William Thomas Stockler & Anor v The Corporation of the Hall of The Arts and Sciences [2025] EWHC 2262 (SCCO)

[2025] EWHC 2262 (SCCO)Case No K10CL612Case No SC-2024-BTP-001073
IN THE COUNTY COURT AT CENTRAL LONDON
SENIOR COURTS COSTS OFFICE
Thomas More Building,
Venue Royal Courts of Justice, Strand,Date 5 September 2025
London WC2A 2LL
Before
DEPUTY COSTS JUDGE JOSEPH
Between
William Thomas StocklerClaimantsAlexander Charles StocklerClaimantThe Corporation of the Hall of The Arts and SciencesDefendant
Mr Daniel Laking for Claimants on 23 and 24 June 2025 and thereafter Mr William Stockler, Solicitor, in person and for the second ClaimantMr Paul Hughes (instructed by Bates, Wells & Braithwaite London LLP) for DefendantHearing Hearing Dates: 23 and 24 June and 28 and 29 August 2025.
Approved JudgmentThis judgment was handed down remotely at 9am on Friday 5 th September 2025 by circulation to the parties or their representatives by email and by release to the National Archives..............................

DEPUTY COSTS JUDGE JOSEPH

[1]Names can sometimes be deceptive. The defendant in this action is the corporation which holds a long lease of the venue known as the Royal Albert Hall (“the Hall”) and which lets out the Hall for entertainment and other functions. The claimants are father and son respectively and holders of rights to “permanent” seats in the Hall. For a thorough explanation of the relationship, see the recent decision of Sir Anthony Mann, sitting as a High Court Judge, in George -v- The Corporation of the Hall of Arts and Sciences [2025] EWHC 1979 (Ch), a case in which the claimants in this action were also claimants in that one.[2]In 1993, the defendant introduced a scheme (the Ticket Return Scheme) by which seat-holders such as the claimants were entitled to return tickets which they did not wish to use for a particular event or performance taking place in the Hall in exchange for a payment. By a letter dated 5 April 2018, the Defendant amended the terms on which those payments would be made for events going on sale from 1 June 2018. A further amendment taking effect from 31 July 2020 was made later but that was outside the scope of this claim.[3]The claimants did not accept the defendant’s calculations of the amounts due by way of returns. They issued these proceedings claiming an account and payment of the monies which they maintained were due to them. The defendant counterclaimed for, amongst other things, a declaration as to the proper construction of the contractual arrangements which applied between the parties, which was a significant matter in dispute between them.[4]On 26 October 2022, the claimants issued an application for summary judgment pursuant to CPR Part 24 on the whole of the claim and on the counterclaim. The defendant followed on 11 November 2022 by issuing its own application for summary judgment, coupled with an application pursuant to CPR Part 3.4(2)(a), to strike out the claim and the defence to the counterclaim.[5]The applications came before Deputy District Judge Kirby KC (“the DDJ”). On 23 February 2023, the DDJ granted summary judgment to the defendant on the issue of the interpretation of the letter of 5 April 2018. He then stayed the balance of the claim and the counterclaim to enable the parties to seek to agree an account based on his ruling as to the interpretation of the contractual arrangements. The DDJ made further directions, including allocating the matter to the fast track. He ordered the claimants to pay the costs of the hearing (including the costs of the summary judgment applications, but limited to the issue of the interpretation of the letter of 5 April 2018), to be subject to detailed assessment, if not agreed.[6]The parties were not able to agree all outstanding matters. The matter came before DJ Mauger (“the DJ”) on 24 May 2024, after the matter had been transferred to the Chancery List. The DJ made various orders including the refusal of permission to the claimants to amend their Particulars of Claim, the dismissal of the balance of the claim, judgment for the defendant on the counterclaim in the sum of £3,054.24, with credit to be given for a payment in that sum, and an order that the costs ordered by the DDJ could now be assessed. In addition, the DJ made a further order as to costs as follows:
“5. The Claimants must pay the Defendant the costs of the claim (including the costs of the application for permission to amend) and counterclaim to be assessed if not agreed: (a) on the standard basis until 8 June 2023; and (b) on the indemnity basis from 9 June 2023.” (a) on the standard basis until 8 June 2023; and (b) on the indemnity basis from 9 June 2023.”
[7]On the first day of the detailed assessment there was some dispute as to the basis on which the DJ had ordered that part of the costs should be paid on the indemnity basis. The claimants contended that it was not as a result of unreasonable behaviour on their part. I found this difficult to comprehend, not least because CPR Part 36 did not apply. Although nothing turns on this, having considered DJ Mauger’s approved judgment, it was clear beyond doubt that indemnity costs were ordered as a result of unreasonable behaviour (see paras 81 and 82 thereof).[8]On 6 September 2024, the defendant commenced detailed assessment proceedings by serving a Notice of Commencement in form N252 claiming £162,789.37. The bill was split into three parts. Part 1 claimed those costs to be assessed on the standard basis, Part 2 claimed those to be assessed on the indemnity basis and Part 3 claimed the costs of drawing up and checking the bill.[9]Points of Dispute were served on 1 October 2024. Following Replies, a request for a detailed assessment hearing was made in Form N258 on 10 December 2024.[10]The matter came before me for that detailed assessment hearing on 23 and 24 June 2025. The claimants were represented by Mr Daniel Laking of Counsel, and the defendants by Mr Paul Hughes of Counsel. Various decisions and rulings on some of the Points of Dispute were made on those two days but it was not possible to complete the detailed assessment. I adjourned the matter part heard and it was listed for a further two days on 28 and 29 August 2025.[11]Some of the issues arising out of the Points of Dispute, and some of the decisions made on the first two days of the detailed assessment, are significant in the context of the issue of proportionality, and, in particular, as to whether there should be any further reduction on that ground for that reason. I mention them now.[12]The claimants had contended that the defendant had not been entitled to instruct a firm of solicitors outside the area in which it was based. I concluded, applying Wraith -v- Sheffield Forgemasters Limited [1998] 1 WLR 132, that it was reasonable for the defendant to have instructed a firm of solicitors in London 2 (as defined in the current Guide to Summary Assessment).[13]The defendant had claimed that the day to day conduct of the matter was suitable for a grade A fee earner. In relation to Part 1 of the Bill, I concluded that a grade B fee earner was reasonable but for Part 2, I allowed a grade A. Some of the Points of Dispute failed to distinguish between items in Parts 1 and 2 with the result that it was difficult to ascertain from those Points of Dispute which items under challenge were to be assessed on the standard basis and which were to be assessed on the indemnity basis. By doing this, the claimants attempted to place the onus of working out which items might relate to Parts 1 and 2 respectively on the defendant and/or the court. This was an approach which I found unhelpful and inexplicable, given the difference in the CPR as to how standard and indemnity basis costs are to be assessed – see below.[14]Ultimately, a significant number of the Points of Dispute were dismissed. I concluded that, regardless as to whether the items in the bill to which the Point of Dispute in question was directed related to Parts 1 or 2, the purported challenges were insufficiently particularised such that the defendant was unable properly to understand and/or to respond to them. See Ainsworth -v- Stewarts Law LLP [2020] EWCA Civ 178. That meant that a significant number of items in both Parts 1 and 2 of the bill were allowed as claimed.[15]At the hearing on 28 and 29 August 2025, Mr Hughes continued to represent the defendant. The first claimant, who is a solicitor, represented both himself and the second claimant. The line-by-line detailed assessment was completed. Having heard submissions on 29 August from both parties as to whether the bill should be further reduced on the ground of proportionality there was insufficient time for me to provide a judgment on that issue. I reserved judgment on it and adjourned part heard again. As there were the consequential matters still left to deal with, and because the detailed assessment of the defendant’s costs incurred in an appeal (comprised in a separate bill) had also to be undertaken, I directed that the matter be listed before me for a further two days.

Proportionality

[16]This is my judgment on the issue of whether the bill should be reduced further, on the ground of proportionality, following the line-by-line assessment.

The legal framework

[17]CPR Parts 44.3 and 44.4 apply. The relevant parts are as follows: 44.3 -(1) Where the court is to assess the amount of costs (whether by summary or detailed assessment) it will assess those costs – (a) on the standard basis; or (b) on the indemnity basis, but the court will not in either case allow costs which have been unreasonably incurred or which are unreasonable in amount. …(2) Where the amount of costs is to be assessed on the standard basis, the court will – (a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and (b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.(3) Where the amount of costs is to be assessed on the indemnity basis, the court will resolve any doubt which it may have as to whether the costs were reasonably incurred or were reasonable in amount in favour of the receiving party. …. (5) Costs incurred are proportionate if they bear a reasonable relationship to – (a) the sums in issue in the proceedings; (b) the value of any non-monetary relief in issue in the proceedings; (c) the complexity of the litigation; (d) any additional work generated by the conduct of the paying party; (e) any wider factors involved in the proceedings, such as reputation or public importance; and (f) any additional work undertaken or expense incurred due to the vulnerability of a party or any witness. … 44.4 – (1) The court will have regard to all the circumstances in deciding whether costs were – (a) if it is assessing costs on the standard basis – (i) proportionately and reasonably incurred; or (ii) proportionate and reasonable in amount…. (2) In particular, the court will give effect to any orders which have already been made. (3) The court will also have regard to – (a) the conduct of all the parties, including in particular – (i) conduct before, as well as during, the proceedings; and (ii) the efforts made, if any before and during the proceedings in order to try to resolve the dispute; (b) the amount or value of any money or property involved; (c) the importance of the matter to all the parties; (d) the particular complexity of the matter or the difficulty or novelty of the questions raised; (e) the skill, effort, specialised knowledge and responsibility involved; (f) the time spent on the case; (g) the place where and the circumstances in which work or any part of it was done; and (h) the receiving party’s last approved or agreed budget.”[18]The issue of proportionality, and how the court should apply it, was considered extensively in West and Demouilpied -v- Stockport NHS Foundation Trust [2019] Costs LR 1265. Their Lordships said this:
“10) The right approach to costs assessment 87. We are anxious not to restrict judges or force them, when assessing a bill of costs, to follow inflexible or overly-complex rules…..Taking the various points made above and drawing them together, we give the following guidance on an appropriate approach. 88. First, the judge should go through the bill line-by-line, assessing the reasonableness of each item of cost. If the judge considers it possible, appropriate and convenient when undertaking that exercise, he or she may also address the proportionality of any particular item at the same time. That is because, although reasonableness and proportionality are conceptually distinct, there can be an overlap between them, not least because reasonableness may be a necessary condition of proportionality: see Rogers Rogers -v- Merthyr Tydfil County Borough Council [2007] 1 Costs LR 77. at para 104. This will be a matter for the judge. It will apply, for example, when the judge considers an item to be clearly disproportionate, irrespective of the final figures. 89. At the conclusion of the line-by-line exercise, there will be a total figure which the judge considers to be reasonable (and which may, as indicated, also take into account at least some aspects of proportionality). That total figure will have involved an assessment of every item of cost, including court fees, the ATE premium and the like. 90. The proportionality of that total figure must be assessed by reference to both rule 44.3(5) and rule 44.4(1). If that total figure is found to be proportionate, then no further assessment is required. If the judge regards the overall figure as disproportionate, then a further assessment is required. That should not be line-by-line, but should instead consider various categories of cost, such as disclosure or expert’s reports, or specific periods where particular costs were incurred, or particular parts of the profit costs. 91. At that stage, however, any reductions for proportionality should exclude those elements of costs which are properly regarded as unavoidable, such as court fees, the reasonable element of the ATE premium in clinical negligence cases, and the like. Specifically, therefore, if the ATE premium is assessed as reasonable, it will not fall to be reduced by any further assessment of proportionality. 92. The judge will undertake the proportionality assessment by looking at the different categories of costs (excluding the unavoidable items noted above) and considering, in respect of each such category, whether the costs incurred were disproportionate. If yes, then the judge will make such reduction as is appropriate. In that way, reductions for proportionality will be clear and transparent for both sides. 93. Once any further reductions have been made, the resulting figure will be the final amount of the costs assessment. There would be no further stage of standing back and, if necessary, undertaking a yet further review by reference to proportionality. That would introduce a risk of double-counting.”
[19]After the line-by-line assessment, the calculation of the bill was as follows: Part 1 £55,581.38 Part 2 £52,055.00 Part 3 £12,877.50 Total: £120,513.88.[20]Part 1 is broken down as follows: Profit costs: £38,456.00 Counsels’ fees: £16,415.00 Court fees: £480.00 Transcription fees: £230.38 Total: £55,581.38.

The submissions on behalf of the claimants

[21]Mr Stockler initially took the position that it would be wrong if I looked only at Part 1 of the bill and that the right course was for me to look at the assessment of the bill as a whole, i.e. including Part 2 (which was assessed on the indemnity basis). However, after hearing the submissions of Mr Hughes on that approach and comments from me, he withdrew that submission and accepted that I should focus only on Part 1 of the bill.[22]Mr Stockler relied on the fact that at the start of the case, it was thought to be a small claim because the monetary value part of it was for less than £10,000, and the claim form indicated to that effect. In fact, it appeared to be of the order of £3,000. He relied on comments made by the DDJ which he submitted showed that the DDJ considered it was not appropriate for the claimants to be required to pay costs incurred by the defendant in dealing with and responding to other claims which might be made against it by other permanent seat holders, and which later arose as a result of this case. Mr Stockler submitted that it was apparent from the DDJ’s comments after giving judgment on the summary judgment applications, that the DDJ was keen that the parties should avoid the costs which would be incurred from that point onwards in pursuing or contesting the claimants’ claim for an account. Hence the direction by the DDJ, after the summary judgment applications had been determined, to stay the case to enable the parties to seek to agree an account based on his ruling as to the interpretation of the contractual arrangements.[23]Mr Stockler also pointed to the fact that DJ Mauger had ultimately dismissed the claimants’ claim for an account on the ground that it would be disproportionate to pursue it.[24]Mr Stockler’s principal point was that it was wholly disproportionate for the defendant to spend approximately £55,000 up to 9 June 2023 (that being the point from which indemnity costs were payable) given the nature and extent of the work which was reasonably required to have been undertaken up to then. In Point 2 of the claimants’ Points of Dispute, their arguments were summarised as follows: i) the claim was very small – approximately £3,200. A base figure for the defendant’s proportionate costs should be calculated by reference to between one and a half and two times the amount of the monetary value of the claim, which produced a range between £4,800 - 6,400; ii) an additional figure of approximately £1,000 – 1,500 should be added on for the non-monetary element of the claim; iii) a similar amount should be added on for the additional work required as a result of the claimants’ conduct; iv) the result of those calculations was that a proportionate amount for the standard basis part of the bill would be a figure between £6,800 and £9,400; v) the mid-point between those two figures is £8,100; vi) £8,100 is the proportionate figure for the defendant’s costs which should be allowed for Part 1 of the bill.[25]I observe that the figure of £6,800 in the final range contended for by Mr Stockler is likely to be calculated as £4,800 plus £1,000 for the non-monetary relief, and a further £1,000 for conduct. The figure of £9,400 is likely to be calculated as £6,400 plus £1,500 for the non-monetary element and another £1,500 for conduct.[26]It followed therefore that a figure of approximately £55,000 for Part 1 of the bill was, in Mr Stockler’s submission, manifestly disproportionate and that it had to be reduced to £8,100 in order for it to become proportionate.

Submissions on behalf of the defendant

[27]Mr Hughes took a somewhat different approach to this issue. As I have already mentioned, Mr Hughes rejected the initial approach adopted by Mr Stockler. He submitted that I should focus on the period between the start of the action and the point at which indemnity costs became payable (September 2022 – 8 June 2023) and he reminded me of the applicable factors set out in CPR Part 44.3(5).[28]Mr Hughes accepted that in relation to the monetary element of the claim, the sum in dispute was small and, in particular, was a figure which would ordinarily mean that the case would have fallen within the financial limit (£10,000) of the small claims track. He also reminded me that the DDJ had recognised this but, at the same time, had allocated the matter to the fast track. By doing so, there can be no doubt at all that the DDJ considered that the matter was unsuitable for the small claims track.[29]As to the non-monetary element of the claim, and the value to be attributed to it, Mr Hughes accepted that it was always difficult to place a financial value on such a claim but that some assistance could be gleaned from the decision of the DDJ to allocate the matter to the fast track. The notional financial limit placed on the fast track was £25,000 with the result that it could be inferred from the DDJ’s decision that he considered that the total value of the claim, including the non-monetary component of it (i.e. the claim for an account) was within the fast track limit.[30]As to complexity, Mr Hughes pointed out that the summary judgment applications had generated detailed skeleton arguments from both Counsel then instructed. It inevitably had some complexity given that it required the court to construe the contractual arrangements between the parties. Mr Hughes submitted that I had considered during the line-by-line assessment the amounts claimed by the defendant in respect of the fees of Counsel incurred throughout the claim and whether they, or any of them individually, were unreasonably incurred and/or unreasonable in amount. Having undertaken that exercise, he submitted that it was difficult to see how those fees, in particular, could or should now be further reduced on the ground of proportionality.[31]Mr Hughes also reminded me of my decision that it had been reasonable for the defendant to have instructed a firm of solicitors based in London 2. He submitted that following that decision, it inevitably brought with it a higher cost, which for the purposes of proportionality, could not be ignored. If it was reasonable to instruct a London 2 firm, it cannot then be said to have been disproportionate. He also emphasised my decision concerning which grade of fee earner should be allowed for the day to day conduct of the matter in Part 1 of the bill.[32]As to the conduct of the claimants, Mr Hughes pointed out that the effect of the DJ’s decision as to costs was that their unreasonable behaviour had not started until 9 June 2023. That meant that he could not and did not submit that any part of their conduct prior to that date should be regarded as unreasonable. Notwithstanding that, the evidence showed that they had fought the case hard (as they had been entitled so to do) but that had resulted in considerable cost. Put another way, Mr Hughes submitted that neither of the claimants had given up lightly.[33]As to any wider factors involved in the proceedings, such as reputation or public importance, Mr Hughes pointed out that the claimants themselves had accepted that there might be some damage to the Hall’s reputation had the claim succeeded. He reminded me that during my decision as to hourly rates, I had accepted and concluded that it would have been naïve to consider, if the claimants’ contentions were correct, and the Hall had wrongly operated the Ticket Return System and not fully compensated permanent seat holders for a number of years, that there was no one else waiting in the wings to bring similar claims against the Hall. Mr Hughes submitted that it was a viable and reasonable response by the Hall to defend a claim which could, if it had succeeded, have given rise to reputational damage and to other claims by other seat holders who then jumped on the same band wagon.[34]Taking all the relevant factors into consideration, Mr Hughes submitted that the value of the claim (and particularly the monetary part of it) ought not take on any special significance over and above any of the other factors. The amount arrived at for Part 1 of the bill following the line-by-line assessment was both reasonable and proportionate and should not be reduced further on the ground of proportionality.

Further submissions following the hearing on 29 August 2025

[35]This judgment was provided in draft to the parties in the usual way and on the usual terms following the hearing on 29 August. Mr Stockler made some comments on some parts of the draft and I invited Mr Hughes to respond to them. At the same time, I gave the parties an opportunity to make any further submissions they might wish to make on the issue of whether, and the extent to which, the dismissal of a significant number of the Points of Dispute on the principles set out in Ainsworth should be taken into account in considering the issue of proportionality, after the conclusion of the line-by-line assessment. I felt it appropriate to give the parties this further opportunity because, having checked my notes of the hearing, it was clear that neither party had addressed the point or been given the chance to do so.[36]Mr Stockler, in a further response, did not address this issue at all. Mr Hughes said that the defendant had no submissions to make save that even if this factor was not taken into account, the costs, as assessed following the line-by-line assessment, remained proportionate.

Discussion and conclusion

[37]I have deliberately not set out each and every argument deployed by each of the advocates and the above represents my summary of the important and critical submissions which they each made. I have taken into account everything that each of them said on this point, including in the Points of Dispute and Replies thereto.[38]In the course of the line-by-line assessment, in accordance with paragraph [88] of West, I took proportionality into account to a certain extent particularly in relation to the hourly rates to be allowed. The fact that I reached a different decision as to the grade of fee earner recoverable for the fee earner having day to day conduct of the matter for Part 1 than that for Part 2 is a specific example of this. Whilst at that point my focus was on reasonableness, as was said in West, although reasonableness and proportionality are conceptually distinct, there can be an overlap between them, not least because reasonableness may be a necessary condition of proportionality. It is important that I remind myself that some account has already been taken of proportionality in arriving at the figure of £55,581.38 for Part 1 of the bill.[39]I have no hesitation at all in rejecting the approach taken by Mr Stockler, as I have summarised it in paragraph 24 above. It is clear from the decision in West that there is no basis at all for taking an approach which is based on any multiple of the notional value of the claim overall, and certainly not as Mr Stockler has calculated. In deciding whether costs are proportionate, the court must, as well as other factors, consider the sums in issue and the value of any non-monetary relief. That cannot extend to ascertaining a range, based on what appear to be arbitrary multiples of the notional overall value of the claim (the justification for which arbitrary multiples is noticeable only by its conspicuous absence) and then reaching a mid-point of the combined notional value and arbitrary multiples as representing the proportionate sum to be allowed for costs in question. Such an approach is fundamentally flawed and would be manifestly to the applicable rules in the CPR as well as going against the authority which is binding on me, as set out in West.[40]Instead, the starting point must be to identify the work which was reasonably carried out in the period in question, in this case between the start of the case in September 2022, and up to and including 8 June 2023. I respectfully agree with what ultimately became the position of both parties that I should disregard the period for which indemnity costs were ordered (because, of course, proportionality has no part to play in the assessment of costs which are ordered to be paid on the indemnity basis) and focus on the period for which standard basis costs was ordered. It is imperative to remember that the court which assesses costs will, by CPR Part 44.4(2), give effect to orders already made.[41]During that period, it can be ascertained from the defendant’s electronic bill that the defendant carried out the following work: i) consideration of the proceedings i.e. the claim form and the particulars of claim, and acknowledging the claim; ii) consideration of the documents which were reasonably required to be considered in order to understand and properly to respond to the claim, and obtaining them from the defendant; iii) drafting the defence and counterclaim, considering the advice received from Counsel, and serving and filing it; iv) consideration of the defence to counterclaim; v) consideration of the claimants’ application for summary judgment, including the evidence in support of it; vi) drafting the defendant’s application for summary judgment, and the evidence in support of it, preparing exhibits, and issuing the application; vii) preparation for and attendance at the hearing before the DDJ and his judgment on the applications, including preparing an appropriate bundle, skeleton argument in support and a costs schedule, and consideration of the claimants’ similar documents; viii) consideration, response to and service of the responses to the claimants’ request for further information of the defence and counterclaim; ix) consideration of the claimants’ application for an order that the defendant should serve replies to requests for further information; x) considering the issue of the claimants’ claim for an account following the directions made by the DDJ on 23 February 2023 and preparing evidence in relation to it; xi) settlement negotiations including consideration of and response to offers made by both sides.[42]All of the above can be ascertained from the chronology at tab 4 of the defendant’s electronic bill and also from applying a filter to column C which isolates Part 1 of the bill, and another filter to column D which sorts the 565 items which comprised Part 1 of the bill into chronological order. When those filters are applied, it can be seen that Counsel was instructed at various times to advise and to draft certain documents and that his advice and drafting was considered by the defendant’s solicitors in the usual way. Paragraph 41 above is not an exhaustive list of all the work undertaken but represents the main highlights.[43]It is apparent from paragraph 41 above that considerable and significant work was undertaken, and had reasonably to be undertaken, in order for the defendant properly to respond and deal with the claimants’ claim. For example, if a party serves a request for further information, they can hardly be surprised if costs are incurred in responding to it. Similarly, if applications for summary judgment are made, it is inevitable that costs will be incurred in the types of tasks which are outlined in paragraph 41. There is nothing in that list which struck me as unusual or unreasonable work. It is the sort of work, including instructing Counsel, which I would expect to be undertaken in a claim of this nature.[44]The result of the line-by-line assessment is that the reasonable costs for the work which I have set out in paragraph 41 above is £55,581.38. I must now, pursuant to paragraphs [90] and [91] of West, assess the proportionality of that figure by reference to the applicable rules. If, and only if, I conclude that the reasonable sum is also a proportionate sum, no further adjustment can be made. It is only if I conclude that the reasonable sum is disproportionate that I must then carry out a further assessment, which is not to be line-by-line, but should instead consider various categories of cost, such as disclosure or expert’s reports, or specific periods where particular costs were incurred, or particular parts of the profit costs. In this case, the matter was not cost budgeted and it seems to me that the phase, “specific periods where particular costs were incurred, or particular parts of the profit costs” in paragraph [90] of West is the most apt for this case.

Are the reasonable costs also the proportionate costs?

[45]There can be no doubt that when the claimants issued this claim, they considered it was a small claim and they thought that it would be allocated to the small claims track. That much is apparent from their certification on the claim form. The DDJ allocated it to the fast track after he had ruled on the summary judgment applications. He was perfectly entitled to reach the conclusion that the case was unsuitable for the small claims track. CPR Part 26.6 (as it was before 1 October 2023, allocation having taken place on 23 February 2023) sets out the circumstances and criteria which will normally result in allocation to the small claims track.[46]Mr Stockler himself put it this way when discussing the matter with the DDJ after judgment had been given on the summary judgment applications: “When I start something on the small claims track because I say that the case is worth only £10,000 I know what risk I am taking then. I am now being told that I am actually going to have a risk of much, much more which I would never have started the proceedings if that was the case. That cannot, that cannot be fair or right.” (see page 19 E-F of the transcript).[47]The DDJ then decided to allocate to the fast track. I have deliberately stressed the word “normally” which is contained in CPR Part 26.6 because allocation is always a matter for the court to determine. The rule expressly contemplates circumstances in which the court will depart from a normal expectation. Any party, whether claimant or defendant, when bringing or when faced with a claim which, under the rules might normally be allocated to a particular track, knows or ought to know that the normal allocation might not happen, and, if so, that there will be costs consequences as a result.[48]The claimants therefore ought to have known, from the point at which they issued the claim, that even though they had indicated on the claim form that their claim was within the small claims limit, it might end up being allocated to a different track. It is clear from the transcript that the DDJ allocated to the fast track because of the amount of time that the case had already taken up and the likely costs which would be incurred in dealing with the claim for an account, which was yet to be resolved. Mr Stockler is not entitled to maintain that at the outset his “risk” was that the claim would be allocated to the small claims track (with the attendant costs consequences). In fact, his “risk” was that it might be allocated to another track which had different costs consequences to those which pertain to a small claim.[49]The conclusion which I reach is that the amount of the monetary value of the claim was plainly within the small claims track limit but that this factor should not take on any special weight in terms of deciding whether the reasonable costs are also proportionate. The rules do not endow this factor with any status which is greater than any of the other factors. Counsel for the defendant invited the DDJ to conclude that the claim ought to have been issued as a Part 8 claim and therefore that it should have been allocated either to the multi-track or to the fast track (see page 16G-H). In the end, the DDJ picked the middle course by allocating to the fast track.[50]The value of any non-monetary relief is always difficult to assess. The DDJ clearly did not consider that allocation to the multi-track was appropriate and the fast track has a notional financial limit of £25,000. The DDJ plainly regarded the claim for an account as a significant matter and I respectfully agree with him. The result is that when the component parts of the claim are taken together, as they must be, this was a claim which was unsuitable for the small claims track but not appropriate for the multi-track. It had a significant overall value. For the purposes of this judgment, I proceed on the footing that, overall, the value of monetary and non-monetary elements of the claim, taken together, was of the region of £25,000.[51]I agree with Mr Hughes that this claim had some complexity. It is appropriate in this case to combine the consideration of the issue of complexity with the issue of the skill and effort required to deal with it. Ascertaining the correct construction of contracts and/or contractual arrangements is sometimes not straightforward and can be problematic. I considered these issues when I concluded that the reasonable course was for a London 2 firm to have been instructed and that the day to day conduct of the matter was suitable for a grade B, as opposed to a grade A fee earner. This particular case was not an especially difficult matter relating to contractual construction but it nevertheless required specific expertise to present. Counsel instructed had to refer to the applicable case law on the approach which the court is to take when construing contracts, and appropriate submissions had to be made. I accept Mr Hughes’s submission, that, having reached the conclusions I reached, it is difficult to see how the costs which have been assessed as being reasonable should afterwards be considered to be disproportionate. As he put it, the reasonable instruction of a London 2 firm necessarily carries with it the result that costs are going to be higher.[52]Having re-read for the purposes of reaching this judgment the applicable part of the files, I accept Mr Hughes’s submission that the claimants were not people who gave up lightly. They were fully aware after the hearing before the DDJ that substantial work in relation to the issue of an account was likely. Whilst that work formed only part of Part 1 of the bill, the fact that they carried on with it to another hearing is indicative of the strength of Mr Hughes’s submission. The DDJ had encouraged the parties to resolve this element of the claim but that did not occur and the hearing before the DJ was the point at which it was resolved.[53]It is right that the claimants’ conduct during Part 1 must not be characterised as unreasonable but that, of itself, does not matter in the scheme of considering whether the reasonable costs are proportionate. It is not a pre-requisite for the conduct of the parties to have been unreasonable for it to be taken into account. It is apparent from the work which was undertaken in Part 1 of the bill that the claimants were fighting hard, for example, by making requests for further information and by issuing an application about that against the defendant.[54]I now turn to the issue of whether there were any wider factors such as reputation or public importance in this case. Mr Hughes drew to my attention the comments I made on the first day of the detailed assessment to the effect that it would have been naïve to expect that there was no one else waiting in the wings to bring similar claims against the Hall. This issue was discussed with the DDJ, as can be seen from page 16C-D of the transcript of the proceedings after judgment, in which Counsel for the defendant said this:
“I am instructed in terms of the scale of what is going on here, this is a (sic) 320 seat holders, 1268 seats, 300 ordinary performances a year, in 2022 members returned 179,000 tickets for TRS. So if this is a claim on which the claimant has succeeded or does go on to succeed the defendant would have to recalculate the amount to be credited, or might have to depending on the impact on the other members, for each of those seats. It is a vast, vast exercise…”
[55]Mr Stockler is correct that the claimants should not be required to pay costs incurred by the defendant in dealing with those other potential claims. But the defendant is not claiming those costs, or costs on that footing, in Part 1 of the bill (or at all). The defendant is claiming, and is entitled to claim, the costs of dealing with the claimants’ claim for an account in respect only of their personal entitlement under the TRS scheme. That itself was an onerous task. There is no doubt in my mind that, objectively viewed, the defendant was entitled to take the view that the action brought by the claimants had, or could have had, a significant, genuine and concerning impact on its reputation. I observed on the first day of the detailed assessment that the Hall occupies a considerable status and affection in the hearts and minds of the general public and has done so for many, many years. The status of the defendant, it being the corporation which operates the Hall, means that it was entitled to take the action brought by the claimants very seriously, and with an eye to any potential further actions which might be brought by other seat holders.[56]That, of course, does not mean that the defendant then becomes entitled to spend unlimited funds in defending the action by the claimants and/or in pursuing its counterclaim. Part 1 of the bill was claimed at £76,066.38 (see tab 11 of the bill) which means that the line-by-line assessment has resulted in a reduction of £20,485 i.e. just under 27%. That is a significant, but not an uncommon, reduction in a standard basis assessment but it also means that the court has already carefully considered, and reduced, the claim in Part 1 of the bill.[57]I consider that there is one further factor which I must take into account as part of all the circumstances of the case. As I have recorded, a significant number of the Points of Dispute were dismissed pursuant to Ainsworth because they were insufficiently particularised. Put another way, I found that the defendant was unfairly disadvantaged by the very limited details which the claimants had elected to provide in support of those Points of Dispute. The purpose of Points of Dispute is to raise credible and justifiable challenges to items in the bill, in this case, on the grounds of both reasonableness and proportionality (because Part 1 was to be assessed on the standard basis). The Points of Dispute failed, in material respects, and on several occasions, to set out a proper basis on which many items in the bill were challenged.[58]It is difficult to see how the issue of overall proportionality could then be used by the claimants to reduce the reasonable costs after the court has ruled that Points of Dispute relating to so many items in the bill did not contain viable challenges. Such an outcome would be inherently unfair to the defendant as the claimants would obviate and potentially reverse their failures by obtaining a reduction to the reasonable costs, in essence, through “the back door”. It is important to stress that this is not a decision which should be construed as meaning that whenever any Point of Dispute is dismissed on Ainsworth principles that automatically means that the costs concerned cannot then be further reduced on the ground of proportionality. Whether or not there should be any reduction, and the extent of it, will depend on the facts and circumstances of each case, and each case will be a matter for the evaluation of the judge. In this case, Mr Hughes is correct to submit that this factor has not taken on any decisive significance.[59]I do not consider that the reasonable costs, as assessed following the line-by-line assessment, are disproportionate. Given that conclusion, it is unnecessary for me to carry out any further assessment of Part 1 of the bill.

Cited in 1 later judgment