William Thomas Stockler & Anor v The Corporation of the Hall of The Arts and Sciences

DEPUTY COSTS JUDGE JOSEPH Deputy Costs Judge Joseph: Introduction

1. Twists and turns are sometimes part and parcel of litigation. This case is perhaps a good example of that. This judgment deals with various outstanding issues which fall to be determined following the conclusion of the line-by-line assessment of the defendant’s costs. In order properly to understand this judgment, reference should be made to my first judgment dated 5 September 2025, which is reported at [2025] EWHC 2262 (SCCO) (“my first judgment”). The defendant 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.

2. In my first judgment, I dealt with the claimants’ submission, following the line-by-line assessment, that the Bill should be further reduced on the ground of proportionality. I concluded that the amount of the costs following the line-by-line assessment were both reasonable and proportionate and that the defendant’s costs should not be further reduced.

3. Before dealing with the outstanding issues, and in order to understand how they arise, it is necessary to set out some more of the underlying events.

4. The detailed assessment was listed to be heard by me, initially over two days, on 23 and 24 June 2025. At the start of the hearing on 23 June, I informed the parties that I used to sing in the City of Birmingham Symphony Orchestra Chorus (the amateur choir which sings in concerts with the professional City of Birmingham Symphony Orchestra) and that I had sung in a small number of concerts which had taken place in the Hall. Both Counsel then acting confirmed my initial view, which I had expressed to them, that this was not a basis on which I ought to recuse myself. The hearing continued.

5. At the start of the second day of the hearing, Counsel then acting for the claimants (Mr Daniel Laking) informed me that an issue had arisen overnight. He was now instructed to make an application that I should recuse myself on the ground that, during the course of giving judgments on various issues which had been determined on the first day of the hearing, I had expressed positive and complimentary sentiments about the Hall and performing in it whilst I was a member of the CBSO Chorus, and that I had allowed my judgment to be inappropriately influenced as a result. He did not explain how. He submitted that I should now recuse myself and direct a new hearing before a different Costs Judge.

6. In the course of Mr Laking’s application, I elaborated a little further as to the extent of my participation in performances in the Hall. I explained that I had been a member of the CBSO Chorus between 1990 and 2001 and during that time had performed in approximately 250 concerts, the vast majority of which had taken place in Birmingham’s Symphony Hall and with the CBSO. I thought that about 7 – 10 of those 250 concerts had taken place in the Hall with various orchestras, including the CBSO, the BBC Symphony Orchestra and the Vienna Philharmonic Orchestra. One of the concerts concerned was the first night of the Promenade season in 1997. I had attended concerts in the Hall after I left the CBSO Chorus including some quite recently.

7. Having heard that further elaboration and having taken instructions from Mr William Stockler, who was present in the hearing, Mr Laking told me that he was instructed to continue with the application. After hearing from Mr Hughes, Counsel for the defendant, who opposed the application, I dismissed the application to recuse and declared it to be totally without merit. I deal with this a little more later in this judgment.

8. The detailed assessment continued on 24 June. I dismissed a number of Points of Dispute pursuant to Ainsworth -v- Stewarts Law LLP on the ground that they did not provide sufficient detail to enable the defendant properly to understand them and/or to respond to them by way of Replies. The detailed assessment was not completed by the end of 24 June. I made various directions including that the parties should by 4pm on 1 July file dates of unavailability for the period to 31 December, for a two day hearing. The parties duly filed their dates of unavailability. The matter was then relisted for 28 and 29 August. [2020] EWCA Civ 178

9. After the court had sent out the new notice of hearing, the claimants decided that they wished to instruct new legal representation in the form of a costs lawyer for the hearing. He was unavailable on 28 August but would have been available on 29 August. The claimants informally asked me to relist the hearing. The defendant objected and I directed that a formal application on notice should be made if either party wished to adjourn or relist the hearing which had been fixed for 28 and 29 August.

10. Neither party made a formal application to adjourn or to relist. Mr William Stockler, who confirmed to me on 28 August that he is a solicitor with a current practising certificate, represented himself and his son at the hearing on 28 and 29 August. I refused his request on 28 August to adjourn until the next day so that his costs lawyer could appear on behalf of the claimants.

11. After the hearing on 23 and 24 June, the claimants amended their Points of Dispute. The amendments encompassed significant changes to Points of Dispute which I had already ruled should be dismissed pursuant to Ainsworth , as well as amendments to Points of Dispute which had not been considered fully, or at all, on 23 and/or 24 June.

12. The defendant indicated, after receipt of the amended Points of Dispute and within 21 days of receipt of them, that it would be inviting the court at the hearing on 28 August to disallow all of the amendments to the Points of Dispute. Mr Hughes’ position was that to allow the amendments at that late stage would be unfair to the defendant and that it was, in any event, far too late in the detailed assessment proceedings for such a course to take place.

13. On 28 August, I decided, pursuant to paragraph 13(10) of the practice direction to CPR Part 47, that all of the amendments to the Points of Dispute should be disallowed. The detailed assessment continued. The line-by-line assessment was completed on 29 August. In the usual way and practice in the SCCO, I sent the parties out to agree the calculation of the Bill. Following a short adjournment, Mr Hughes informed me that the Bill now came to £120,513.88 and he provided me with a breakdown showing the calculations of each of the Parts of the Bill. It is important to remember that Part 1 of the Bill was assessed on the standard basis and Part 2 was assessed on the indemnity basis.

14. Mr Stockler told me that he assumed that the defendant’s figure was correct. He did not put forward any alternative overall figure, nor any potential alternative breakdown. Mr Stockler had already indicated that he wished to submit that the Bill should be further reduced on the ground of proportionality. Any such argument could only be made in relation Part 1 of the Bill because proportionality has no part to play in an indemnity assessment. It seemed to me at the time, and does now, that a paying party who wished to argue, after the line by line assessment, that the Bill should be further reduced on the ground of proportionality, necessarily needed to have a confirmed figure as a starting point which he then submits remains disproportionate.

15. The next task in the detailed assessment was to deal with the submission that the costs should be further reduced on the ground of proportionality because the detailed assessment had to be completed. I heard submissions on that from both parties. Mr Stockler was content to make his submissions on the basis of the defendant’s figures, including the breakdown which the defendant had given to the court. In the order which was drawn up after 29 August, the figure of £120,513.88 was recorded as the overall calculation of the Bill together with the breakdown which the defendant had provided. A detailed breakdown of the figures is set out in paragraphs 19 and 20 of my first judgment.

16. I reserved judgment on the issue of a further reduction and that later resulted in my first judgment. As there were still matters outstanding, I directed that there should be a further hearing on a date to be fixed, for two days, to deal with those outstanding matters and to deal with the separate but connected matter of the detailed assessment of the defendant’s costs of the claimants’ appeal against the decision of DJ Mauger. I had previously directed pursuant to CPR Part 47.14 that the appeal costs should be taken out of the provisional assessment process. I expressed the hope that the new hearing could be undertaken before the end of this year given how long this matter had been going on.

17. In the middle of September 2025, the court listed the further hearing, fixed by reference to the availability of Mr Hughes, Mr Stockler and the representation which the claimants then intended to instruct, and the court, for 28 and 29 January 2026. I considered that to be an unsatisfactory delay (although I make it clear I attach no criticism to anyone for the fact that the hearing could not be listed before the end of January 2026). I took the view that, pursuant to the court’s powers of case management and the overriding objective (including the requirement to ensure that cases are dealt with fairly and expeditiously), I should explore with the parties the possibility of dealing with certain matters in a different way to an oral hearing, and somewhat before 28 January 2026. The outstanding issues

18. On 16 September, having previously invited and received email submissions from the parties as to whether certain matters could be dealt with by written submissions, I made a further directions order which required the parties to address the outstanding issues by written submissions. The issues were as follows: i) the amount of any interest payable by the claimants; ii) whether some or all of the defendant’s costs of the detailed assessment should be paid by the claimants on the indemnity basis; iii) the quantum of costs of the detailed assessment of the Main Bill; iv) whether the claimants should be granted permission to appeal.

19. I also ordered the defendant to file by 10 October an electronic bundle of documents pertinent to those issues. The parties complied with those directions. I record that Mr Stockler initially stated that he considered my original order that these matters should be dealt with at the adjourned hearing should stand. It was principally for that reason that I directed that, on receipt of the bundle, I would consider the matter with a view to making decisions on the issues in dispute and that, if I considered that I was unable to reach final decisions on any of the issues concerned, they would be dealt with at the hearing on 28 January 2026. The defendant’s position was that determination after written submissions was appropriate.

20. On 13 October, Mr Stockler wrote to the court concerning the calculation of the Bill. He repeated his view that he had been “ unable to be legally represented at the adjourned hearing on 28 and 29 August 2025 ”. He informed me of correspondence which had passed between the parties in which he had asked the defendant for a calculation of the figures which had been given to the court on 29 August and which the defendant had declined to provide. He asked me to make an order requiring the defendant to provide that information.

21. On 27 October, I informed the parties that it was not appropriate for the court to become involved in a potential dispute between them as to the terms of a previous order unless and until that issue was placed before the court in the form of a formal application. I also expressed the view that in order for me properly to consider the outstanding issues, it would be necessary to take into account the issues which had arisen in the latest correspondence. However, as the defendant had indicated in that correspondence that it was not prepared to provide the claimants with any calculations, I directed as follows: “Any application which either party wishes to make as a result of correspondence which has passed between them since the hearing on 29 August 2025, and/or the hand down of the judgment on 5 September 2025, must be made by 4pm on 3 November 2025 . In the event that no further application is made by that date and time, the court will proceed to determine the further issues identified in the order of 16 September 2025 based on the written submissions and draft orders which have been served in compliance with that order."

22. In making this direction I had in mind the point made in paragraph 14 above namely that in order for me fairly to decide the consequential issues, I would also need to have a confirmed figure for the Bill. If the figure given to the court at the hearing on 29 August needed to be altered, that was a matter which needed to be dealt with first. The claimants’ application

23. The claimants made an application on 27 October. The application requested a three hour in person hearing. The substance of the application was that the defendant had now supplied a calculation of the Bill and that this new calculation showed that the Bill had come to £113,244.58. The defendant’s representation to the court on 29 August that the Bill had come to £120,513.88 was false. The defendant had refused to agree to change that figure. It should now be reviewed, and the defendant’s conduct should be penalised by court refusing to award it the costs of the assessment. The defendant should be ordered to pay the costs of the application of 27 October on the indemnity basis. The claimants took the position that the defendant’s conduct had been improper.

24. The defendant responded to the application. Its primary position was that the claimants were not entitled now to purport to dispute the calculation of the Bill which had been provided to the court on 29 August and to which they had not objected at the time. The defendant explained that once the applicable hourly rates for both the standard basis and indemnity basis costs were inputted into the excel spreadsheet, the figures for the Bill were as had been represented to the court on 29 August. The defendant drew to the court’s attention correspondence passing between the parties in which this was explained and in particular an email from Mr Stockler which had asserted, “ I am unaware of any difference in rates between each part of the bill of costs ” (Mr Stockler’s emphasis, not mine). The defendant’s position was that the claimants’ application of 27 October should be dismissed.

25. Further correspondence and representations to the court then ensued. This culminated in me directing on 30 October that there should be one final response from the defendant, after which I would decide whether it was appropriate for the claimants’ application to be dealt with on paper or whether there needed to be an oral hearing. It is neither necessary nor appropriate that all the contentions of both sides should be set out here. I have read them all and I record some further relevant points.

26. The defendant’s final response attached two copies of the annotated Bill which had been reduced in accordance with the various rulings made in July and August. One of them contained the hourly rates which had been allowed for the costs assessed on the standard basis and the other contained the rates allowed for the costs assessed on the indemnity basis. Other than that, the two copies were identical. The defendant pointed out that for Part 2 of the Bill £385 per hour had been allowed for grade A fee earners but the hourly rate for one of those fee earners had been claimed in the Bill at only £378 per hour. When that difference was applied, the costs of Part 2 of the Bill fell to be reduced from £52,055.00 to £51,763.10, a difference of £291.90, in favour of the claimants. The defendant said that this discrepancy had not been noticed at the hearing. It did not form part of the application now made by the claimants, such that the basis of their application remained incorrect.

27. The defendant concluded its submission by inviting the court to amend the Order of 29 August to reflect the revised figure of £51,763.10 for Part 2 of the Bill and the overall revised figure for the Bill, which was now £120,221.98. How should the court deal with the claimants’ application of 27 October 2025?

28. The court has a case management discretion to exercise in determining how any application should be dealt with. The question on the application notice is, “How do you want to have this application dealt with?” There are then a series of options. The fact that the applicant might indicate that he considers an in person hearing is required, and the fact that a respondent might take a different view, are factors which in the exercise of case management discretion the court should take into account, and I do so.

29. The timing of the application is relevant and significant. It was made after the court had made detailed directions, themselves made only after the parties had been given the opportunity to make representations to the court as to how the consequential issues should be dealt with, and after the parties had complied with those directions. It was made two months after the hearing on 29 August. My intention had been to consider the matter as soon as possible after the bundle had been lodged by the defendant and I had started preparing this judgment shortly after that. That exercise had to be put on hold and significantly revisited as a result of the claimants’ application.

30. This detailed assessment has already taken up 4 days of court time, which is far longer than ordinarily would have been allowed for a bill of this nature and of this size. Currently, the matter is listed for another two days (to include another bill relating to an appeal). I have to have regard, of course, to the requirement to do justice between the parties and to ensure that they each have a fair hearing. But I also have to have regard to the fact that court resources must be used appropriately and that there are other court users who are entitled to call upon those resources.

31. I am satisfied, having considered all the correspondence which has been sent to the court since 13 October, and for the reasons set out below, that the parties have had a proper and adequate opportunity to put before the court their submissions and evidence in support of, or against, the claimants’ application. I am also satisfied that the application can be fairly determined without an oral hearing. In reaching that conclusion I have applied all of the matters set out in the overriding objective.

32. I do not accept the contention by Mr Stockler that at any time in this matter the claimants have been unable to be legally represented. They have, when it has suited them, and as is their right, chosen to instruct and be represented by Counsel. They have, again, as it has suited them, and as is their right, elected not to continue to instruct Counsel whom they have previously instructed. In Mr Stockler’s correspondence with the court relating to and prior to the application of 27 October he explained that he had instructed new Counsel. He told me on 28 August, and I accept this, that he is a solicitor with a current practising certificate. He represented both himself and his son at that hearing. I do not consider that the claimants might be, or at any time have been, at any disadvantage in terms of their legal representation. In particular, if a party submits dates to avoid, and the court lists a hearing by reference to those dates, that party does not have a strong case for an adjournment or relisting if they decide not to instruct the advocate whose availability was taken into account, and their new advocate is unavailable for the hearing.

33. Those comments pertain particularly to the hearing on 28 and 29 August and specifically to the point in the hearing at which the parties were sent out to agree the calculation of the Bill. It was just as much Mr Stockler’s responsibility, as it was that of the defendant, to agree a calculation of the Bill following the line by line assessment.

34. The defendant put forward figures, but Mr Stockler did not. Furthermore, Mr Stockler did not make any attempt to explain why and on what basis he did not agree any of the figures put forward by the defendant. Simply saying, as he did, that he “assumed” the defendant’s figures were correct, not making any attempt to put forward alternatives and reasoning for them, and then proceeding with and dealing with the rest of the detailed assessment, constitutes acceptance of the defendant’s figures for the Bill.

35. I also do not understand how Mr Stockler could have been in any position to make adequate submissions as to a further reduction on the ground of proportionality if he did not have a confirmed figure for the calculation of the Bill following the line by line assessment. Yet Mr Stockler was quite content to make his submissions on that issue having “assumed” that the defendant’s figures were correct. This was the detailed assessment of the Bill. A potential further reduction for proportionality had to be dealt with even if that resulted in a reserved judgment due to lack of time on 29 August.

36. The position then is that on 29 August the claimants agreed both the overall figure for the Bill which was given to the court by the defendant on that date and, of necessity, the breakdown of it. They had had a proper opportunity to challenge the defendant’s figures but had elected not to do so. The question is whether they are entitled to make an application now to substitute some different figure or figures.

37. I do not consider that they are so entitled. Both the court and the defendant were entitled to and did proceed at the conclusion of the line by line assessment on the footing that the figures were agreed. The evidence on which the claimants’ application is made consists not of their own calculations, but of criticisms of the calculations given to them by the defendant some time after the hearing. But for one point to which I shall come shortly, those criticisms do not bear scrutiny. Mr Stockler has asserted that he was unaware of any difference in the rates which were allowed for costs assessed on the standard basis and those on the indemnity basis. In paragraph 13 of my first judgment, I recorded that, 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. In addition, the rates allowed for Part 1 were not the same as those allowed for Part 2. That means that there were differences in the rates allowed for Parts 1 and 2 of the Bill.

38. The defendant has explained, by means of two excel spreadsheets, that but for one error, the calculation of the bill which was given to the court on 29 August was correct. As to that error, I am satisfied that it was an inadvertent and unintentional error on the part of the defendant and that there is no basis for drawing the adverse conclusions about the defendant’s conduct which Mr Stockler invites the court to draw. It was an error which, if on 29 August Mr Stockler had engaged properly in the process which he, as the solicitor for the claimants, ought to have undertaken, would have been identified and no doubt agreed between the parties.

39. The result must be that the claimants’ application falls to be dismissed. However, that is not the end of the matter. The defendant, having identified an error in the figures given to the court on 29 August, has itself now asked the court to change the figure for Part 2 of the Bill to reflect the correct calculation, and to change the overall total. I have concluded that it is right that this change should be made but not for the reasons put forward by the claimants in their application.

40. Allowing the current position to stand would result in a breach of the indemnity principle because more will have been allowed than was originally claimed in Part 2 of the Bill. Given my conclusion that an unintentional error has occurred, that change is best made by use of the slip rule or if not by means of CPR Part 3.1(7). That rule gives the court the power to vary or revoke an order. The leading case on the operation of the rule is Tibbles -v- SIG Plc . Considerations of finality and the need to avoid the undermining the concept of appeal pushes towards a principled curtailment of an otherwise apparently open discretion. One of the circumstances in which the discretion may be appropriately exercised is where the facts on which the original decision was made were (innocently or otherwise) misstated. See, in particular, the judgment of Rix LJ. I consider the discretion conferred by CPR Part 3.1(7) ought to be exercised in this case. As I have said, the error was innocently made. [2012] EWCA Civ 518

41. The calculation of the Bill will therefore be varied such that it is now as follows: Part 1 £55,581.38 Part 2 £51,763.10 Part 3 £12,877.50 Total: £120,221.98 . How should the court now deal with the outstanding issues?

42. Having considered the bundle which was lodged by the defendant on 10 October, I am satisfied that the parties have had a fair opportunity to deal with the outstanding issues. I am further satisfied that it would be fair to the parties and in accordance with the overriding objective (including the requirement to ensure that court time is used appropriately) for me now to determine those issues. There does not need to be another in person hearing to do so. I observe that on 24 September, Mr Stockler prepared and served written submissions on behalf of the claimants, running to just under 9 pages, signed by himself (which, incidentally, did not mention any dissatisfaction with the calculation of the Bill).

43. I now therefore proceed to determine the outstanding issues. I have considered all of the documents in the bundle lodged by the defendant. I have not set out in this judgment each and every contention or argument raised by both parties but I have taken them all into account. I have, of course, taken into account the variation to the calculation of the Bill, as set out and explained above. The applicable rules

44. The following extracts from the CPR are relevant: Part 47.20 – Liability for costs of detailed assessment proceedings (1) The receiving party is entitled to the costs of the detailed assessment proceedings except where – a. the provisions of any Act, of any of these Rules or any relevant practice direction provide otherwise; or b. the court makes some other order in relation to all or part of the costs of the detailed assessment proceedings. (2) … (3) In deciding whether to make some other order, the court must have regard to all the circumstances, including – a. the conduct of all the parties; b. the amount, if any, by which the bill of costs has been reduced; and c. whether it was reasonable for a party to claim the costs of a particular item or to dispute that item. (4) The provisions of Part 36 apply to the costs of detailed assessment proceedings with the following modifications - a. “ claimant ” refers to “receiving party” and “ defendant ” refers to “paying party”; b. “ trial ” refers to “detailed assessment hearing”; c. a detailed assessment hearing is “in progress” from the time when it starts until the bill of costs has been assessed or agreed;……. (5) The court will usually summarily assess the costs of detailed assessment proceedings at the conclusion of those proceedings….” 44.2 – Court’s discretion as to costs (1) The court has a discretion as to – a. whether costs are payable by one party to another; b. the amount of those costs; c. when they are to be paid. (2) If the court decides to make an order about costs – a. the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but b. the court may make a different order. (3) … (4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including – a. the conduct of all the parties; b. whether a party has succeeded on part of its case, even if that party has not been wholly successful; and c. any admissible offer to settle which is drawn to the court’s attention, and which is not an offer to which the costs consequences under Part 36 apply. (5) The conduct of the parties includes – a. conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction – Pre-Action Conduct or any relevant pre-action protocol; b. whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; c. the manner in which a party has pursued or defended its case or a particular allegation or issue; d. whether a claimant who has succeeded in its claim, in whole or in part, exaggerated its claim; and e. whether a party failed to comply with an order for alternative dispute resolution, or unreasonably failed to engage in alternative dispute resolution….. Part 36.17 – Costs consequences following judgment (1) Subject to rule 36.24, this rule applies where upon judgment being entered – a. … b. judgment against the defendant is at least as advantageous to the claimant as the proposals contained in a claimant’s Part 36 offer. (2) For the purposes of paragraph (1), in relation to any money claim or money element of a claim, “ more advantageous ” means better in money terms by any amount, however small, and “ at least as advantageous ” shall be construed accordingly. (3) … (4) Subject to paragraph (7), where paragraph 1(b) applies, the court must, unless it considers it unjust to do so, order that the claimant is entitled to – a. interest on the whole or part of any sum of money (excluding interest) awarded, at a rate not exceeding 10% above base rate for some or all of the period starting with the date on which the relevant period expired; b. costs (including any recoverable pre-action costs) on the indemnity basis from the date on which the relevant period expired; c. interest on those costs at a rate not exceeding 10% above base rate; and d. provided the case has been decided and there has not been a previous order under this paragraph, an additional amount, which shall not exceed £75,000, calculated by applying the prescribed percentage set out below to an amount which is – (i) the sum awarded to the claimant by the court; (ii) …. Amount awarded by the court Prescribed percentage Up to £500,000 10% of the amount awarded (5) In considering whether it would be unjust to make the orders referred to in paragraphs (3) and (4), the court must take into account all the circumstances of the case including – a. the terms of any Part 36 offer; b. the stage in the proceedings when any Part 36 offer was made, including in particular how long before the trial started the offer was made; c. the information available to the parties at the time when the Part 36 offer was made; d. the conduct of the parties with regard to the giving or refusal to give information for the purpose of enabling the offer to be made or evaluated; and e. whether the offer was a genuine attempt to settle the proceedings….. Liability for the costs of the detailed assessment and any Part 36 consequences The defendant’s contentions and submissions

45. The defendant contends that the claimants should pay all the costs of detailed assessment on the indemnity basis. They found that contention on two bases. First, on the ground of unreasonable behaviour and second, pursuant to CPR Parts 36.17 and 47.20. It is convenient to deal with the argument concerning CPR Parts 36.17 and 47.20 first.

46. On 29 October 2024, the defendant made a Part 36 offer to accept the sum of £115,000. That sum was expressed to include interest. The relevant period expired on 19 November 2024 and, as it was not accepted, the detailed assessment continued. The outcome of the detailed assessment was that the Bill was finally assessed in the sum of £120,221.98 (as now amended) and before interest is added. The defendant’s position is that the usual consequences which apply by virtue of CPR Part 36.17, as modified by CPR Part 47.20(4), should be applied.

47. The detailed assessment has produced an outcome which is at least as advantageous to the defendant than the proposals contained in its Part 36 offer, which means that the court must, unless it considers it unjust to do so, order that the defendant is entitled to the various sums set out in CPR Part 36.17(4).

48. The defendant says that there is no basis on which it could be considered to be unjust to order those consequences and reminds me of the factors to be taken into account in this respect as set out in CPR Part 37.17(5). The Part 36 offer was put forward four days after service of Replies to the (original) Points of Dispute. The parties were in a proper position to evaluate the offer, and it was a genuine offer to settle the claim for costs. As a result of the failure to accept the Part 36 offer, the defendant invites me to order the claimants to pay costs on the standard basis up to 19 November 2024 and on the indemnity basis thereafter.

49. In relation to interest on the assessed costs, the defendant says that I should order that interest be paid at the Judgments Act rate of 8% per annum from the date on which the order for the payment of costs was made until 19 November 2024, and at 14% per annum thereafter (that being 10% above the base rate). The defendant seeks interest at 14% per annum on the costs of the detailed assessment from the date of a final order in this matter.

50. The defendant seeks the additional sum set out in CPR Part 36.17(4)(d), which would now be the sum of £12,022.20.

51. As to unreasonable behaviour, the defendant submits that indemnity costs should be ordered against the claimants for the whole of the detailed assessment. It reminds me of the factors set out in CPR Part 44.2(4) and (5).

52. The matters which the defendant says warrant an indemnity costs order on the ground of unreasonable behaviour include the following: i) some of the Points of Dispute were unreasonably made and unreasonably pursued to a hearing. For example, a challenge based on schedules for summary assessment, which had been served during the course of the underlying action, and which had claimed sums which it was said were different to those claimed in the Bill. Another example was the assertion that a fixed costs regime which came into force on 1 October 2023, some time after the commencement of the proceedings in this matter, nevertheless applied, in essence, retrospectively. Both of these challenges failed; ii) it was unreasonable for the claimants to contend that a composite hourly rate should be allowed for all of the fee earners who worked on the matter; iii) some five of the Points of Dispute were pursued to the detailed assessment, and dismissed, notwithstanding that the Replies had asserted that they were inadequate on Ainsworth principles, and subsequently no attempt had been made prior to the hearing on 23 June to correct that position; iv) the Points of Dispute did not identify appropriate filters in the electronic Bill which could have been used to understand and isolate the items under challenge; v) there was no attempt in the Points of Dispute to distinguish and/or separate from each other those items which fell to be assessed on the standard basis and those which fell to be assessed on the indemnity basis; vi) on 6 August 2024, the defendant had made a Calderbank offer (open for acceptance until 27 August 2024) to accept £129,793.90, inclusive of interest, and had provided a detailed breakdown as to how that sum was calculated. No response was provided to that correspondence which it is submitted amounted to an unreasonable failure to engage in alternative dispute resolution; vii) by an order dated 10 July, I had encouraged the parties to agree outstanding issues, wherever possible. The defendant says that this amounted to an order to engage in ADR. The defendant subsequently sent correspondence which made proposals which was ignored. The defendant says that this conduct amounted to a breach of the order; viii) the only offer made by the claimants was to pay £40,000 on 4 October 2024. That offer was plainly inadequate given the outcome of the detailed assessment and was not a genuine offer to settle.

53. I record at this stage that the costs schedule served by the defendant in respect of its costs of the detailed assessment only contains costs incurred after 27 August 2024, that being after the expiry of the 21 day period for acceptance of the Calderbank offer dated 6 August 2024. The claimants’ contentions and submissions

54. Mr Stockler first takes issue with the form of the Part 36 offer dated 29 October 2024. The substance of his case is that a mistake was made in completing the standard form N242A which was used by the defendant’s solicitors to make the Part 36 offer. He draws attention to CPR Part 47.20(4) which applies the provisions of CPR Part 36 to detailed assessments, and which contains and applies necessary modifications to CPR Part 36. In CPR Part 36, for the purposes of detailed assessments, “claimant” refers to the receiving party and “defendant” refers to the paying party. The defendant is therefore the receiving party and the offer made was not a “claimant’s offer”. It is, as is submitted by Mr Stockler, an invalid offer and, as a result, it cannot attract the consequences set out in CPR Part 36.17.

55. In the alternative, Mr Stockler submits that it would be unjust to apply the provisions of CPR Part 36.17 because of the factors which caused the claimants to fail to beat the Part 36 offer. They were first, my ruling that certain Points of Dispute fell to be dismissed pursuant to Ainsworth, and second, my ruling that all of the amendments to the Points of Dispute which had been made between the hearing on 23 and 24 June and 28 and 29 August should be disallowed. Mr Stockler says that the claimants “ misinterpreted ” the law and having done so, were prohibited from remedying the position by their proposed amendments.

56. As to the allegations of unreasonable behaviour, Mr Stockler reminds me of paragraph 19 of the judgment of Woolf LJ (as he then was) in Excelsior Commercial and Industrial Holdings Ltd -v- Salisbury Hammer Aspden and Johnson (a firm) in which it was said that there must be some conduct which “ [2002] EWCA Civ 879 takes the case out of the norm ” in order for an indemnity costs order to be made. Mr Stockler says that none of the matters relied on by the defendant could amount to such conduct and that costs should be ordered on the standard basis. The defendant’s response

57. The defendant submits that if there was an error in the form of the Part 36 offer it made no material difference. It refers me to the judgment of Davies LJ in F&C Alternative Investments (Holdings) Ltd -v- Barthelemy (No 3) and submits that it falls into the class of “ [2012] EWCA Civ 843 de minimis errors or obvious slips which mislead no-one ”. It also says that the claimants could not have been in any doubt as to the fact that a Part 36 offer was being made nor as to the consequences which would occur if it was beaten by the defendant at the detailed assessment hearing.

58. The defendant submits that the reasons advanced by the claimants for their failure to beat the Part 36 offer do not bear scrutiny. It reminds me of CPR Part 36.17(5) which does not contain as a factor to be taken into account, misinterpretation of the law by a party or its legal advisers.

59. The Defendant also refers me to O’Neill -v- AVIC International Corporation (UK) Ltd in which Freeman J held that it was appropriate to aggregate factors together when considering whether to order indemnity costs. [2019] EWHC 374 (QB) Discussion and conclusions as to liability for the costs of the detailed assessment and any Part 36 consequences

60. I am quite satisfied that the Part 36 offer dated 29 October 2024 by the defendant to accept £115,000 inclusive of interest was a valid Part 36 offer. Any deficiencies in it were minor and inconsequential. They could not possibly have caused any doubt in the mind of a reasonable reader as to what the Part 36 offer was intended to be, nor as to the consequences in the event that it was not beaten at the detailed assessment.

61. I do not consider that any of the grounds advanced by Mr Stockler to suggest that it might be unjust to order that the consequences set out in CPR Part 36.17 has any merit. The burden of proof is on the claimants in that respect and they have not discharged it. In fact, the case against them is overwhelming. If the quality of the Points of Dispute and/or the rulings on them were factors which then made it unjust to order the Part 36.17 consequences it would be unjust in almost every detailed assessment to order them. That cannot have been the intention of the Rules Committee, and it is not the proper construction of CPR Part 36.17.

62. The terms of the offer were clear. It was made shortly after the Replies were served and a considerable period of time before the start of the detailed assessment hearing. I accept the contention by the defendant that the claimants had sufficient information to enable them to evaluate the offer and to decide within its relevant period whether to accept it (or indeed at some point after the expiry of the relevant period and before the start of the detailed assessment hearing). It is not contended that information was withheld by the defendant and I am satisfied that it was a genuine offer to settle given the outcome of the detailed assessment. For those reasons the consequences set out in CPR Part 36.17 will be applied.

63. That means that, by the application of CPR Part 36.17, costs will be paid on the standard basis up to 19 November 2024 and on the indemnity basis thereafter.

64. Mr Stockler’s only submission in relation to interest was that as the Part 36 offer was not a valid Part 36 offer, interest should be allowed at the Judgments Act rate of 8% per annum. He made no alternative submission as to the rate which should be allowed in the event that his argument was rejected. I have rejected his argument concerning the validity of the Part 36 offer.

65. I bear in mind that the Part 36 offer was made a considerable period of time before the first hearing and after the Replies were served thereby giving the claimants a proper opportunity to consider it. I consider that it is appropriate to award interest on the assessed costs (£120,221.98) at 8% per annum for the period between 1 July 2024 (the date of the order for the payment of costs) until 18 November 2024 and at 14% per annum from 19 November 2024 until the date of the final order in this matter. There will also be an order for an additional payment in the sum of £12,022.20. As to interest on costs, the defendant invites an order that interest should run at 14% per annum on the costs of the detailed assessment from the date of the final order in this matter until payment and I order to that effect.

66. Given the above findings and rulings, the scope of any further indemnity costs order is limited to the period between 28 August and 19 November 2024. This is because as I have observed above, the costs now claimed by the defendant in respect of the costs of the detailed assessment start from 28 August 2024.

67. Notwithstanding my decision about the Part 36 offer and the consequences which flow from it, I have considered the contention by the defendant that the whole of the detailed assessment costs should be paid on the indemnity basis on the ground of unreasonable behaviour. In doing so, I disregard for these purposes the ruling on the effect of the Part 36 offer. I have considered the matter afresh and in the round.

68. It is frequently the case in detailed assessments that issues are raised in Points of Dispute which are either not pursued at the hearing, or which are dismissed in short order at it. For example, it is often the case that a challenge is raised in the Points of Dispute on the basis that there might have been a breach of the indemnity principle. The response to that challenge in the Replies refers the court to the signature on the Bill by an officer of the court and to Bailey -v- IBC Vehicles Ltd [1998] 3 All E.R 570 . At the hearing, the advocate for the paying party then confirms immediately that the point is not being pursued and that is the end of the issue. If he does not take that position, the court looks at the matter and deals with it quickly, one way or the other. That happened in this case. Point 1 of the Points of Dispute was a challenge based on the indemnity principle which was dismissed swiftly because it had no proper basis.

69. The challenge in the Points of Dispute, which amounted to a comparison between the costs claimed in various schedules of costs for summary assessment and the claim in the Bill, failed. In my judgment, the challenge was misconceived and not properly thought through, and it might have been unreasonable. However, I do not consider that the challenge was so unreasonable as to take the case out of the norm. Points similar to this are sometimes taken in Points of Dispute.

70. The challenge in relation to the applicability of a fixed costs regime which did not apply, and could never have applied to this case did, in my view, amount to unreasonable behaviour which took the case out of the norm. At the time, I was mystified as to how it could have been correct and I remain of that view.

71. I do not consider that there was anything unreasonable in the contention that the court should apply a composite hourly rate. Whilst such decisions are perhaps not common, there was nothing inherently inappropriate in that approach, even though it also failed.

72. Whilst Ainsworth has now been in place for some considerable time it is not uncommon for challenges to be made in Points of Dispute which do not provide sufficient information to enable the receiving party properly to respond to them. I am not therefore persuaded that the fact that a significant number of Points of Dispute were drafted such that they were then dismissed on Ainsworth grounds was conduct in itself which was so unreasonable as to take the case out of the norm. It would have been possible, and appropriate, for the claimants to have taken rather more notice of the Replies and the further correspondence from the defendant on this issue but the fact that they did not do so does not make their conduct so unreasonable as to justify an indemnity order.

73. Similarly, whilst I have some sympathy with the defendant’s point concerning the absence of filter information which would have enabled the electronic Bill to be navigated better, there is nothing in the practice direction which requires such information to be given. Sometimes the information is provided in the Points of Dispute and sometimes it is only provided at the detailed assessment hearing. Whilst some would consider the provision of the filter information to be best practice, I do not consider that the absence of it could amount to unreasonable conduct which justifies an indemnity order.

74. I found the failure to distinguish and separate from each other in the Points of Dispute those items which were to be assessed on the standard basis from those to be assessed on the indemnity basis, particularly unhelpful and confusing. It is not reasonable for a paying party to expect the court at the detailed assessment hearing to embark on something of a detective exercise. As I noted in my first judgment, this distinction is extremely important because of the difference in the criteria which are applied when assessing costs on the standard or on the indemnity basis.

75. This is illustrated by the decision which I made as to the grade of fee earner which was to be allowed for the day to day conduct of the matter. For the standard basis costs, I allowed a grade B fee earner as being reasonable and proportionate and I very much bore in mind that any doubt in that respect had to be resolved in favour of the claimants. For the indemnity costs, I allowed a grade A fee earner. This was because proportionality has no part to play in any indemnity assessment and the court is only concerned to disallow costs which it considers were unreasonably incurred and/or which are unreasonable in amount. Any doubt in that respect had to be resolved in favour of the defendant.

76. I take the view that the failure in the Points of Dispute to distinguish between items claimed on the standard basis and those claimed on the indemnity basis was unreasonable and unhelpful, but I do not consider it to have been so unreasonable as to justify an indemnity order.

77. Whilst I think it was unfortunate that no meaningful response was made to the defendant’s Calderbank offer, the fact remains that it was not beaten at the detailed assessment. When this issue is considered with the claimants’ offer to pay £40,000 and the outcome of the detailed assessment it brings into sharp focus the difference in approach which the two sides took. The claimants’ position was wholly unrealistic but the defendant’s was slightly optimistic. Whilst again, it would undoubtedly have been better if the claimants had engaged more constructively, I do not consider their conduct at that point to have been sufficiently unreasonable so as to justify an indemnity order.

78. I reject the notion that my order of 10 July amounted to an order to engage in ADR. It was merely an exhortation in the hiatus between 24 June and 28 August to the parties to try to agree matters where appropriate to do so. There has therefore been no breach of a court order in that respect.

79. I think it is appropriate that I specifically consider the claimants’ conduct at the detailed assessment hearings. It is one thing to raise an issue in Points of Dispute but quite another to pursue it all the way to, and at, the detailed assessment hearing, particularly after deficiencies have been expressly identified in Replies. This distinction is encapsulated in CPR Part 44.2(5)(b) which contains as criteria to be taken into account in deciding what order to make about costs, “ whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue. ”. CPR Part 44.2(5)(c) is also relevant because conduct of the parties includes, “ the manner in which a party has pursued or defended its case or a particular allegation or issue. ”

80. The Replies had real merit. They represented an opportunity, which was not taken up at the right time by the claimants, to rectify the deficiencies in the Points of Dispute before the detailed assessment hearing. Instead, in my judgment, the claimants unreasonably pursued certain issues all the way to the detailed assessment hearing itself. One example is the issue relating to the applicability of a fixed costs regime which could not possibly have had any application to the matter. Another is the application that I should recuse myself, made not on the first day of the hearing but on the second, on the flimsiest of grounds, after significant issues such as hourly rates had been determined. Some of the decisions went in favour of the defendant and some went in favour of the claimants.

81. The view which I took at the time, and which I still hold, is that the application to recuse was entirely opportunistic and made not as a result of any genuine concern about the bias or apparent bias of the judge, but in an inappropriate attempt to circumvent or to cause to be revisited certain decisions made on the first day which the claimants simply did not like. Whilst it was dealt with reasonably quickly, like other issues unreasonably pursued, it wasted court time and it lengthened the hearings. Any recusal application is a serious matter and should never be pursued opportunistically. The grounds advanced by the claimants fell way short of anything which could possibly have justified such an application. The timing of it was also significant.

82. A further example of the claimants’ conduct which caused me concern was that they raised an argument as to the reason why DJ Mauger had ordered part of the costs to be paid on the indemnity basis. Whilst, strictly speaking, the reason for an indemnity order might not have been particularly relevant (because this court’s function is to give effect to orders already made and not to enquire behind them), on consideration of the DJ’s judgment it was perfectly clear that her decision was made on the ground of unreasonable behaviour to the extent that there could have been no other reasonable conclusion. This conduct on the part of the claimants wasted more court time.

83. Significant time in the hearing was taken up with the amendments to the Points of Dispute which were made between 24 June and the second hearing on 28 August. It is, in my experience, rare for Points of Dispute to be amended after a hearing has started. The proposed amendments encompassed amendments to Points of Dispute which had already been determined on 23 and 24 June. By seeking to amend those Points of Dispute, the claimants were, to all intents and purposes, trying to have another bite at a cherry which had already been swallowed. They were also pretty much oblivious to the fact that if those amendments had been allowed to stand, the entire detailed assessment hearing would have had to have started again, essentially from scratch, and equally oblivious to the self-evident prejudice which would be suffered by the defendant. I also do not think that the claimants had much or any proper regard for the inevitable waste of court time that this would have entailed and were therefore equally oblivious to the requirements of the overriding objective. This amounted to conduct which was unreasonable to a high degree and which took the case out of the norm.

84. The claimants ran further arguments which had no merit. They tried to persuade me that provisions of practice directions which related to costs budgeting applied to the case when there had been no costs budgeting. Their arguments concerning what they considered to be discrepancies between schedules of costs for summary assessment and the claims in the Bill, were unsustainable. They encompassed submissions that the hearing should be stopped, orders made for a revised Bill, new Points of Dispute and a new hearing at some unspecified point in the no doubt distant future. One of their meritless arguments was that because a judge who had given a decision in a county court case also sat as a High Court Judge, his county court decision should be given more weight. No such principle exists.

85. I have no doubt that if the claimants had chosen to conduct themselves reasonably, the detailed assessment would not have taken four days (so far) to complete. The fact that it is not going to occupy further significant court time is down to the case management decisions which have been made recently.

86. The conclusion which I have reached is that it would not be appropriate to order indemnity costs based on unreasonable behaviour for the period up to the start of the detailed assessment on 23 June. Standing back and looking in the round at the period from 23 June I consider that the claimants’ conduct was unreasonable to a high degree which took the case out of the norm, and I would order costs to be paid on the indemnity basis from and including 23 June. As I have explained, the primary conclusion which I have reached is that costs will be paid on the indemnity basis from 19 November 2024 as a result of the application of CPR Part 36.17. Quantum of the defendant’s costs of the detailed assessment

87. Both parties have gone into some detail in their respective written submissions relating to the quantum of costs claimed by the defendant. The defendant has served a schedule of costs for summary assessment including its costs up to the end of the hearing on 29 August and those incurred in dealing with the written submissions ordered by my order of 16 September, which totals £105,092.89. I have considered all of the submissions. It is not appropriate to set them all out here and I mention below some of the more pertinent matters. The first point to make is that this is a summary assessment not a detailed assessment. See CPR Part 47.20(5).

88. The defendant’s costs incurred up to 19 November 2024 (the expiry of the relevant period of the Part 36 offer) fall to be assessed on the standard basis. Thereafter they are payable on the indemnity basis. The defendant has explained that items 1 - 7 in the documents schedule relate to costs incurred before 19 November 2024. It has also stated that the majority of the correspondence took place after that date. Further relevant points made by the defendant include that the schedule does not include costs incurred by the defendant’s solicitors, because the work was undertaken by the defendant’s costs lawyers, and therefore that there is no duplication between the costs lawyers and their instructing solicitors.

89. Mr Stockler takes a number of points in relation to the defendant’s schedule of costs. He has based his submissions on an assumption that all of the defendant’s costs will be assessed on the standard basis, a contention which I have rejected.

90. Mr Stockler takes issue with differences between schedules served prior to the two hearings and the current schedule and maintains that the court should assess the previous schedules and not the current one. He maintains that no explanation has been given for the increases. I reject those arguments. In my order of 16 September, I directed the defendant to serve up to date details of the costs it wanted to claim. It is therefore hardly surprising that costs will have increased since the end of the hearing on 29 August, not least because the defendant was required to and did incur further costs in complying with that order.

91. I accept Mr Stockler’s argument that proportionality must be taken into account in my assessment of the costs incurred up to 19 November 2024 and that any doubt must be resolved in favour of the claimants. However, after that date, the only matter with which the court is concerned is that costs must be reasonably incurred and/or reasonable in amount and any doubt is resolved in favour of the defendant. See CPR Part 44.3.

92. I accept the confirmation from the defendant that the schedule does not include duplication between the defendant’s solicitors and the costs lawyers. The schedule has been signed by the defendant’s solicitors.

93. I accept Mr Stockler’s submission that the rates claimed for the standard basis element of the schedule are disproportionate, but I also accept the assertion by the defendant that the majority of the correspondence took place in the period during which indemnity costs are payable. The work done on documents up to 19 November 2024 is claimed at £9,674. The bulk of that work (£8,840 – a total of 21.1 hours, split between three fee earners of which one, a grade B costs lawyer, spent 19.5 hours) was incurred in preparing the Replies to the Points of Dispute. I have no issue with the amount of time spent on that task as it was clearly important and necessary, but it is necessary to reduce the amount claimed because the hourly rates are excessive. There will be a reduction to the documents schedule in respect of this element of £2,500. I also reduce the work done in the rest of the schedule (i.e. everything other than work on documents) by a further £750 to reflect the fact that costs up to 19 November 2024 are to be assessed on the standard basis. I have to do the best I can in relation to a schedule which encompasses costs payable on different bases.

94. As to the costs to be assessed on the indemnity basis, I find that the rates claimed for the time at which the work was done are reasonable. I observe that the main fee earner has been Ms Hunter who is a grade C charging £365 rising to £400 per hour. Ms Hunter attended the hearings with Counsel. I find that was reasonable given the obvious assistance which she gave to Counsel at the hearings.

95. I do consider that there has been some unreasonable duplication between the various personnel at the costs lawyers. The schedule states that the time claimed excluding Counsel and court fees etc is £72,797.50, and that includes all the work done on documents. I have already reduced the schedule by £3,250. The appropriate way to deal with unreasonable duplication is to reduce the time overall by a further £3,000. It is important to appreciate that the submissions and correspondence which have occurred since the end of the hearing on 29 August have been dealt with by the costs lawyers. I draw that conclusion because the amounts claimed for Counsel’s fees do not include any such fees for dealing with the submissions.

96. As to Counsel’s fees, for the first hearing on 23 and 24 June a brief fee of £12,000 and a refresher of £4,000 is claimed together with expenses of £650, making a total of £16,650. Strictly, Counsel’s expenses are included in his brief fee and refresher. The hearing on 23 and 24 June was listed not just to deal with the detailed assessment of these costs but also of the appeal costs. Counsel had to be fully prepared to deal with both bills even though it was not possible to deal with both of them. I consider that the reasonable amount for Counsel’s fees for 23 and 24 June is £16,500 i.e. a brief fee of £12,500 and a refresher of £4,000.

97. Counsel’s fees for the hearing on 28 and 29 August have been claimed on a similar basis i.e. a brief fee of £8,000 and a refresher of £4,000 and £650 expenses. The same comments apply as to his necessary preparation. I allow £12,500 for Counsel’s fees for those two days i.e. a brief fee of £8,500 and a refresher of £4,000.

98. The rest of the schedule comprises court fees and expenses of the costs lawyers in attending the hearings, all of which are reasonable.

99. The result is that a total of £6,550 will be deducted from the defendant’s costs schedule making an overall total of £98,542.89 payable by the claimants. The claimants’ application for permission to appeal

100. Mr Stockler has advanced 10 separate grounds on which he seeks permission to appeal.

101. First, he says that I should have recused myself on the ground of actual or apparent bias because of remarks I made about the Hall. He also seems to indicate that it was not my decision to make as to whether I should recuse myself and that that decision should have been made by another tribunal. As part of his case in this respect, he relies on the decision I made not to adjourn the hearing on 28 August in order to allow the claimants to be legally represented. He further says that as a result of that decision Mr Stockler was compelled to represent himself and his son at that hearing despite him having no experience of the law relating to costs. Mr Stockler also says that my “error” in taking account of the factors of the risk to the defendant of being sued by other permanent seat holders and the risk of adverse publicity were matters which demonstrated actual or apparent bias.

102. I cannot accept that anyone would consider that any of the comments I made on the first day of the hearing demonstrated either actual or apparent bias and/or that any of those comments would come anywhere near to meeting the test for recusal as set out in Porter -v- Magill . It is well settled that it is for the judge in question to determine whether he should recuse himself. The application to recuse was made on the second day of the first hearing, after various important decisions had been made on the first day of it, some of which went in favour of the claimants. I do not therefore understand how any issues which might have related to the second hearing could have formed any basis on which the application to recuse might have been made. As I have explained above, Mr Stockler submitted dates to avoid, the second hearing was fixed by reference to those dates, he was told that he should make a formal application on notice supported by evidence if he did not like that listing, and he did not do so. At the second hearing, he confirmed that he was a solicitor with a current practising certificate and he proceeded to represent himself and his son on that basis. It is simply wrong to suggest that he was compelled to do anything. The idea that substantive decisions on merits in the course of the detailed assessment could form a basis for asserting actual or apparent bias makes no sense at all. They are not indicative of actual or apparent bias. They are evaluative decisions made on the evidence and submissions before the court. [2001] UKHL 67

103. The next ground advanced by Mr Stockler is this: when DDJ Kirby KC allocated the matter to the fast track he indicated to the parties that the risk to the defendant of being sued by other permanent seat holders was an irrelevant factor in the decision as to allocation and that the claimants relied on that indication when fighting the case. Mr Stockler says that even if, which he denies, I was entitled to take that factor into account, I was bound by the previous decision.

104. It is difficult to see how what Mr Stockler concedes was merely an “indication” could form anything binding on me. Second, the DDJ was dealing with allocation. I have been dealing with the assessment of the costs of the action. Those are two quite separate matters.

105. The next ground advanced by Mr Stockler relates to my decision that rules relating to fixed fees in fast track cases which came into force after these proceedings had commenced and that they had no application to this case, was wrong. He says that those rules, “ were indicative of what are regarded by those responsible for the rules as constituting reasonable fees in such cases ”. He further says that I should have, “ assessed the costs with a view to reaching a conclusion roughly in accordance with the new rules .”.

106. The simple issue in this respect was whether or not rules which had come into force after the commencement of this case applied to this case. I concluded that they did not.

107. The next ground advanced by Mr Stockler asserts that I was wrong to allow costs which were greater than those claimed in schedules for the two hearings before DDJ Kirby KC and DJ Mauger because those schedules constituted confirmations by the defendant that the costs in respect of those periods did not exceed the sums claimed therefor. He relies on the case of Barbara Staples -v- City of York Council (Leeds County Court 13 October 2008, unreported).

108. I concluded that there were a number of flaws in Mr Stockler’s arguments concerning the previous schedules and a comparison between them and the costs claimed in the bill. It is not necessary in this part of this already lengthy judgment to set them all out. The most important one was that the schedules had been prepared on a different footing to the Bill not least because at the end of the case, DJ Mauger ordered part of the costs to be paid on the indemnity basis. Further, the reliance on a non binding case was somewhat misplaced. In 2008 the judge was dealing with different practice directions and rules.

109. The next ground advanced by Mr Stockler relates to the amendments to the Points of Dispute which occurred between the end of the hearing on 24 June and the beginning of the next one on 28 August. He says I was wrong not to consider the amendments.

110. I assume by this ground that Mr Stockler in fact means that I was wrong to disallow the amendments. It is certainly not correct to assert that I did not consider them. Disallowing them necessarily involved me considering them in the first place. This ground in essence is an attack on the exercise of a discretion pursuant to paragraph 13(10) of the Practice Direction to CPR Part 47. Mr Stockler complains that after he had served his amended Points of Dispute the defendant did not make an application that they should be disallowed and instead asked for them to be disallowed at the hearing on 28 August.

111. As I have explained above, it is rare for Points of Dispute to be amended between hearings. Mr Stockler wished to rely on amendments which would have required the court to revisit many of the decisions which had already been made. Mr Stockler contends that my decision prevented the claimants from, “ presenting many of their principled detailed arguments on the reasonableness of the Defendant’s Bill of Costs and therefore constitute a breach of the Overriding Objective ”. Quite why the claimants thought it appropriate not to set out, “ their principled detailed arguments on the reasonableness of the Defendant’s Bill of Costs ” in the original Points of Dispute is not at all clear. That is, after all, the purpose of Points of Dispute. I cannot see that a judge on appeal would conclude that I had erred in the exercise of my discretion. In any event, prior to the hearing on 28 August the defendant had made it very clear that it would be taking issue with the amendments. It was entitled to do so given the considerable lateness of them.

112. Finally, Mr Stockler takes issue with my first judgment which dealt with his submission that there should be a reduction after the line by line assessment on the ground of proportionality. That was a detailed judgment which set out clearly the reasons for the conclusions which I reached.

113. I do not consider that any of the grounds advanced by Mr Stockler has any real prospect of success and/or that there is any compelling reason for there to be an appeal. Permission to appeal on all of the proposed grounds is refused. Further matters

114. There are potentially two matters outstanding: first the incidence and quantification of the costs of the claimants’ application of 27 October. Second, any applications for permission to appeal my decision in relation to it. The parties will kindly submit a draft Order reflecting the decisions made in this judgment. If there are any further matters which they cannot agree, they will be dealt with by after consideration of written submissions.