Cuthbert v Gair & Anor (t/a The Bowes Manor Equestrian Centre), Court of Appeal - Supreme Court Cost Office, September 03, 2008, [2008] EWHC 90114 (Costs)

Resolution Date:September 03, 2008
Issuing Organization:Supreme Court Cost Office
Actores:Cuthbert v Gair & Anor (t/a The Bowes Manor Equestrian Centre)

Case No: 0707696

BAILII Citation Number: [2008] EWHC 90114 (Costs)



Clifford's Inn, Fetter Lane

London, EC4A 1DQ

Date: 3rd September 2008.

Before :


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Between :

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Mr R Mallalieu (instructed by Costs Advocate) for the Appellant

Mr J H M Farber (instructed by P Jane M D Phillips) for the Respondent

Hearing date: 23 June 2008

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Master Haworth :

1. This is an appeal pursuant to CPR Rule 47.20 from a decision of Costs Officer Martin in relation to a detailed assessment which took place on 4 March 2008.


2. The Appellant commenced proceedings seeking damages for personal injuries suffered as a result of a collision between herself and a horse whilst attending an equestrian event at the Respondent's premises on 16 December 2004. In the initial letter of claim dated 3 February 2005 the Appellant's solicitors alleged negligence and/or breach of statutory duty under the Occupiers Liability Act 1957. Following an initial pre-action protocol investigation proceedings were commenced in February 2006 seeking damages limited to £15,000. The Respondents filed a defence denying liability and/or negligence and putting the Appellant to strict proof of her claim.

3. The matter proceeded to a case management conference and disclosure of detailed witness statements. The action was allocated to the Fast Track with a trial listed to commence on 1 November 2006. On 27 October 2006 the Appellant's solicitors put forward an offer to discontinue proceedings on the condition that each side bear their own costs. The offer was rejected by the Respondent and on 30 October 2006 the Appellant's solicitors filed notice of discontinuance.

4. Costs could not be agreed and on 21 June 2007 the Defendant's solicitors requested detailed assessment of their bill of costs. On 18 December 2007 Deputy District Judge Eddon sitting at Middlesbrough County Court transferred the detailed assessment proceedings to this office. The matter was heard by Costs Officer Martin on 4 March 2008, when costs were assessed at £10,235.17 including the costs of detailed assessment.


5. Notice of Appeal was lodged on 25 March 2008 in the following terms:

(1) Item 14 of the bill of costs (disbursement in respect of Questgates) claimed and allowed in the sum of £1,850 plus VAT


The Costs Officer was wrong as a matter of law and/or on the facts of this case to allow the recovery of any part of the ``disbursement'' claimed at item 14 of the bill of costs for any or all of the following reasons:

(i) the sum related to pre-litigation work undertaken by someone other than a legal representative and does not fall within the categories of ``costs'' recoverable on an inter parties basis;

(ii) the sum claimed was incurred at a time when the Defendants were not legally represented and does not properly form a disbursement of the Defendants' solicitors or a disbursement or expense of the Defendants such as to be recoverable on an inter parties basis;

(iii) the sum claimed formed no part of any liability of the Defendants and accordingly its allowance on an inter parties basis was in breach of the indemnity principle. In that regard given that the sum incurred was not a disbursement of the Defendants' solicitors the court should not have attached any or any significant weight to the Defendants' solicitors' signature to the bill of costs.

(2) The order in relation to the costs of the detailed assessment, assessed in the sum of £2,505.53


If the Claimant's first ground of appeal is successful there should be consequential orders in respect of the costs of the detailed assessment and the costs of the appeal.


6. Item 14 of the bill of costs is set out in the following terms:

(14) Paid their fees and expenses for initial pre-action protocol investigations and correspondence with the Claimant's solicitors; carrying out further enquiries/investigations and taking detailed statements:

Invoice dated 7 July 2005 £1,203.9

Supplementary invoice dated 5 July 2006 £789.36

7. In response to the bill of costs the points of dispute in relation to item 14 state:

``The Claimant submits that the costs of the loss adjusters are not recoverable against the paying party.

The loss adjuster is not a body that can claim legal costs under the Solicitors Act 1974, nor can they be said to be acting as a litigant in person.

The adjuster did not produce an expert report for the benefit of the court.

The Claimant has no offer to make.''

The Reply is couched in the following terms:

``The Defendants' loss adjuster (Questgates Ltd) undertook the initial pre-action protocol investigation. The work undertaken included entering into and conducting initial correspondence with the Claimant's solicitors.

These costs incurred are clearly `of and incidental to' the proceedings and the Claimant's solicitors are respectfully referred to the court's inherent jurisdiction to allow the recovery of such fees pursuant to s.51 paragraphs (1) and (3) of the Supreme Court Act 1981 which provides:

`(1) Subject to the provisions of this or any other enactment and to rules of court the costs of and incidental to all proceedings in the Civil Division of the Court of Appeal; the High Court, and any other county court shall be in the discretion of the court.


(3) The court shall have full power to determine by whom and to what extent the costs are to be paid.

The Defendant does not understand the references to (i) the Solicitors Act 1974 and/or (ii) the fact that the loss adjusters have not produced a formal expert report and the Claimants are requested to clarify these points.

In an effort to resolve this particular issue the Defendant will concede an overall fee of £1,850.

N.B: For the avoidance of doubt the Defendant confirms that the above offer/concession remains open for acceptance until commencement of the detailed assessment whereupon if it is not accepted it will be withdrawn and the Defendant will seek recovery of the full amount claimed.''

8. Costs Officer Martin at detailed assessment allowed the sum of £1,850 plus VAT of £323.75 in respect of item 14. There is no note of his reasoning relating to the reduction on the bill, although it would appear to accord with the offer made by the Claimant in the Replies.

9. It is common ground that Questgates are loss adjusters who were engaged by the Defendants' insurer (SLE Worldwide) to investigate...

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