVER PENROSE(3) STEPHEN QUAYRespondents
Before
Lord Justice MantellSir Swinton ThomasMR. MAHMOOD appeared in Person.MR. O. PENROSE appeared in Person.Date 15 March 2002

SIR SWINTON THOMAS: This is an appeal, with the permission of this court, from an order made by His Honour Judge Knight QC at the Central London Civil Trial Centre on 19th September 2000.

[2]The appeal relates to costs only. Although there is now only one point in issue, that can be stated quite simply. The background is lengthy and complex. Having said that, it is not necessary for the purposes of this judgment to set out that background at any great length. The relevant part of

Judge Knight's order reads as follows:

"The costs reserved on 22nd September 2000, namely the costs of the application to adjourn and preparation of the trial bundle are assessed at £4,623.63 to be paid by the claimants to the defendants by 4 p.m. on 2nd January 2001."
[3]The dispute concerned premises at 1 Rodborough Road, London, NW11. Mr. and Mrs Mahmood are the tenants of the top floor flat, Flat 1B. They have lived there, pursuant to a tenancy agreement, since 6th April 1979. The first defendant is the owner of the house. The second and third defendants have in the past had an interest in the house, the nature of which it is not necessary to go into. The claimants, Mr. and Mrs Mahmood, brought these proceedings making a number of claims, including claims that they had a right to park a motor vehicle on the forecourt of the house and a right of access to and use of the garden. Other allegations included allegations of intimidation and harassment and breaches of the covenant for quiet enjoyment. The defendants counterclaimed, seeking a declaration that the claimants were not entitled to park on the forecourt and had no right of access to or use of the garden.[4]The case was scheduled to begin at the Central London Civil Trial Centre on 25th September 2000. On 18th September, a week before the trial date, the claimants issued an application to adjourn the trial date. The case was one of some complexity. As will appear, the costs were very substantial. The application to adjourn was heard by Miss Recorder Worrall QC on 22nd September. It was set down to last for 15 minutes. The basis of the application was Mr. Mahmood's alleged ill health which, it was said, had prevented him from being able properly to prepare for the trial. Although listed for 15 minutes, we are told that the application lasted all day, finishing late in the afternoon, although there were interruptions whilst the Recorder dealt with other matters. At the conclusion of the application the Recorder acceded to it, adjourned the trial to 4th December and ordered the claimants, the present appellants, to pay the costs of the application.[5]At the conclusion of the hearing the respondents asked for an immediate order in relation to three items, £1,584.72 wasted pre-trial costs, the costs of the hearing on 22nd September and the costs of the trial bundle. The Recorder ordered that the claimants should pay the pre-trial costs in the sum of £1,533.38 and as to the other items she ordered:
"The balance of the wasted costs, i.e. the costs of the trial bundle to be paid by the defendant in default of the claimant and the costs of today's application which are to be considered by the trial judge."
[6]After the third day of the hearing before Judge Knight, the claimants withdrew from court and did not reappear. The judge reserved judgment and handed it down on 19th December. He dismissed the claimants' claims, gave judgment for the defendants on the counterclaim, and ordered that the claimants pay the defendants' costs of the trial to be assessed if not agreed. As to the two items of costs which had been referred to him by the Recorder the judge understandably, but I think mistakenly, was under the impression that the Recorder had referred to him the issue whether the claimants should be ordered to pay those costs and also as to how they should be dealt with. It is clear from the order that that is not correct. The Recorder ordered that the claimants should pay the costs but referred the questions of quantification and manner of payment to the trial judge. The judge ordered that the claimants should pay the costs which had been reserved to him and he assessed them in the amount claimed, namely £4,623.63.[7]It is of some importance to note that the claimants, having absented themselves from the trial, the defendants' solicitors very properly wrote to them on 13th December, informing them that on the day on which the judge gave judgment he would also deal with the costs issues, and that it was in their interests to attend at the hearing. Despite that very clear warning the claimants did not attend the court on 19th December and Judge Knight made the order to which I have referred in their absence.[8]The application for permission to appeal against the costs order was first heard by Mance LJ on 27th April 2001. A number of issues and points were raised by the appellants. The defendants, the present respondents, were not present at that hearing. It is clear from the first judgment given by the learned Lord Justice that he did not have sufficient material before him to deal with the application. As a consequence, he adjourned it and he asked for some assistance from the defendants' legal advisers. They provided that assistance, and in so doing incurred costs in the sum of £527.57. It seems to me at present that the incurring of those additional costs was the fault of the appellants because they did not have their papers in order at the time of the hearing.[9]The matter came back before Mance LJ on 30th July 2001. He said in his judgment that he was indebted to the defendants' legal representatives for the assistance they had given. He granted permission to appeal conditional upon a payment into court of £1,750 within 14 days.[10]The issue that arises and upon which Mance LJ gave permission to appeal was whether Judge Knight had power to make a summary assessment of the costs relating to the hearing before Miss Recorder Worrall.[11]Section 13.8 of the Practice Direction relating to costs at Part 44 of the Civil Procedure Rules reads as follows:
"The court awarding costs cannot make an order for a summary assessment of costs by a costs officer. If a summary assessment of costs is appropriate but the court awarding costs is unable to do so on the day, the court must give directions as to a further hearing before the same judge."
[12]The important words in 13.8 are the words "a further hearing before the same judge". The reasoning behind that rule is clear. It is that only the person who has actually heard the case and knows about it is in a position to make a summary assessment of costs.[13]The appellants do not submit that they should not be ordered to pay the costs but submit that the judge had no power to make the order that he did and that there should be a detailed assessment. It is a very narrow point. The rule clearly states that the only person who can make a summary assessment is the judge who awarded costs at the hearing. It is a great misfortune that further costs have been incurred in what has been expensive litigation but, in my judgment, this court has no alternative but to allow the appeal on this very narrow ground, and in respect of the two items the subject matter of this appeal, to order that there should be a detailed assessment.

LORD JUSTICE MANTELL: I agree.

Order

Appeal allowed; detailed assessment; no order for costs in the appeal save that the appellants shall pay those costs which were incurred in the course of the application for permission to appeal incurred by or on behalf of the respondents and also any costs connected with this appeal which were incurred after the Part 36 offer dated 23rd November 2001, those costs subject to detailed assessment. (Order not part of the judgment of the court)

Cited in 3 later judgments