“396. Mr Siddiqi’s evidence (which was again unchallenged) was that Musst was advanced£1.7 million in funding for the Second Claim and will be obliged to pay£3.4 million and a second issue fee of£10,000 if successful. It was also his evidence that Musst has taken out an ATE policy under which it will pay a deferred premium of£557,760 if successful. His evidence was that Musst would have avoided these costs if it had been able to pursue the claims in relation to Crown II and Crown III in the First Claim. He accepted, however, that Musst would have to give credit for the additional fees which it would have incurred in the First Claim to the litigation funder and the additional premium which it would have had to pay to the ATE insurer. 397. This gives rise to a complex issue on which the parties made only brief written submissions. Mr Knox and Ms Bailey relied on McGregor on Damages 22nd ed (2024) at 22—017 to 22—027 where the editor sets out the cases in which a claimant who relies on an independent cause of action may be able to recover damages for additional costs which it has incurred in earlier proceedings against the same party. Mr Spalton and Mr Mo relied on the decision of the Supreme Court in Hirachand v Hirachand [2024]UKSC 43,[2025] AC 599 and the article “Costs as Damages” by Professor Louise Merrett published in (2009) 125 LQR 468 which Lord Richards JSC cited at [38] to [41] of that decision. 398. Berry v British Transport Commission[1962] QB 306 is one of the cases upon which McGregor relies for the proposition that one party may recover extra costs as damages from the same party if there is a separate and independent cause of action arising out of a different breach of contract or wrong. For example, Devlin LJ found as follows in Berry in support of this proposition: “I find it difficult to see why the law should not now recognise one standard of costs as between litigants and another when those costs form a legitimate item of damage in a separate cause of action flowing from a different and additional wrong.” 399. In Hirachand v Hirachand, however, the Supreme Court held that a claimant who had made a claim for financial provision under theInheritance (Provision for Dependants) Act 1975 could not recover an additional sum for the success fee which was payable under a CFA as part of the financial provision to be made for her by the Court. They did so because the success fee payable under the CFA was part of the claimant’s costs and was not recoverable under the CPR costs regime. 400. A brief analysis of these competing authorities demonstrates that the present case gives rise to a novel point (and one which is unlikely to arise very often). Thus, McGregor does not go so far as to state that a claimant is able recover costs as damages in the same action even if that party has an independent cause of action. On the other hand, Hirachand is not authority for the proposition that a claimant is not entitled to recover costs as damages in the same action if they have a separate and independent cause of action and those costs constitute the loss which flows naturally from the relevant breach of contract or wrong. 401. In my judgment, it is not appropriate for me to reach a final decision on this issue in the absence of full argument and since it appears to be common ground that there will have to be a consequential hearing to fix the amount of any sums owed to Musst and of any damages, I consider it appropriate to direct further written and oral submissions on this point if the parties wish to argue it. If Mr Siddiqi’s evidence is accurate, then the amount at stake could be very substantial. It may also be that this point is no longer a live one because I have only found Astra LLP and not Astra UK liable for negligent misrepresentation. But if they wish to take it, the parties should have the opportunity to present further argument on this issue.” “I find it difficult to see why the law should not now recognise one standard of costs as between litigants and another when those costs form a legitimate item of damage in a separate cause of action flowing from a different and additional wrong.”
“53. It is trite law that, as a general principle, the damages to be awarded for loss caused by tort are compensatory. In broad terms, and subject to any relevant limitations on recovery (for example, such as may arise in some cases from the limited scope of the duty owed, or from the need for recoverable losses not to be too remote a consequence of the tort), the claimant is entitled to be placed in the position he or she would have been in if the tort had not been committed. A classic statement of this principle is that of Lord Blackburn in Livingstone v Rawyards Coal Co(1880) 5 App Cas 25 , 39: “I do not think there is any difference of opinion as to its being a general rule that, where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.”
“In all actions accordingly on the case where the damage actually done is the gist of the action, the character of the acts themselves which produce the damage, and the circumstances under which these acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.”
“Evidential difficulties in establishing the measure of loss are reflected in the degree of certainty with which the law requires damages to be proved.” 57. Accordingly, where it is clear that the claimant has suffered substantial loss—as the injured child undoubtedly has—but the evidence does not enable it to be precisely quantified, the court must assess damages as best it can on such evidence as is reasonably available. It has to do so, notwithstanding that the loss cannot be measured precisely or with certainty, if the compensatory principle is to be honoured.” “I do not think there is any difference of opinion as to its being a general rule that, where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.” “In all actions accordingly on the case where the damage actually done is the gist of the action, the character of the acts themselves which produce the damage, and the circumstances under which these acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.”
“The principle is that a claimant is entitled, as a matter of right and of justice, to have the court quantify their full loss notwithstanding forensic difficulty.”
“32. In the context of civil proceedings generally, the liability (if any) of one party to pay some or all of the costs incurred in the proceedings by another party is treated as a separate matter from the substantive relief sought in the proceedings, and the costs of the proceedings will not be recoverable as part of any substantive relief. The Court of Appeal so held in Cockburn v Edwards(1881) 18 Ch D 449 , in which Cotton LJ said at pp 463–64: “I am of opinion that the difference between solicitor and client costs and party and party costs in an action cannot be given by way of damages in the same action, the latter costs being all that the Plaintiff is entitled to. Costs in another action stand on quite a different footing.” 33. This principle applies notwithstanding that in many cases where damages are sought in tort or for breach of contract or breach of statutory duty, or where equitable compensation is claimed, the loss suffered by the claimant could properly be said to include the costs incurred in pursuing the claim. In Seavision Investment SA v Evennett (The Tiburon)[1992] 2 Lloyd's Rep 26 , 34, Scott LJ said: “It is often the case that the costs of litigation would, if ordinary principles governing the recoverability of damages were applicable, represent recoverable damages. This is so not only in contract cases but also in tort cases. If A sues B on a negligence claim, whether in contract or in tort, the incurring by A of the costs of and incidental to the action will often, perhaps usually, be a foreseeable consequence of the negligent act. But it is, I believe, well settled that the recovery by A from B must be by way of an order for costs made in exercise of the section 51(1) discretionary power.” 34. The same is true where A seeks to obtain in a further action against B any costs in excess of those awarded in the first action. As it is put in McGregor on Damages , 22nd ed (2024) (“ McGregor ”), para 22–003: “It would make nonsense of the rules about costs if the successful party in an action who has been awarded costs could automatically claim in a further action by way of damages the amount by which the costs awarded to them fell short of the costs actually incurred by them”.” “I am of opinion that the difference between solicitor and client costs and party and party costs in an action cannot be given by way of damages in the same action, the latter costs being all that the Plaintiff is entitled to. Costs in another action stand on quite a different footing.” “It is often the case that the costs of litigation would, if ordinary principles governing the recoverability of damages were applicable, represent recoverable damages. This is so not only in contract cases but also in tort cases. If A sues B on a negligence claim, whether in contract or in tort, the incurring by A of the costs of and incidental to the action will often, perhaps usually, be a foreseeable consequence of the negligent act. But it is, I believe, well settled that the recovery by A from B must be by way of an order for costs made in exercise of the section 51(1) discretionary power.”
“38. In her analysis of these exceptional authorities in Costs as Damages (2009) 125 LQR 468, Professor Louise Merrett summarised the present state of the law as follows, at p 480: “Provided, therefore, the claimant can rely on a separate cause of action, he can claim damages relating to the costs of foreign proceedings, or even earlier English proceedings, provided those proceedings were not subject to the ordinary rules for the recovery of costs in civil cases”
“It can be seen that the policy justification for the rule has two limbs. First, the rules on the assessment of costs reflect the fact that there are good policy reasons for encouraging parties to exercise restraint which is to the benefit of all those who need to resort to litigation; and secondly, it would undermine the costs rules and, therefore, the policy behind those rules, if the party claiming costs in an assessment could seek to recover any unrecovered costs as damages.”
“58C Recovery of insurance premiums by way of costs (1) A costs order made in favour of a party to proceedings who has taken out a costs insurance policy may not include provision requiring the payment of an amount in respect of all or part of the premium of the policy, unless such provision is permitted by regulations under subsection.”
“The position is simply that the judge cannot in determining the appropriate relief include directly or indirectly any allowance for the success fee.”
“The difference between these contexts is made abundantly clear where section 59(1)(c) defines the costs of arbitration as including, not just legal costs, but “other costs” too. There is no parallel provision in the CPR. The CPR 's own definition of costs in rule 44.1 is clearly more limited. It is true that the arbitrator did refer in the Award and the addendum to CPR Pt 44 , but it is plain that this was essentially because of the provisions dealing with standard and indemnity costs and the different bases of assessments, as opposed to going to the meaning of “other costs”
“It is clear that in general the costs of funding are not recoverable as an item of costs in a Bill of Costs: see Hunt v R.M. Douglas (Roofing) Ltd. [1987] 11 WLUK 221 in which Purchas LJ held "there is no duty imposed upon the court to award party and party costs on an indemnity basis and by established practice and custom funding costs have never been included in the category of expenses, costs or disbursements envisaged by the statute and RSC O.62". As Mr. McDonald put it, the cost of funding litigation is not recoverable in and of itself (referring to the decision in Hunt cited above for the pre-CPR position and F&C Investments (Holdings) Limited v Barthelemy and Anor[2012] EWCA Civ 843 for the post CPR position).”
“166. A further question that arose before the trial judge, and which was the subject of a separate judgment, was whether group members to whom TfNSW was liable for private nuisance, and who had entered into a litigation funding agreement in connection with the proceedings, were entitled to claim as damages their reasonable litigation funding costs without needing to show: (i) that the nuisance of TfNSW rendered them impecunious so as to require litigation funding; (ii) that they would have pursued their claims against TfNSW without litigation funding if they had the means to do so; or (iii) that they negotiated over the terms of the litigation funding agreement. It seems that this issue had never been decided prior to this case, although related claims have been held to be reasonably arguable. Both the trial judge and the Court of Appeal held, more generally, that litigation funding costs were not recoverable as damages. That conclusion was correct. 167. The context in which this question arose was the litigation funding agreement entered into by various group members, by which the funder, International Litigation Partners No 16 Pte Ltd, undertook to pay all reasonable legal costs and disbursements associated with the litigation, to meet any adverse costs orders and provide security for costs, and to provide litigation management services. There was evidence that without the litigation funding agreement Hunt Leather and Ancio Investments would not have the financial resources to pay the legal costs of the proceedings or to take on the risk of adverse costs orders. In exchange for the funder's undertakings, the group members agreed to reimburse the funder for its costs and to pay a funding commission that ranged between 25% and 40% of any settlement or judgment sum. In the case of Hunt Leather and Ancio Investments, the commission was 40%. The amount of the litigation funding costs claimed by Hunt Leather and Ancio Investments as damages was that 40% commission.”
“169. Even if all the submissions above by Hunt Leather and Ancio Investments were accepted, the funding commission still would not be recoverable as damages because any such loss was not "the kind of damage ... which [TfNSW was] under a duty to prevent". The tort of private nuisance, as a tort against land, permits recovery of damages which reflect the decreased value of land and any losses that are "consequential upon the injury to the land". The 40% commission is neither an injury to land nor a loss that is consequential upon the injury to land. As the Court of Appeal rightly said, the funding commission is not "a consequence of any actionable nuisance". 170. Many of the reasons given by the Court of Appeal for rejecting this part of the cross-appeal by Hunt Leather and Ancio Investments reinforce the basic point that the funding commission was not a consequence of an injury to land: that different damages would be payable for the same private nuisance to different plaintiffs depending upon the voluntary arrangements that each entered into with a litigation funder; that an analogy can be drawn with the exclusion from damages of irrecoverable legal costs incurred in the same litigation (and a similar analogy can also be drawn with the exclusion from damages of additional expenses to manage a damages award where the intellectual abilities of the plaintiff were not impaired by the tort); and that the entitlement of the litigation funder to its commission only crystallises upon settlement or entry of judgment.”
“194. First, there can be no doubt that the entry into the funding agreements was a voluntary act by some group members. Moreover, the premise of common question 10 was that no assumption was to be made that the group member was impecunious or that any impecuniosity was brought about by the tortious conduct of the defendant, thereby serving to emphasise the voluntariness of the group member’s decision. Their decisions to do so, or to choose not to do so, might be attended by very different considerations. A supermarket which is a franchisee and a supermarket which is a branch of a major listed Australian company might both be affected in similar ways by the construction of the Sydney Light Rail, but each might have quite different approaches as to how they would approach the decision to enter into the funding agreement. 195. Those and similar considerations suggest that there are difficulties in treating the cost of the funding agreement as a component of the damages for which TfNSW would be liable. It seems decidedly odd that TfNSW would be liable for 40% more to a franchisee who entered into a funding agreement, than to a public company which operated a similarly sized and similarly affected supermarket next door. The group members who entered into funding agreements have chosen to bargain away the risk of being exposed to an adverse costs order and a liability to pay security for costs, as explained by the primary judge: 109. What the plaintiffs have really done is enter into a bargain with a third party, by which they agreed to give the third party an amount of money in return for the third party taking the risk on the litigation. The loss arises from the plaintiffs’ own conduct or decision to pursue the litigation on a risk free basis. Without reference to the defendant, the plaintiffs have increased “their loss” by 40% so as to ensure that they did not bear any costs associated with the litigation. They have not otherwise reduced their loss of profits flowing from the defendant’s conduct. They have agreed to “take a loss” on the amount they actually recover from the defendant by way of actual losses caused by the defendant, so as to enable them to not only pursue the litigation but to do so on a risk free basis. 110. The funder’s commission is different from litigation finance provide by a third party to a plaintiff to enable the plaintiff to pay its legal costs. The funder’s commission represents the funder’s return on its investment. The funder did not lend money to the plaintiffs. It agreed to pay the plaintiffs’ expenses in return for a slice of the damages. 111. In those circumstances, the causal chain between the defendant’s conduct and the loss has been broken. The plaintiffs’ conduct in entering into such an agreement was an intervening act which broke the causal chain between the tortious conduct and the so called loss. I do not accept that the defendant caused the claimed loss, being the funder’s commission. 197. We respectfully agree, although rather than describing the plaintiffs’ decision as being to increase “their loss” by 40%, we would say that they have promised to pay 40% of the damages to which they would otherwise have been entitled in return for an indemnity as to the costs of the litigation (including the potential liability for adverse costs orders and orders for security for costs). But we cannot accept the cross-appellants’ submission that the “real benefit” of the funding agreement was the prosecution of the proceedings. The “real benefit” was an indemnity for the certainty of the incurring of legal costs, and the practical certainty of a liability to provide security for costs, and the potential liability for an adverse costs order, all of which were incidents of the lead plaintiffs’ decision to prosecute the proceedings, and which were the quid pro quo for the funder’s “commission”. 198. In those circumstances, the litigation funder’s fee is not to be regarded as a foreseeable loss caused by the defendant’s nuisance, but instead as the voluntary act of the particular plaintiff.”
“We fail to see how that would serve any of the ends to which the legal system is directed.”
“202. Thirdly, at least in large measure, the benefit of the funding agreement was in meeting the group members’ costs and any liability for an adverse costs order or an order for security for costs. This suggests that if the quid pro quo provided by the group member – namely, the commission – were recoverable at all, it would be recoverable as a cost or expense of litigation, rather than as a component of damages. But if that is the correct characterisation, it presents an obstacle to the claim for the same amount as damages, in accordance with the principle in Anderson v Bowles [1951] HCA 61;(1951) 84 CLR 310 at 323; [1951] HCA 61: The legislature having determined that costs shall not be recoverable in proceedings of the character now in question, it would be contrary to the principles which these cases exemplify if they were included in the damages and thus were made recoverable by a side wind. 203. A Full Court of the Federal Court said in Gray v Sirtex Medical Ltd (2011) 193 FCR 1; [2011] FCAFC 40 at [15]: A distinction has long been drawn between damages and legal costs, such that a successful plaintiff cannot recover its costs of the proceedings from the defendant as damages, even though the defendant’s wrongful act caused the plaintiff to incur those costs: Cockburn v Edwards(1881) 18 Ch D 449 per Jessel MR at 459, per Brett LJ at 462 and per Cotton LJ at 463; Ross v Caunters[1980] 1 Ch 297 at 324E-G: Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358 at 365F-366B; Seavision Investments S.A. v Evennett & Clarkson Puckle Ltd (The “Tiburon”)[1992] 2 Lloyd’s Rep 26 at 34; Queanbeyan Leagues Club Ltd v Poldune Pty Ltd [2000] NSWSC 1100 at [45] and [46]; McGregor on Damages, 18th ed (Sweet & Maxwell, London, 2009) at [17-003]. A plaintiff’s ability to recover its costs of the proceedings from a defendant depends instead upon the exercise of a judicial discretion; and the amount (if any) that the plaintiff recovers is not assessed in the same way as damages, but “taxed” according to the applicable rules of Court. As Jessel MR put it in Cockburn at 459: ... it is not according to law to give to a party by way of damages the costs as between solicitor and client of the litigation in which the damages are recovered. The law gives a successful litigant his costs as between party and party, and he cannot be said to sustain damage by not getting them as between solicitor and client. To substantially the same effect is the rule stated by Devlin LJ in Berry v British Transport Commission[1962] 1 QB 306 at 328 that expenditure on litigation is not recoverable loss.”
“Fourthly, the entitlement of the litigation funder to its commission only accrued upon the entry of a judgment (or alternatively settlement). That not only tends to confirm the force of the previous point but also presents a conceptual difficulty, if not a paradox, identified by the primary judge at [67]: At the time of the assessment of damages and entry of judgment, the plaintiffs had not paid any amount to the litigation funder. Indeed, they did not become liable to pay any amount to the litigation funder at the time that the nuisance occurred. Whilst liability to pay might be viewed as a loss capable of being subject to an award of damages, it is a feature of this aspect of the claim that the liability to pay (which is said to be the loss) did not crystalise until after a judgment was otherwise entered in favour of the plaintiffs (whether by Court determination or agreement) for a sum of money. The plaintiffs only become liable to pay the funder’s commission after they become entitled to receive a sum from the defendant by way of a judgment (either determined or by consent). The plaintiffs are thus seeking to recover “a loss” which does not crystalise until after the defendant has been ordered, or has agreed, to compensate the plaintiffs in respect of their economic loss. It is a loss which the plaintiffs are not even obliged to tell the defendant about until a time of their choosing.”
“For those reasons, the funder’s commission is to be regarded as the incurring of a liability by the group members’ separate voluntary decisions, rather than a consequence of any actionable nuisance. If that be wrong, then at least in the premises of common question 10, which is that it is unnecessary to establish that the nuisance rendered a group member impecunious, we would not regard the scope of the defendant’s liability to extend to the funder’s commission.”
“52.1. Litigation funding arrangements are voluntary actions between parties to a funding agreement. The constituent terms, including the level of the funder’s fee, represent a commercial bargain. The client agrees to pay the funder’s fee in exchange for ensuring that they do not bear any costs associated with the litigation—that is the benefit of the client’s bargain. From the funder’s perspective, the funder’s fee is a return on its investment. As the HCA noted, the funding arrangements, precisely because they are a commercial bargain and are irrecoverable legal costs, do not sit easy with the nature of damages—the decision to agree the funder’s fee at that particular level is voluntary and operates as a novus actus, thereby preventing recovery as damages. 52.2. By analogy and for similar reasons, it is not reasonably foreseeable for a claimant to obtain funding with a funder’s fee set at a particular level. This is particularly when the well settled expectation of participants in the litigation system is for the costs regime to apply. Permitting irrecoverable costs as damages would circumvent that expectation. This is especially true when what is being sought is the costs of these proceedings (see the long line of authority cited above, noting that the litigation costs of proceedings are not recoverable as substantive relief). 52.3. A policy issue also arises because if a funder’s fee is recoverable as damages in tort, it would incentivise every litigant to enter into such an agreement. There is no downside to doing so, and there would be no incentive to bargain for a lower funder’s fee. This is particularly forceful since litigation funders are self-interested commercial parties seeking to profit from litigation. 52.4. Further, as noted by the HCA, there is a peculiar conceptual difficulty with permitting these costs as damages. The loss comprises of inter alia the ability to pay the funder’s fee, but that only crystallises when judgment is entered. Hence, the loss accrues when the defendant is ordered to compensate the claimant. At the time of making the claim, the loss has not crystallised. This is paradoxical, not least because it is tantamount to suggesting that the successful litigant has caused himself loss by winning. 52.5. Finally, if (as in Hunt Leather) the funder’s fee were calculated as a percentage of the damages, there could never be true compensation for the client because, upon recovering the funder’s success fee, the client would then be obliged to pay a slice of that to the funder—this is conceptually confused. While this does not arise in the instant case, it is submitted this is an important policy consideration because if a funder’s fee is recoverable as damages, there will be spillover effects on all such fees (not just multiples, as here).”
“58. Whilst I am conscious that I may be accused of resurrecting the old heresy of making a distinction between costs incurred in previous actions and costs incurred in the same actions, it does seem to me that there are powerful arguments of principle and practical justice for awarding standard costs as damages in cases, such as this, where the costs claimed relate to proceedings which have been case and cost managed and have proceeded to a conclusion and even more so where, as here, the claims have proceeded in tandem in the same proceedings. I am satisfied that this should be my approach. 59. As regards principle, in my view a good starting point is to consider what ought reasonably to be in the contemplation of the parties at the time of the commission of the wrong in question. Under the current costs regime they must be taken to know that parties to civil litigation are required to act in accordance with the overriding objective, which means enabling the court to deal with cases justly and at proportionate cost. This is what underpins the principles which apply to the recovery of costs under CRP 44, whereby the expectation is that the parties will only recover standard costs, which are proportionate as well as reasonable, unless the conduct of the other party is such as to justify an award of indemnity costs. It is what also underpins the exercise by the court of its case management powers and its costs budgeting powers. 60. Given that in this case, as in most other cases, the court gives case management directions and makes costs management orders which enable the parties to litigate their dispute in accordance with the overriding objective whilst incurring only reasonable and proportionate costs, it is difficult to see the justification for saying that the party in breach ought to be held liable for costs incurred by the wronged party which exceed those which the court has decided are reasonable and proportionate, unless the conduct of the other party justifies an award of indemnity costs. If the wronged party chooses to instruct lawyers who undertake work which is more extensive and expensive than that which the court has determined is reasonable and proportionate, it is difficult to see why the party in breach should have to subsidise that additional cost. 61. In my view, it is not sufficient for the wronged party simply to say that because it is not uncommon for there to be a shortfall it is not unreasonable for the party in breach to have to absorb that shortfall. If the wronged party is unable to persuade the court to award indemnity costs, or to sanction an increase from the approved costs budget, or to depart from the approved costs budget on detailed assessment for good reason, then it is difficult to see why he should be able to require the wronged party to reimburse him the shortfall. In my view, there is a strong public interest in equating the recovery of reasonable and reasonably incurred costs as damages with what is recoverable by way of costs underCPR Part 44 on the standard basis and only to award indemnity costs where the circumstances are such as would justify that award underCPR 44 . 62. In my view, these arguments apply with even more force where – as here - the costs claimed are costs which have been incurred and cost managed in the same litigation as the claim by the innocent party against the wronged party. The innocent party will know that both sets of costs will be cost managed and, in the majority of cases, there will be an overlap at least to some extent. To have a situation where either the separate costs are assessed on separate bases or, at the most extreme position contended for by the editor of McGregor, the subject of an assessment which is not undertaken on the standard or the indemnity basis but – presumably – by the trial judge applying solely common law principles of assessing damages, seems to me to be contrary to the overriding objective and practical justice and not compelled by principle. 63. If there is a justification for sanctioning an increase from the approved costs budget then the Romeros have their remedy underCPR 3.15 A. If there is good reason for departing from the approved costs budget on detailed assessment then the Romeros have their remedy underCPR 3.18 .”