Deputy Master Friston warns of "Double Jeopardy" on conduct issues

Deputy Master Friston has ruled that the Court on an assessment of costs must be careful to guard against the potential for "Double Jeopardy" in relation to conduct issues. In the case of Andrews v Retro Computers Ltd [2019] EWHC B2 (Costs), whilst sitting at the SCCO, Deputy Master Friston confirmed that issues that could have been raised at trial should not be revisited during detailed assessment. 

Deputy Master Friston stated that rule 44.11(1)(b) was “not to be used in such a way as to allow a paying party to adjust or negate his or her liability for costs for reasons that were or could have been addressed at the time that the costs order was made”.

He added: “Put otherwise, a costs judge is bound by terms of the costs order as properly interpreted, and there is nothing in rule 44.11(1)(b) that allows a costs judge to revisit the formulation of that order.”

Deputy Master Friston referred to the principles laid down by Lord Justice Dyson in Lahey v Pirelli Tyres Ltd [2007] EWCA Civ 91– that “the costs judge has no power to vary the costs order that is deemed to have been made” applied where the alleged misconduct took place during the claim itself, as opposed to during the assessment.

“A costs judge will, of course, consider disallowing costs that have been incurred as a result of any unreasonable or improper behaviour, but even this must be done in such a way as to avoid double jeopardy.

“In my view, a costs judge would (in the absence of some special order, such an order expressly reserving certain issues to the assessment) be overstepping the mark if he or she got drawn into making wholesale reductions that would properly be the province of the judge who made the order for costs.”

“For all these reasons, I find that even if I were to find that there had been unreasonable or improper conduct, the court’s ability to impose the types of sanction sought by the defendants is limited.”

The Deputy Master still considered each ground that had been raised by the paying party and dismissed each ground. 

Comment: An eminently sensible decision in my view. There is clearly no appetite for the Masters' on assessment at the SCCO to become involved in making decisions on conduct, and neither should there be. The trial judge is clearly best placed to consider such issues and any party seeking to make points on conduct should do so at the point that the Court is considering making an order for costs.