XX (a protected party by her husband and litigation friend YY) & Anor v Jordan Young & Anor [2025] EWHC 2443 (SCCO)

[2025] EWHC 2443 (SCCO)Case No QB-2020-000273SCCO Ref: SC-2024-BTP-000582
IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE
Venue Thomas More Building, Royal Courts of Justice, Strand, London, WC2A 2LLDate 24/09/2025
Before
COSTS JUDGE NAGALINGAM
Between
(1) XX (a protected party by her husband and litigation friend YY)Claimants(2) ZZClaimant(1) Jordan YoungDefendants(2) Aviva Insurance LimitedDefendant
Mr Mason (instructed by Leigh Day) for 2nd ClaimantMs McDonald (instructed by DWL Law LLP) for 2nd DefendantHearing Hearing dates: 01/09/2025
Approved JudgmentThis judgment was handed down remotely at 16.30pm on 25/09/2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................COSTS JUDGE NAGALINGAM

Costs Judge Nagalingam:

[1]This judgment concerns the 2nd Defendants’ application for permission to appeal my judgment dated 4 August 2025. That judgment concerned my decision on proportionality and effectively brought the detailed assessment of the 2nd Claimant’s costs (quantum only bill) to an end.[2]The 2nd Claimant’s bill was originally drawn in the sum of £517,985 and following a detailed assessment was reduced to £339,565.16 (plus applicable interest). The principal sum has therefore been reduced by £174,419.84, which is a reduction of some 34%.[3]As per paragraph 4 of my judgment dated 4 August 2025, the reduction to profit costs (exclusive of cost of assessment) amounts to some 38%. It is not an insignificant reduction, and the parties have had the benefit of interim written judgments during the course of the detailed assessment – which was heard over two separate 3-day sittings.[4]It is against this backdrop of reductions that the 2nd Defendant seeks permission to appeal as a route to seek further reductions to an already heavily reduced bill of costs.

Ms McDonald’s submissions

[5]Counsel Ms McDonald appears on behalf of the 2nd Defendant and her oral submissions are aided by a helpful skeleton argument.[6]I consider it useful to quote from paragraphs 25 and 26 of counsel’s twenty-seven paragraph skeleton argument in that it crystallizes what the 2nd Defendant seeks.[7]The relevant section is headed “Permission to Appeal” and states: [25] The 2nd Defendant seeks Permission to Appeal the Judges (sic) decision in relation to proportionality/conduct [a] The [2nd] Claimant’s conduct as revealed in the surveillance evidence is so significant that if a CPR 44.11 reduction is not made for conduct in this case one will never be made. [b] This means that Defendants must run every case to trial to get a finding of fundamental dishonesty before they can run a CPR 44.11 argument. [c] Paragraphs [47] & [48] of the Judgment appear to reverse the Burden of Proof and ignore the fact that the [2nd] Claimant filed no evidence & offered no alternative explanation as to the blatant inconsistencies shown on the CCTV footage and the Experts Supplemental Reports. [26] It would be of great assistance to all Defendant Insurers to have guidance from an Appellate Court as to fundamental [dishonesty] cases that should be run to trial and cases that can be dealt with at Detailed Assessment.”[8]Guidance as to the test for the court to apply when considering granting permission to appeal (first appeal) may be found at CPR 52.6(1)(a) and (b).[9]Whilst not explicitly stated, paragraph [25] of counsel’s skeleton argument seeks permission to appeal under CPR 52.6(1)(a), i.e. where “the court considers that the appeal would have a real prospect of success”, and paragraph [26] seeks permission under CPR 52.6(1)(b), i.e. where “there is some other compelling reason for the appeal to be heard”.[10]As a headline submission, Ms McDonald submits that permission to appeal should be granted because it would be helpful for future cases where a defendant has to make the “difficult decision” to proceed to trial and seek a finding of fundamental dishonesty (FD), or in the alternative proceed to detailed assessment to seek a CPR 44.11 finding of misconduct.[11]She says the juxtaposition between the two options is problematic and that an appellate court could give guidance.[12]Ms McDonald recounted the chronology of offers in the main action, and reiterated the 2nd Defendant’s view that the speed with which the 2nd Claimant revaluated the quantum of her claim must be indicative of something worthy of explanation.[13]Ms McDonald repeated arguments made in the assessment as to the significance of a failure by the 2nd Claimant to put in evidence in response to the surveillance evidence disclosed and the expert comment made in relation to the same. Ms McDonald argued the burden of proof was on the 2nd Claimant to prove her claim and the 2nd Claimant failed to do this.[14]During the course of her submissions, Ms McDonald confirmed that the 2nd Defendant accepted my decision at paragraph 43 of my judgment dated 4 August 2025 where “I rejected the assertion that on an assessment of costs I could retroactively conduct a trial of an issue that the [2nd] Defendant had alleged but neglected to run to trial as an argument.”[15]However, Ms McDonald informed me that the Federation of Insurance Lawyers (FOIL) have apparently taken an interest in this case and are concerned that if my decision stands it means that all similar disputes would have to go to trial and this would “block the courts”.[16]Ms McDonald consistently returned to the theme, or perhaps more accurately presupposition, that there is a juxtaposition between a finding of FD versus awaiting a detailed assessment to secure a CPR 44.11 misconduct finding.[17]Ms McDonald submits that a finding of FD requires that an FD argument is maintained all the way to trial, save for those cases where FD only arises at trial due to something said or revealed at trial / a Claimant’s performance at trial undermining the evidence.[18]That may well be the case, but I doubt very much that the legal profession as a whole is so awash with fundamentally dishonest claimants (who presumably have evaded any form of detection or concern from those who represent them) that the fact a trial may be required would be somehow problematic.[19]As a matter of intrigue, I also queried why the 2nd Defendant considered an appellate court might take an interest in this matter. Ms McDonald’s response was to advise that to the best of her knowledge there was no current appellate decision she could find covering this point, i.e. the notion of a tension between CPR 44.11 and section 57 of the Criminal Justice and Court Act 2015.[20]Her alternative position is there must be a lacuna in the rules as to how a suspicion of FD ought to be addressed for assessment purposes as compared with deploying CPR 44.11.[21]Ms McDonald wished to stress that the 2nd Defendant accepts the accident circumstances, and accepts the 2nd Claimant was injured. The 2nd Defendant’s concern is that from around 2020 onwards the 2nd Claimant exaggerated her symptoms, misled examining medico-legal experts, and even involved family members (as witnesses) to collaborate in the alleged illusion, the net effect of which was that valuation was based on ongoing symptoms which lasted well beyond what might have ordinarily been expected.[22]Ms McDonald described the underlying case facts as “interesting” and submits that having an appellate court decision would assist as to how such a scenario should be approached in the future.[23]Ms McDonald sought to focus my mind on four key areas, being; the absence of an authoritative decision; the notion of a tension between Section 57 FD and CPR 44.11; the notion that FD is “still a fairly new concept”; and (albeit anecdotally) Ms McDonald’s suggestion that FD is “regularly argued” in small and fast track claims.[24]Ms McDonald also advised me that surveillance evidence is usually triggered on claims with a value of more than £1m. This strikes me as anecdotal, but certainly not illogical.[25]Ms McDonald then addressed the inclusion of an 81 page bundle of expert evidence and comment in relation to the surveillance evidence, as part of the documents available to me in these detailed assessment proceedings.[26]She also addressed the question of whether consideration of that bundle would be straying into the provenance of a trial judge, expressing the view that consideration of conduct under CPR 44.11 cannot be the same process under which a court would make a finding of fundamental dishonesty. To some degree, the 2nd Defendant is seeking to attach a level of importance to that question such that an appellate court might be inclined to express a view.[27]Paragraph [24] of counsel’s skeleton sets out the areas in which the 2nd Defendant considers that I fell into error, or otherwise failed to consider or address matters relevant to the issue of whether further reductions should be applied.[28]Namely, that I neglected to consider the 2nd Claimant’s “failure to file or serve evidence putting forward any alternative explanation” for accepting a sum much less than that pleaded; that I did not address/consider making a proportionality based reduction for the “period after the Claimant should have recovered”; that I did not address/consider a proportionality based reduction “for future losses given that no damages were recovered for this head of claim”; and that I did not address/consider a proportionality based reduction “for the Accommodation claim given no damages were recovered for this head of claim”.[29]For the avoidance of doubt, whilst the preceding paragraphs are a summary of Ms McDonald’s oral submissions, I have taken her helpful skeleton argument (and references therein) into account in the decision set out below.

Decision

[30]By way of a brief reminder, the 2nd Claimant was in the process of crossing Bury Street in Edmonton, London shortly after 11pm when she was struck by a vehicle being driven by the 1st Defendant, who failed to stop at the scene. The 2nd Claimant was 62 years of age at the time.[31]During the relevant conduct period, liability was unresolved but work was undertaken on the presumption that the 1st Defendant was at least primarily liable. Helpfully, the 2nd Defendant confirmed they were the RTA insurer and would be liable to satisfy any unsatisfied judgement obtained against their insured driver.[32]The 2nd Claimant sustained a left pelvic fracture, a left displaced acetabular fracture, right process fracture at L2, bilateral pulmonary contusions and a right pneumothorax. She also suffered a left toe displacement, lower back pain, damage to several teeth and psychiatric injuries.[33]The 2nd Claimant required surgical intervention to fix both her pelvic and acetabular fractures and was left with decreased mobility. It was also concluded that the likelihood of her needing a hip replacement operation sooner than would have otherwise been the case had increased.[34]There is no dispute that in the first 3 years post-accident the 2nd Claimant required assistance at home and that her interaction with her local community had been curtailed. The 2nd Claimant was also left with persistent urinary and gynaecological symptoms.[35]The 2nd Claimant had a poor grasp of English but pre-accident frequently interacted with the local Turkish community, who rallied around her post accident in terms of home visits and domestic support.[36]Even if one were to accept the 2nd Defendant’s evidence only, it is an unfortunate coincidence that by 2020, further recovery/treatment was hampered by the Covid-19 pandemic. Lockdown measures had an isolating impact on many, as well as disrupting medical care. The 2nd Claimant was not immune in this regard.[37]Prior to a joint settlement meeting in November 2022, the 2nd Defendant presented surveillance evidence and relied on expert comment which was suggestive of the 2nd Claimant’s recovery being more advanced than she had reported when examined.[38]The 2nd Defendant went as far as to allude to an intention to argue fundamental dishonesty (FD) and whether that was tactical or not, the fact is the matter settled soon after the joint settlement meeting at a sum which all sides accept was for significantly less than the sums originally pleaded.[39]The paying party 2nd Defendant has sought to make the settlement sum their major point, and raise a question as to whether they ought to have proactively addressed the consequences of the 2nd Claimant’s apparently dramatic change in valuation before the quantum proceedings were concluded, or wait until the detailed assessment of costs.[40]After six days of submissions at a detailed assessment and further time sat in private, the 2nd Claimant’s bill was significantly reduced and then a further reduction applied on the basis of proportionality. This was explained in a written judgment dated 4 August 2025.[41]What I have been clear about throughout is that proportionality is not to be used as a ‘rescue’ submission to save a poor set of points of dispute. Proportionality is not intended to be a tool by which the court can consider further areas of reduction that the paying party never argued for.[42]Indeed in this matter, I was highly critical of the quality of the point of dispute concerning internal communications in particular. However, as poorly drafted an objection that was, I still concluded I could look again at that tranche of costs when considering proportionality, namely because it was raised in the points of dispute. In this regard I am perplexed by paragraph [20][c][a] of counsel’s skeleton argument because my 4 August 2025 judgment clearly does cite internal communications as a proportionality based reduction.[43]Accordingly, and with reference to paragraphs [24] to [26] of counsel’s skeleton argument, this appeal does not concern my approach to internal communications, but rather whether I ought to have gone further with reductions to other tranches of disputed costs (which are discussed below).[44]CPR 52.6 provides guidance when the court is considering whether to grant permission to appeal and provides that: “(1) Except where rule 52.3B, rule 52.7 or Rule 52.7A applies, permission to appeal may be given only where—(a) the court considers that the appeal would have a real prospect of success; or(b) there is some other compelling reason for the appeal to be heard. (a) the court considers that the appeal would have a real prospect of success; or[45](2) An order giving permission under this rule or under rule 52.7 may—(a) limit the issues to be heard; and(b) be made subject to conditions.”[46]As observed above, I consider the 2nd Defendant is seeking permission on both bases and I am there bound to deal with both. “CPR 52.6(1)(a) - the court considers that the appeal would have a real prospect of success”[47]Contrary to the 2nd Defendant’s submissions, the case facts are not interesting. The 2nd Claimant was crossing a traffic light controlled section of road when she was hit by a vehicle driven by the 1st Defendant. Whilst it was thought that the 1st Defendant was likely exceeding the speed limit immediately prior to or at the point of impact, there was some uncertainty as to the status of the traffic lights and whether it was safe to cross, or indeed safe for the driver to proceed. The accident also took place late at night.[48]There is nothing factually interesting in those case facts, nor is there in the subsequent exercise to quantify damages. That does not mean the case lacked complexity. However, a case does not need to be ‘interesting’ or novel in order to be deemed complex.[49]One aspect of the arguments advanced, which the 2nd Defendant has never adequately addressed, is the fact the settlement terms for quantum were expressed as being “net of contributory negligence” (emphasis added).[50]In this regard, and for proportionality purposes, I concluded it would be wrong to treat the settlement sum of £149,000 as though it was a gross figure because both parties clearly accepted there was a litigation risk with respect to liability.[51]With regards to the 2nd Defendant’s burden of proof argument, I consider the Claimant did prove her claim. £149,000 (net of any deductions for contributory negligence) is a significant sum of money and one cannot imagine a professionally represented insurance backed client parting with such a sum if the Claimant had not proven her case.[52]Questions as to competing valuations, litigation risk and appetite for a trial are distinct from the core requirement to prove one’s case. Further, one is not compelled to respond to surveillance evidence which had only been disclosed on an informal basis. One therefore recognises that unless and until the 2nd Defendant had obtained permission to rely on the same, there was no deadline running or order directing a formal response.[53]CPR 44.11 concerns the “Court’s powers in relation to misconduct” and provides that:
“44.11 (1) The court may make an order under this rule where – (a) a party or that party’s legal representative, in connection with a summary or detailed assessment, fails to comply with a rule, practice direction or court order; or (b) it appears to the court that the conduct of a party or that party’s legal representative, before or during the proceedings or in the assessment proceedings, was unreasonable or improper.”
[54]The 2nd Defendant relied on CPR 44.11(1)(b) and at all times in the assessment stressed that it was the conduct of the 2nd Claimant that was unreasonable or improper, not that of her legal representatives.[55]As per CPR 44.11(2), the 2nd Defendant sought, and now maintains, an order for disallowance of “part of the costs which are being assessed”, and any costs consequences that follow from such a disallowance.[56]Addressing paragraph [24][e] of Ms McDonald’s skeleton argument, I reject the assertion that I did not address or consider applying a reduction on the grounds of proportionality for the period after the 2nd Defendant suggest the 2nd Claimant ought to have made a full recovery. In reality, that is not an approach which was open to me to adopt absent retroactively assessing the medical evidence and unilaterally deciding on a notional recovery date.[57]The purpose of a detailed assessment is not to hear and rule upon arguments a party wish they had run but failed or declined to do so. Further, it would be manifestly unjust to make such a finding as the date of full recovery without permitting a separate and distinct hearing to decide upon that fact.[58]The clear absurdity of such a scenario ought to signal as clear a warning as one might hope for as to the importance of ensuring an order for costs reflects what was intended. In the alternative, it also perhaps underlines that if a party feels they have a good case on FD then they should run it, or at the very least use it as a lever to secure a costs order which protects their position.[59]If the 2nd Defendant wanted an order for costs which was time limited then they could have sought agreement for such a term, or otherwise made submissions in support of such an order before the case was concluded.[60]In this regard, the paying party is directed to CPR 44.2(6)(c), which is the provision for the court to order “costs from or until a certain date only”. No such order arises in this matter and the paying party is reminded the order giving rise to costs was by agreement between the parties. The 2nd Defendant cannot now, long after the event, retrospectively seek a time limited order.[61]As to the costs associated with pleading future losses or accommodation (see paragraph [24][f] and [g] of counsel’s skeleton argument), the 2nd Defendant is referred to the fact that these arguments were pleaded in the points of dispute, and considered as part of the detailed assessment.[62]The 2nd Defendant is reminded that in this assessment, as well as disallowing fees caused by the engagement of leading counsel, I have reduced the profit costs by around 38%. The 2nd Defendant is referred to my judgment dated 19 March 2025 in this matter in which I provided a comprehensive written analysis of my assessment of the work done on documents.[63]That exercise, which included a careful analysis of work done on the schedule of loss, led to the work done on documents being reduced from 516.3 hours to 294.4 hours (of which more than 50% was allowed at a Grade D rate). Overall, that equates to a 44% reduction.[64]If the 2nd Defendant wanted to limit their liability for work relating to specified heads of loss, namely future losses and accommodation, then they could have pursued or secured agreement to an issues based costs order. They didn’t.[65]In this regard, the 2nd Defendant is again referred to the suite of costs orders available to a court under CPR 44.2(6) and is reminded of the terms of the costs order they agreed to. If the 2nd Defendant had wished to limit the recovery of the 2nd Claimant’s costs for work relating to future losses and accommodation, then it was within their gift to seek such a limiting provision was included in the order for costs.[66]Instead, as they were entitled to, the 2nd Defendant argued conduct and reasonableness during the course of detailed assessment proceedings. The 2nd Defendant is aware that reductions have already been applied on the grounds of reasonableness for work done in relation to the schedule of loss. That inevitably includes work relating to future losses and accommodation.[67]Further, the 2nd Defendant did not make out a cogent argument that the 2nd Claimant recovered nil for future losses or accommodation. The damages recovered, being net of contributory negligence as they were, were agreed after a joint settlement meeting. The 2nd Defendant may infer what proportion of the net settlement sum might be assigned to future losses and/or accommodation. They cannot categorically assert that nil was recovered for those heads of loss.[68]Reductions on the grounds of proportionality are no longer prospective. I assessed the bill and in doing so I assessed the amount of costs I deemed to be reasonably incurred and reasonable in amount. I concluded that the total assessed sum was disproportionate and identified a tranche of costs that I considered obviously ought to be subject to further reduction, i.e. internal communications.[69]Once that further reduction had been applied, I considered the resultant sum to be proportionate. I did not consider any further reductions were warranted. My wide discretion in that regard has been exercised. Proportionality is not decided by means of some form of matrix threshold and I am not required to go in search of further areas of reduction once the line by line assessed costs have been reduced to a proportionate sum.[70]The 2nd Defendant may not like the final assessed sum, but disagreement with the final figure is not a basis of appeal.[71]Faced with the same circumstances in the future, those representing the 2nd Defendant may choose to protect themselves by securing a suitable issues based, time based or percentage based costs order if they are certain of the strength of the position adopted.[72]The notion that my decision in this case “means that Defendants must run every case to trial to get a finding of fundamental dishonesty before they can run a CPR 44.11 argument” is flawed.[73]Firstly, the context in which the 2nd Defendant considered running a fundamental dishonesty argument was based on surveillance evidence and during the course of this assessment I was told that Defendant insurers generally only sanction the considerable expense of surveillance where the value of a claim is pleaded in excess of £1m. On that measure alone, the percentage of personal injury cases where a compelling FD argument might be run is miniscule.[74]Secondly, in my view, the 2nd Defendant is seeking some form of equivalence between a finding of FD and CPR 44.11 misconduct, and on terms which appear to invite this court to assume that the only circumstances in which CPR 44.11 is likely to be engaged is in cases where FD arises.[75]That is plainly not the case. CPR 44.11 misconduct is argued for a variety of reasons and contrary to the 2nd Defendant’s submissions, I have never heard an argument which invited me to find misconduct based on the same case facts and underlying principles (of section 57 of the Criminal Justice and Courts Act 2015) which would otherwise lead to a trial judge making a finding of FD.[76]It is less likely a lacuna in the rules, and more a product of sensible application by others of the relevant legislation (i.e. CPR and Criminal Justice and Courts Act 2015) that neither party were able to point to authoritative guidance on the existence of any tension between these two statutory instruments.[77]I therefore reject the suggestion that section 57 of the Criminal Justice and Courts Act 2015 is juxtaposed with CPR 44.11 in a manner which is problematic to the legal profession as a whole.[78]One serves a very specific purpose, i.e. the provision to dismiss a claim in circumstances where there has been finding of fundamental dishonesty (even following a finding that a Claimant is entitled to damages). The other serves a general purpose, i.e. the provision to disallow all or part of the costs being assessed not limited only to where there has been a finding of fundamental dishonesty, but rather where the conduct (unlimited in scope or application) of a party or their legal representative is found to be unreasonable or improper.[79]Throughout this assessment the 2nd Defendant has made it clear they are not citing the conduct of the 2nd Claimant’s legal representatives. Further, the 2nd Defendant has accepted, as a matter of principle, that I cannot be asked to make a finding of fundamental dishonesty in a detailed assessment hearing.[80]However, what the 2nd Defendant has consistently failed to do is explain how a judge assessing costs can account for the principles of section 57 of the Criminal Justice and Courts Act 2015 in order to make a CPR 44.11 misconduct finding without in all but name make a finding of fundamental dishonesty.[81]And therein lies the fundamental flaw in the 2nd Defendant’s argument on this point. Parliament has put in place a procedure to be followed where a defendant considers they have a case to plead on fundamental dishonesty in a personal injury claim. That procedure is intended to be treated with the seriousness the outcomes contend for.[82]Throughout this assessment I expressed my concern that were I to allow arguments that should have been aired before the trial judge to instead be argued at a detailed assessment hearing, I would be allowing a de facto application for dismissal of a claim which in fact had not been dismissed.[83]Indeed, I observed in my previous rulings that the terms of the order bringing the quantum proceedings to a close were by agreement. Judgment was entered for the 2nd Claimant, and the 2nd Defendant fails to explain what procedural mechanism permits me to apply the principles that would lead to the dismissal of a claim (i.e. a finding of fundamental dishonesty) without actually making such a finding. The 2nd Defendant further fails to explain how the procedural tension that would cause could be resolved – i.e. judgment entered but reductions sought on the same principles that would otherwise cause the claim to have been dismissed.[84]As outlined above, it was also open to the 2nd Defendant to utilise the suite of costs order options available to them under CPR 44.2(6), whether that was by agreement or where the only remaining dispute was the order as to costs and the court was asked to make a decision.[85]It is clear the parties turned their mind to the issue of the order for costs, and in this regard I observe that the 2nd Defendant makes much of the order governing the terms of settlement agreed to by the parties, and in particular paragraph 4 of the order dated 9 January 2023 where the parties agreed to a term that:
“4. The Second Defendant do pay the Second Claimant’s reasonable costs of the action, such costs to be the subject of a Detailed Assessment on the standard basis in the absence of agreement and neither party to be precluded from raising issues in respect of conduct in the assessment of costs..”
[86]However, and as I have repeatedly said during the course of the detailed assessment, whilst the inclusion of such wording may have provided some comfort to the parties, the ability to raise conduct would have been available to the parties regardless of such a provision in an order.[87]After the event, it is now clear what the 2nd Defendant intended that provision to mean. However, and again as I have previously indicated, it would have been open to the 2nd Defendant to seek to agree a percentage based costs order which explicitly provided for a reduction to reflect conduct, a time based order which sought to limit costs after a certain date, or an issues based costs order which precluded the receiving party from recovering the costs of agreed elements of work done.[88]A detailed assessment is not the forum to rescue or attempt to change the effect of a poorly worded order, or an order on agreed terms that one party is no longer content to be bound by.[89]In practical terms I continue to fail to comprehend how I can be expected to make the sort of findings the 2nd Defendant contends for under CPR 44.11, without applying the principles that would otherwise apply to a finding of fundamental dishonesty.[90]Judgment was entered for the 2nd Claimant and the terms of an order were agreed between the parties. Now, well after that event, the 2nd Defendant is seeking to run exaggeration arguments and seek a quasi-finding of fundamental dishonesty as a route to finding CPR 44.11 misconduct with a view to securing further reductions to specified areas of the costs claimed.[91]My concern is that would place a costs judge in the shoes of the trial judge even before the assessment has started, and perhaps even before a bill is drawn (because frankly the outcomes contended for would require a bill to be drawn on a different basis to that which the order for costs allowed for). If anything, this underlines the importance of resolving disputes on terms which reflect what the parties intended.[92]If the 2nd Defendant were so sure of their position with regard to the surveillance evidence obtained, the alternative to a section 57 application for dismissal due to FD was to secure an order for costs which was either time limited, issues based or percentage based. Issues based might have accounted for the exclusion of certain categories of work, such as future losses and accommodation. “CPR 52.6(1)(b) - there is some other compelling reason for the appeal to be heard”[93]Ms McDonald makes a rather sweeping submission where she suggests an interest from FOIL, and raises the spectre of “all” cases going to trial and the courts being “blocked”.[94]Firstly, I have seen nothing from FOIL, nor even an indication they would apply to become an intervener were permission to appeal granted.[95]Secondly, when pressed for statistical data Ms McDonald was unable to tell me how often fundamental dishonesty is actually pleaded, nor how many cases generally my decision in this matter would impact if it were not successfully appealed.[96]Thirdly, none of the principles at play here are new. The ability to argue fundamental dishonesty, and the ability to argue misconduct on assessment, have been available to defendants for many years. If there was any risk of those procedural mechanisms being deployed with such frequency the courts became blocked with fundamental dishonesty applications at trial then I’m sure there would be some evidence of that having occurred.[97]I suspect that has never been the case, nor will it become the case as a result of my judgment of 4 August 2025.[98]To put it bluntly, the 2nd Defendant seeks to argue there is some other compelling reason for the appeal to be heard but based on nothing more than assertions backed by no data and no written comment from anyone other than the 2nd Defendant. If there are wider implications, and given today’s hearing took place some 4 weeks after my judgment was handed down, one would reasonably expect to see something from at least one proposed intervener by now, or otherwise data that demonstrates there is a wider argument at stake here. There isn’t. Conduct[99]Prior to drawing any final conclusion, I have reflected on whether permission to appeal ought to be given on the basis that I failed to properly consider whether the facts and circumstances of this case meet the threshold for a CPR 44.11 finding of misconduct such that the consequences, i.e. to “disallow all or part of the costs which are being assessed” could follow.[100]Preliminary points 1 to 5 of the points of dispute were addressed during the first 3 days of the detailed assessment of costs in this matter. Preliminary point 3 is marked “CONDUCT” and cites CPR 44.2(5) and CPR 44.11.[101]Whilst counsel’s skeleton argument references my judgment dated 4 August 2025, I have not seen any request for a transcript of the February 2025 hearing during which I gave an ex tempore judgment regarding the preliminary points, including as to conduct.[102]As far as I can observe and understand, permission to appeal is not sought on the basis of my February 2025 ex tempore decisions, but rather on the constrained terms expressed at paragraph [24] of counsel’s skeleton argument, which I have commented on above but for the sake of completeness I further observe as follows.[103]Firstly, not only does the 2nd Defendant exclude from consideration (and its submissions) the transcript of my ex tempore judgment as to conduct, they also neglect to acknowledge that the figure of £149,000 (net) arose from a joint settlement meeting. The settlement terms were then captured in an order made on agreed basis.[104]Secondly, it was open to the 2nd Defendant to make the provision of an explanation for acceptance a term of the agreement. They didn’t, and I do not accept they can seek to open up that agreement long after the event. Like many cases, parties are entitled to settle on a commercial basis.[105]Thirdly, the 2nd Defendant may speculate as to nefarious the reasons for acceptance. However, once that agreement was struck and signed off, a party cannot reasonably be expected to waive privilege as to their reasons for acceptance. In my view, that would set a worrying precedent and one likely to harm the prospects of negotiated, pragmatic settlement discussions.[106]I consider I have otherwise addressed the sub-paragraphs of paragraph [24] of counsel’s skeleton argument above.[107]Ultimately, the 2nd Defendant failed to convince me that the conduct of the 2nd Claimant before or during the proceedings was unreasonable or improper. I noted the arguments as raised in the points of dispute. I heard from counsel for both parties. I gave written and ex tempore judgments throughout. I concluded the threshold for misconduct had not been met.[108]In all the circumstances, I do not consider the proposed appeal would have a real prospect of success, and I do not consider there is some other compelling reason for the proposed appeal to be heard.[109]I therefore dismiss the application for permission to appeal.

Costs of today

[110]Today’s hearing was intended to address any consequential issues such as the principle of which party should be ordered to pay the costs of assessment and in what sum.[111]In the event, I am advised that both those issues have been compromised in that the 2nd Defendant has accepted liability to pay the 2nd Claimant’s costs of the assessment of the quantum only bill, and such sum has been agreed.[112]Thus in circumstances where the costs of assessment have been agreed, I record that the appearance of the 2nd Claimant’s legal representatives at today’s hearing is very much in the capacity of a (would-be) respondent. In that respect, I am guided by paragraph 8.1 of practice direction 52B to Rule 52 with regards to the costs of today.[113]I record that the I did not order or request the attendance of the 2nd Claimant (in their capacity as a respondent), and following the agreement between the parties as to the costs of assessment there were no other matters to be determined today.[114]Further, whilst I am grateful for the brief comments of counsel Mr Mason today, I do not consider it would be just, in all the circumstances, to award costs of today’s hearing to the respondent.[115]There shall be no order as to the costs of today in all the circumstances.