When arguing for costs to be summarily assessed downwards, is it a valid approach to compare the total of your costs bill with your opponents’ total? The High Court has recently answered this in the negative.

In Monex Europe Ltd v Pothecary & Anor [2019] EWHC 2204 (QB), Clive Sheldon QC, sitting as a Deputy High Court judge, was considering the matter of costs after dismissing the Claimant’s application for an injunction against the Defendants. He awarded costs to the Defendants and quantum was being summarily assessed on the standard basis. The Claimant argued that their total for costs was £44,669, and that the Defendants’ bill was unreasonably high in comparison, at £85,446. The judge held that this was irrelevant when performing the summary assessment exercise.

The judge specifically drew attention to the requirement for costs to be ‘proportionate to the matters in issue’, at CPR 44.3(2). What determines whether or not they are proportionate? Crucially, it is the factors set out at CPR 44.3(5). It is the relationship between the costs claimed and those listed factors which is the basis for the assessment exercise. The gap between one party’s costs total and the other’s is not on that list.

In the assessment in this case, the judge made five deductions, four of which were for what he considered to be excessive time spent on documents, and the fifth being for a degree of duplication within each Defendant’s witness statement. The overall quantum was reduced by 13%, to £74,041.

In this decision, the High Court has reminded litigants that ‘theirs is bigger than ours’ is not an argument expressly grounded within CPR 44. It is important therefore to lead with submissions based on the factors explicitly identified within the rule, before reverting to the catch-all reference to ‘all the circumstances’ in CPR 44.4(1).