Sarfaraz Awan v Kamlest Patel & Ors

1. This is my oral judgment following a series of hearings on the 3 rd , 9 th and 30 th September when the argument finished. That was late on Wednesday. Having had a number of other hearings that day, I decided to adjourn to this morning to give judgment.

2. The issue I must determine is whether, on the Applicant's application dated 27 February 2025, I should order the Respondent to serve Notice of Commencement of Detailed Assessment Proceedings and a Bill of costs. The order is sought following an order of costs in the Respondents’ favour on 20 October 2017, nearly eight years ago. No Bill of costs or Notice of Commencement has since been served.

3. There are other associated matters Mr Awan raises, or raised, but during the argument he indicated he was not now asking me to make any order on the application for instance, for disallowance of costs or disallowance of interest. These can be dealt with later. The order he wanted me to make now, in accordance with the application, was for the commencement of detailed assessment proceedings by way of an unless order.

4. The application had been listed by myself initially for a 30 minute, That was perhaps a miscalculation on my part. Applications such as this are reasonably common and often agreed or take little time to determine, and when listing the application I had not anticipated all the arguments that might arise. It turned out that the arguments were lengthy and detailed, with multiple sets of written submissions – prompted, I should say, at least in part by matters I had raised.

5. I am grateful Mr Lipson for his hard work, and indeed for Mr Awan for his work. Mr Awan is acting in person, but has, it seems to me, assiduously researched this matter - along with Mr Lipson.

6. I should mention that there were in fact in substance two applications at the outset, one for a stay of an execution, and the application that I am dealing with today. I decided to transfer the stay application back to the Chancery Division, partly, at least, because there was an existing application in the Chancery Division. It seemed to me inappropriate for a stay application to be determined in two halves before two different courts. This was particularly so, as the Chancery Division, has been dealing with these underlying proceedings, was likely to have a greater appreciation of the history of this case. Deputy Master Teverson has since stayed execution pending my decision on this application, and the matter will revert back to him whatever my decision is, I think, for him to decide whether it should continue. Background

7. The Respondents to the applications were the successful Defendants and Counterclaimants in underlying proceedings (HC -2014-000621), the nature of which is not important for current purposes. The Applicant was a third party, and his wife, Isabelle Awan, was the Claimant.

8. By paragraph 2 of his order of 20 October 2018, Sir John Baldwin QC, sitting as a deputy High Court judge, provided that the Applicant, along with his wife, Mrs Awan, were jointly and severally liable to pay the Respondents’ costs of the claim, the counterclaim and the additional claim, on the standard basis to be assessed if not agreed.

9. It is perhaps important to note that the costs were payable on the standard basis to be assessed if not agreed. The conventional order for costs , would be ‘subject to detailed assessment if not agreed.’ But nobody has really addressed me on this, may be because the assessment must mean detailed assessment in accordance with the 44PD.8. Indeed the Mr judge would have reserved it to himself if he had intended to summary assessment. In any event nothing really turns on this. The point is that costs were to be assessed if not agreed.

10. It is of particular importance for the purposes of this present application, indeed the stay application, that the Applicant and his wife were also ordered to pay the sum of £118,800 on account of the costs ordered to be paid under the costs order that I have just referred to –paragraph 2. The sum was payable by 4.00pm on 10 November 2017 by paragraph 3 of that order.

11. That sum not having been paid, in turn it became a judgment debt. On 3 February 2019 Chief Master Marsh granted a final Charging Order against the property, which I understand belongs to the Applicant, 10 The Glebe , Bedford on the basis of this debt.

12. On 7 March 2024, Master Kaye ordered a conditional order for sale, whereby unless the judgment debt, being the costs, were paid, plus accruing interest, the property would be sold, for at least £500,000. Master Kaye gave a detailed judgment, in which she rejected the argument the order that that the interim on account payment, was not an enforceable order. She held that it was a matter of choice for the receiving party as to whether to enforce an the interim order balancing the risks and benefits of not progressing the detailed assessment. But as I understand it not to be in dispute that these consideration not really integral to the point she determined which was that the interim on account of costs was an enforceable order, and thus a charging order could be made and in due course an order for sale could be made.

13. The Applicant and his wife subsequently sought to appeal that decision. On 19 July 2024 Fancourt J refused permission, stating that the Applicant and his wife had misunderstood the difference between an order for the payment of costs that had not yet been assessed and an interim payment. He held that there was no real prospect of establishing that an order for interim on account payment was not enforceable. He too made a number of remarks in his decision, but again, as I think Mr Lipson accepted, they were not integral to this decision. He noted what he referred to as to the ‘checks and balances’ in CPR 47 and said there was no requirement for a judgment creditor to pursue a detailed assessment, nor was there a requirement to make an interim payment conditional on the assessment machinery being invoked. These remarks also do not seem to me seems to be integral, or necessary, to the question whether the orders for interim on account payments are enforceable. He went on to say that the possibility of assessed costs being less than the amount of the interim payment did not justify refusing to allow the interim payment to be enforced in the interim.

14. Mr and Mrs Awan requested that the decision be reconsidered in an oral hearing, but failed to attend the hearing. Fancourt J refused, or as it were, re-refused the application for permission to appeal. There was then an attempt to apply to the Court of Appeal on 9 January of this year. Lewison LJ held that there was no jurisdiction to consider an appeal from the refusal of permission, and in relation to other matters effectively rejected the application permission. I do not think I need to go into this background in any more detail at this stage. The rules

15. The relevant rules are found, principally at least, in Civil Procedure Rule 47 which is headed ‘Procedure for Detailed Assessment of Costs’.

16. CPR 47.6(1) provides:: 47.6 (1) Detailed assessment proceedings are commenced by the receiving party serving on the paying party – (a) notice of commencement in the relevant practice form; (b) a copy or copies of the bill of costs, as required by Practice Direction 47; and ….. (c) if required by Practice Direction 47, (Rule 47.7 sets out the period for commencing detailed assessment proceedings.)

17. CPR 47.7. is in tabular form, but provides that where “ the source of right to detailed assessment is a judgment, direction, order award or other determination, detailed assessment proceedings must be commenced within three months ”.

18. Mr Awan emphasised the word ‘must’ in the provision and argued that that means what that there obligation was on the Respondents in this case to commence detailed assessment, an obligation that they failed to fulfil.

19. CPR 47.8 provides: (1) Where the receiving party fails to commence detailed assessment proceedings within the period specified – (a) in rule 47.7; or (b) by any direction of the court, the paying party may apply for an order requiring the receiving party to commence detailed assessment proceedings within such time as the court may specify. (2) On an application under paragraph (1), the court may direct that, unless the receiving party commences detailed assessment proceedings within the time specified by the court, all or part of the costs to which the receiving party would otherwise be entitled will be disallowed. (3) If – (a) the paying party has not made an application in accordance with paragraph (1); and (b) the receiving party commences the proceedings later than the period specified in rule 47.7, the court may disallow all or part of the interest otherwise payable to the receiving party under – (i) section 17 of the Judgments Act 1838 ; or (ii) section 74 of the County Courts Act 1984 , but will not impose any other sanction except in accordance with rule 44.11 (powers in relation to misconduct).

20. In Haji-Ioannou v Frangos & Others [2006] EWCA Civ 1663 , a copy which Mr Awan produced to me, the Court of Appeal noted that the provisions, which came in with the Civil Procedure Rules, replaced what was described as to the much more cumbersome provisions in the RSC.. The new rules were understood to avoid much of the satellite litigation associated with the earlier rules and were generally regarded as having proved effective. It is appropriate for me to mention this, way of passing comment only, but it might be understood that these new rules provided a largely self contained scheme for dealing with the question of delay in the commencement of detailed assessment proceedings. The parties’ positions

21. Mr Awan. who appears to have he has suffered bad health recently, is acting for himself. He was, as I understand it - or at least I was told, at one time a litigation solicitor. He argued the point before me with clarity - it appearing that he had researched the matter in some depth.

22. His position that was that he is entitled to apply for detailed assessment, or an order compelling the Respondents to commence such an assessment, even at this late stage. The Respondents, the receiving party ought, within the three months provided on 47.7, to have applied for an assessment. The order for costs which was made is only an order for payment on account, on account of any agreement as to costs or detailed assessment, or assessment. There being no agreement, there must be an assessment because there was no complete or final order providing for payment. I hope I do justice to his point, but that was the essence of the point.

23. The position of the Respondents is that the application for them to commence detailed assessment proceedings, is an attempt by the Applicant to frustrate the Respondents’ recovery of the judgment debt – a sum inclusive of interest as at 3 September, understood be £201,243.64, or thereabouts.

24. As I have already indicated at an early hearing I have difficulty seeing the prospect of detailed assessment, is necessarily a ground for a stay - noting the observation of the Fancourt J to this effect- so even if I were to accede to it the application it is not necessarily determinative of the stay, This appeared to me, although it was not a finding, a reason why I could decouple the two substantive applications. I was however concerned that in respect of the associated application for a stay the Applicant was seeking to reargue the very points that he had lost before Master Kaye, a matter which I suggested he could not do, at least to the extent that they were integral to the decisions which had been made.

25. Mr Lipson argued that there was no obligation to commence detailed assessment proceedings under 47.7, a party could simply rely on an order for the interim on account payment without having to take any further steps. There was in effect an option to commence detailed assessment under the rules. He says that the Respondents have, in fact, not done nothing and have taken action to enforce the interim on amount order. But his case was that it was open to them simply to rely on the interim on account payment and not take any further steps.

26. Mr Lipson says the Respondents have in fact no intention of progressing this matter to a detailed assessment. That is for very good reason, he says, because he says there are understandable difficulties with enforcement as indicated by the fact that even now they are arguing about whether an order of sale should be stayed many years after the event, and that there are substantial costs in the process of detailed assessment, which they would want to avoid.

27. Mr Lipson goes on to say that the paying parties have not made any application, as they might have done under 47.8, requiring the Respondents to serve detailed assessment proceedings until many years after the event. The inference from those circumstances is that Mr Awan, and effectively his wife, are -as I have mentioned -now using this provision for an alternative ulterior motive, which is to frustrate or stall enforcement of the on account costs order.

28. He further contends that there is a discretion under 47.8 for me not to compel a detailed assessment. I should not require the Respondent to serve a notice of commencement under the provisions, and, having regard to what he submits are compelling features of this case, I should not exercise my discretion in favour of Mr Awan. I should just let the order lie, let as it were- the sleeping dogs lie, if I could put it that way.

29. It seemed to me that in those circumstances it might be said that Mr Lipson was in effect -and for practical purposes- arguing that interim on account order should provide the ultimate right to payment. As I put it to him in the course of argument what he, in effect, was seeking to do, is to rely on that interim on account as if it were a final order which finally disposes of the costs. Be that as it may, the essence of Mr Lipson’s position was that I have a discretion to refuse the application which I should exercise in his favour. Decision and Reasons Is there an option to commence detailed assessment proceedings?

30. The first issue that I think I need to address is whether under the provision CPR 47 there is in effect an optional scheme whereby parties may not commence detailed assessment if a costs order is made in conventional terms.

31. In my judgment, the rules are clear. A party in whose favour an order for costs is made - an order which provides for detailed assessment, must commence detailed assessment within three months. The word ‘must’, in the provisions of 47.7. is of importance and plainly, to my mind, is inconsistent with this step being optional.

32. I appreciate that Fancourt J, in refusing permission to appeal, rather suggests that there may be an option. Mr Lipson accepted, intending no disrespect, that the remarks may have perhaps be seen as being ‘throw away’. But in any event he acknowledged that they were not integral to what Fancourt J decided. It is clear to me that these observations in a decision on an application for permission to appeal were not a matter that I could be bound by.

33. Quite apart from the use of the word ‘must’ there are quite a number of other matters which support the conclusion that there is an obligation to commence detailed assessment and that is it not optional.

34. 47.8 provides: “ where the receiving party fails to commence detailed assessment proceedings within the period specified in rule 47 ”. The word ‘fails’ connotes to my mind an obligation to commence. There must be an obligation to do so because it is only if there is obligation to do so could there be a ’failure’. At least that to my mind is the correct reading of the rules in the context of the other provisions.

35. Further, there are comments of Court of Appeal in Haji-Ioannou. In that case a party failed to commence detailed assessment proceedings within the relevant period. The Court were principally concerned with the provisions of CPR 44.14, as they were, which set out powers in relation to misconduct in detailed assessment proceedings and whether there had been any misconduct. Longmore LJ said this at [9], dealing with delay: “ The judge then proceeded, rightly, to hold that there is no inconsistency between part 44.14 and 47.8. It may, however, be said that there is a certain tension between them. A failure to commence detailed assessment proceedings within the three months required by Part 47.7 may fairly be described as a failure to comply with a rule and, therefore, at least be included in the general term ‘fails to comply with a rule’ within the words in 44.14(1)(a). Yet it can scarcely be supposed that, when 47.8 provides the court ‘must not impose any’ sanction other than the disallowance of interest ‘except in accordance with rule 44.14 (powers in relation to misconduct)’, every failure to commence detailed assessment proceedings should be regarded as misconduct and permit the disallowance of costs as well as interest .”

36. And then at [17]: “ Of course delay is to be deprecated but where the relevant rule not only gives to the party at the receiving end of the delay the option of preventing further delay by himself taking the initiative but also spells out the normal sanction for penalising such delay … it seems to me that the court should be hesitant to exercise further powers to impose further penalties by way of reducing otherwise allowable costs.”

37. Mr Awan significantly misquoted or interpreted these passages in his skeleton argument, as Mr Lipson pointed out. However it is clear from these passages that the court took CPR 47.7 to be a rule that imposes an obligation to serve detailed assessment proceedings within three months and that failure to comply with that rule is a breach of that rule. As Longmore LJ makes clear , not every time this happens will it amount to misconduct. But the absence of misconduct does not mean there has not been a failure to comply with a rule.

38. There may be indeed be good reasons why a party is unable to serve a bill within three months. It can be an unrealistic period of time to prepare a bill in the high value cases that we sometime deal with. In such cases the parties can agree extensions of time. It is perhaps surprising to me, and perhaps to others, how infrequently parties apply for an extension of time for service of bills. But parties do, sometimes I think, agree extensions of time. There is moreover no doubt, that the practice of parties is generally to agree that judgment rate interest does not run in a period of delay - as a reflection of a failure to commence within time. So, at least as I see it, the notion that the commencement is optional is not accordance with general practice and the way parties generally interpret the rules.

39. There are perhaps other things to be said about this but for all the reasons I have given in my view the obligation under 47.7 is not optional. It does not become optional there having been a failure to commence proceedings in the three months. The receiving party is still in breach after the three month period - as 7.8 (2) might suggest. Accordingly, I reject the Respondent’s case on this point. They should have served a Bill and Notice of Commencement within 3 months of the costs order an are in breach of the rules.

40. That takes me to the second point of construction which arises on this application. Does 47.8 (1) give rise to a discretion not to compel a party to commence detailed assessment proceedings?

41. Mr Lipson has argued, as I have already indicated, that it does.

42. It is correct that the provision is permissive in one sense because it makes clear that the paying party may apply for an order requiring the receiving party to commence detailed assessment proceedings within such time as the court may specify. The first use of the word ‘may’ is however directed to the act of applying, giving the paying party power to stop delay and thus bring about detailed assessment. The court also clearly has a discretion to order an unless order under subrule (2). But the terms of subrule (1) allow the paying party to apply “ for an order requiring the receiving party to commence” proceedings and do not expressly give the court a discretion to refuse the application.

43. I agree that the fact that rules provided for an application to a judge rather than a court officer point to the court having some discretion. If it were otherwise, the rules would provide for the matter to be dealt with by a court officer. Further the rules do not say that the court must order the commencement of detailed assessment proceedings. I can thus see the force of the point that it must be implicit in the rule that the court has a discretion not to make such an order. Again, if were otherwise the rule would have said so. Albeit the rule is perhaps not quite as clear as it might be I am prepared to agree with Mr Lipson's analysis on this point to the extent of accepting that the court is not required to make an order for detailed assessment and there must some discretion.

44. That said, I do not think that there is a general discretion to be exercised in the way that Mr Lipson was urging me to do. It seems that at the very least there must be a good reason why the Court should not make an order for the commencement of detailed assessment proceedings if an application is made,

45. There may, as I have recognised, be a good reason not to commence in accordance with the time limit in the rules. The three month time limit can be unrealistic in some cases. It seems to me perhaps obviously, that the court might not be obliged to make an order in those circumstances. Or at least it is perhaps conceivable there are circumstances where no order would be made. I have to say I find it difficult to imagine that in the ordinary case a court would not make some order for detailed assessment because the Court, even if it does not make an unless order, is going to want to ensure that there is some time limit applicable to the service of detailed assessment proceedings. In general the Court should not, in accordance with the overriding objective permit substantial delay. But I do accept that it is conceivable that there may be circumstances where it may not appropriate to compel a party by order the commencement of detailed assessment proceedings.

46. Certainly, however as Mr Lipson’s research revealed, a number of judges- Master Kaye in Ineos Upstream v Persons Unknown [2023] EWHC 214 (Ch) in [114], and in Michael Wilson & Partners Ltd v Emmott [2025] EWHC 747 (Comm) , HHJ Pelling KC, sitting as a judge of the High Court, appear to accept the provision exists in order to compel a party who has not served detailed assessment proceedings in time within, to compel them to do so, to enforce an obligation to do so. That, it seems to me, clearly is the purpose that underlies that provision. Whilst I am prepared to accept, as I say, that Mr Lipson is right that the provision does not itself require that the Court make such an order, and if not obliged to do so, there must be some discretion, undoubtedly that discretion has to be exercised with its purpose in mind, which is to bring the costs claim to a conclusion within a reasonable time. How then should I exercise such a discretion?

47. One of the particular and perhaps central, difficulties I have with the Respondent’s case, although it is not determinative of this matter, is the point that Mr Awan makes. As things stand the order for payment of £118,000 is for an interim on account payment. It is on account of the costs due on an assessment or a detailed assessment, if such costs have not been agreed. If costs are not agreed the payment is made on account of sums due on the detailed assessment. If there has been no detailed assessment - or no agreement, then I think Mr Awan is right to say, effectively there have been no final determination or agreement as envisaged by the original costs order.

48. The £118,000 is payable on account of the sums which it was anticipated will be payable on assessment. The assumption which thus underlies the order is that receiving parties will progress the claim for costs to a detailed assessment. In this case they have not done so. It must follow from this that payment having been made because of the liability for costs arising on a detailed assessment – if not agreed, and there must be an assessment. So, it would follow from the terms if the orders that I should order the service of notice commencement.

49. If I were to refuse this application, the interim on account payment order would remain, and continue to be an enforceable order. I put it to Mr Liposn, not meaning to be pejorative, that in effect he was seeking to convert what is an interim on account order to a final order. And I am not persuaded by him that I have the ability to do that by the terms of the rules not least because the rules, at least in their express terms, envisage that orders will be made on an application under CPR 47.8(1) to e nforce an obligation to commence detailed assessment.

50. Had it been anticipated there been a general discretion to make such an order it would, I think, be set out in express terms in the rule. It is not a necessary interpretation - the rule works well as it is ordinarily interpreted. Indeed if there were such an option to commence detailed assessment, it would substantially change the way costs are resolved with a far greater emphasis and time taken on applications for interim an account with the potential for substantial unfairness - and the potential for satellite litigation as to exercise of the discretion.

51. I think Mr Awan is right about this, and clearly so. For what it is worth, as I understand it, the provision is not commonly interpreted as giving rise to a general discretion. If an application is made it for commencement as I understand it will at least generally be made.

52. There are other ways of dealing with the problems that Respondents say arise - as is as demonstrated in Pipia v BGEO Group Ltd [2022] EWHC 846 (Comm) . The court in that case, having made the standard order for detailed assessment of costs, there was no effective engagement on the part of the paying party in relation to the costs. Satisfised that that was a material change of circumstances, having regard to Tibbles v SIG [2012] 1 WLR 2591 (Court of Appeal), the Judge varied that order to provide for summary assessment of costs to avoid the receiving party having to apply for detailed assessment.

53. Indeed I suppose if it is clear that a party is not engaging or not going to be engaging on the question of costs, it might always be open to a court, when making its order as to costs, to say there should be a detailed assessment but to make provision in the event of particular circumstances the matter can also be dealt with by a summary assessment. So, the matter can return to that the court to determine the costs by a summary assessment.

54. I accept and acknowledge the force of the point that Mr Lipson makes, that when a court makes an interim on account, the Court seeks to reflect the likely level of costs payable, following the guidance in Excalibur . That process is intended to assist the parties in determining or agreeing what those costs will be. But there may be real difficulties in the court forming a clear view as to the costs at a interim stage. The making of an interim on account order has another significant purpose, which is that it enables the receiving party to secure, by interim Charging Order or final Charging Order, or other such means, the sums which are going to be due to them by way of costs. It is an important step which enables the successful party to secure, as it were, the proceeds or the fruits of the litigation as it sometimes called. Recovering costs, as much as recovering damages, is important to a party and an a interim on account order may be important in securing an effective remedy. In the circumstance I do not accept the point made by Mr Lipson that if an interim on account payment cannot stand, as it were, as a final determination of the costs it would deprive the rules of their intended effect. It seems to me it plainly does not do so. The making of an enforceable order costs plainly does serve a useful purpose, even if, at the end of the day, there has to be a detailed assessment.

55. However, regardless of this and even if I were wrong about all this and there were a discretion in the fuller sense intended by Mr Lipson, I am satisfied that I should make an order for detailed assessment.

56. I acknowledge, that there are costs associated with serving a Notice of commencement and a bill of costs. In large litigation, the costs of drafting heavy electronic bills can be substantial, but in this case the solicitors should have the papers, the attendance notes. They should have time ledgers. There should be, at least I would assume there are, solicitor/client invoices which have been delivered. I do not know. Solicitor/client invoices have to be a detailed, reasonably detailed record of the costs – the solicitors’ fees and disbursements. They should set out of the costs that are due reasonably due. In any event I do not think the preparation of a bill in this case, even though it may be for more than £118,000, is really a very significant or costly undertaking at all.

57. I also appreciate that if Points of Dispute were served then there might need to be a fee paid for request for detailed assessment. Fees for detailed assessment have increased over years and are not insubstantial, albeit this this case would perhaps be at the more modest end of the scale In an appropriate case there could be exemption or remissions for such fees if the receiving parties entitled to them. In any event I take these fees into account but do not consider this factor, even making allowance for the possibility of a need for such fees being paid, as having much weight.

58. I appreciate too the Respondents have been concerned about the difficulties with enforcement, in the sense that that has been held up- at least by the appeal process. But, when properly examined, it seems to be important to note that the Respondents in this case, have secured by Charging Order, at the very least a substantial amount of their costs and interest. Although there is reference to there being other charges against the Applicant and his wife's property, I have not seen any evidence as to the extent of those charges as Mr, Lipson acknowledge, so I am satisfied that that it would be appropriate to proceed on the basis the costs of a cost claim and interest is likely to be fully secured. That puts the Respondents in a more advantageous position than many.

59. It would always be open to the Respondents, in a Bill of Costs and in Notice of commencement, to limit their claim to the amount of the interim on account payment so the Respondents could in this case effectively to limit their claim to £118,000 plus interest. I understand that the case may have been costs budgeted. I do not know whether there might not be much room or prospect for putting in any substantial points of dispute- there may be.. If no such points were served the Respondents would be entitled to a default cost certificate without the need for any costs assessment at all. If they are served, and costs cannot then be agreed a detailed assessment may not take long.

60. In any event, I am not satisfied that Mr, Lipson has provided any good reason not to have a detailed assessment. Whilst I acknowledge that the order ought would oblige the Respondents to undertake further steps with costs implications, I am not satisfied that they are as substantial or difficult or should weigh heavily against making of any order for commencement for detailed assessment. Many of the factors which are relied for not proceeding to assessment could be raised by any receiving party. But even accepting that the passage of time is substantial in this case it is not to my mind a good or sufficient reason it to make the order sought and to deprive the Applicant of the ordinary entitlement to the service of a bill and assessment.

61. So, quite apart from my concern about the difficulties arising out of the precise effect of the orders (and that assumption that might under lie the original costs order that there would be a detailed assessment) it seems to me, that having regard only to these factors that Mr Lipson has put before me they are insufficient to outweigh the factors in favour of a detailed assessment. If the discretion were to be exercised having regard to the need to bring about finality it would certainly to my mind, would have to be exercised in the Applicant’s favour.

62. I would add that in general a receiving party requires a bill of costs in order to know what it has to pay - in order to assess the reasonableness of the costs. If there is no bill it will be difficult to know whether the costs are reasonable and whether it is reasonable to challenge the costs – even in a case which has been cost budgeted. In circumstances where the amount of costs has only been considered on an interim basis and perhaps summary basis, the receiving party may not have any clear idea of the reasonableness of the costs claimed. A Bill should also a description of the retainer, and a certificate which gives the paying party the assurance that the sums claimed have actually been spent. Issues can and do arise as to whether the retainer covers the costs, and costs following assessment may be less than the interim on account costs. -abuse and other such considerations

63. There were quite a few other points raised, which, to be fair to Mr Lipson, were raised following concerns raised by myself at the first hearing in the subsequent email exchanges. It seemed to me in particular, there might some substance in the suggestion that the reason for the application was to stall the enforcement process, and that could be said to be an ulterior motive behind this application.

64. The substance of the point now made by the Respondent is not only has there been very substantial delay by the Applicant but the delay and conduct of the Applicant amount to an abuse. And for these reasons the discretion should be exercised in the Respondent’s favour.

65. I have had in mind all these factors. In the event however - and notwithstanding that Mr Lipson has been diligent in addressing these - I am not persuaded that these considerations make any difference.

66. As I read Haji-Ioannou , considerations of abuse now have little part to play in dealing with the delay in commencing detailed assessment proceedings. The case appears to indicate that there the provisions are a self contained scheme dealing with delay, with prescribed sanctions. The receiving party faces the prospect of paying judgment rate interest. The paying party faces negative consequences, the deprivation of interest.

67. However I accept there must come a point, when the delay is so long that it would not be appropriate for detailed assessment to go ahead. In my judgment that point has not been reached in this case, notwithstanding there has been substantial delay. It would not be unfair for this matter to proceed to detailed assessment nor is there any other reason why this matter could proceed to an assessment even now some years after the relevant work was done.

68. It is plain that mere delay is not ordinarily sufficient to strike a claim for want of prosecution. In Icebird Ltd v Winegardner [2009] UKPC 24 , the Judicial Committee of the Privy Court confirmed that principles that apply to a consideration as to whether a claim should be struck out on grounds of want of prosecution are those set out in Birkett v James [1978] AC 297 . The power to strike out should only be exercised where the court is satisfied that: “Either (1) the default has been intentional and contumelious, e.g. disobedience to a peremptory order or conduct amounting to an abuse of the court. or (2) (a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyer, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in action or that there is likely to be serious prejudice to the defendants either as between the themselves and the claimant and the plaintiff or between them and third party.”

69. The courts are however used to assessing of costs which relate to work done a long time ago. In Michael Wilson & Partners Ltd v Emmott , the court was concerned with a delay of 12 years, a very long period of time. It is not in any event unusual for litigation to cover long periods and for the court to have to assess the reasonableness of work over such periods which and which was done many years ago.

70. Moreover, there is no reason to believe solicitors should have kept their papers. There are likely to be solicitor/client invoices. I was not told whether there was, but it would be surprising if they were not. There should in any event be the underlying papers. Most costs assessment are decided on the papers and do not require oral evidence or depend on the recollection of witness, mere delay, substantial as it is, could not in my judgment justify this matter not proceeding to assessment. I am not satisfied that there is any serious risk that it is not possible to have a fair trial or fair assessment. The Respondents are not prejudiced or significantly so for the same reasons - indeed even if they were, it might be said it is of their own making.

71. Even if it could be said, has been delay in, on the part of Mr Awan, in making this application, I am not satisfied it amounts to an intentional or contumelious conduct.

72. It not clear to me Mr Awan he did not know about this provision 47.8 (2) until, he says sometime in 2025, when he says he was told about it by a pro bono solicitor. I think the matter may have been mentioned in 2024 in Master Kaye’s judgment. As I have already indicated, Mr Awan was, it was suggested, a litigation solicitor and might have made himself aware of the rule earlier than he say. I am, accordingly, at the very least doubtful that he was not aware of it until 2025.

73. In any event, even if Mr Awan knew about the provision before 2025, the first point to make is that it merely gives the paying party the option to force the receiving party to commence proceeding it does not impose an obligation. So I do not think he could be said to be in breach of any order.

74. Secondly, by way of contrast with the Applicant, there is in my judgment an obligation the part of the paying party to apply for an assessment for reasons which I have explained. At the very least the primary obligation is upon the receiving party to commence detailed assessment proceedings. It would seem to me to be difficult for a receiving party effectively to seek a strike out or dismissal of this application for want of prosecution given their own default. There may be problems with the retainer on the part of the receiving party, which can sometimes explain delay. That would come to light in detailed assessment, That is an unknown – and is a matter of speculation in this case. But I do not think I can ignore the obligation on the part of the Respondents to pursue their own claim,

75. Thirdly, and independent of the reasons I have just given, I cannot ignore the problems that must be faced by litigants having lost proceedings. They may have limited resources available to them, and having to take to steps to force the other side to bring a claim, which obviously that party does not want to have to be face, may be problematic.

76. In short, I am not satisfied delay in making this application was contumelious, such that it would mean that any discretion could not be exercised in the favour, and that the delay can be described as abusive.

77. As I have already indicated, I think it is clear that detailed assessment is not optional. The obligation is upon the receiving party to commence such proceedings. That must in any event weigh, it seems to me, in the balance in favour of the applicant on this point. But it seems to me that I should exercise any discretion in favour even if the receiving parties are right in saying they had an option to commence detailed assessment.

78. I should perhaps deal with a number of other points which arise and which I have considered.

79. Mr Lipson argued that the application was being pursued for an ulterior motive. Relying on what I understand to be the dissenting judgment of the Denning LJ MR, in Goldsmith v Sperrings [1977] 1 WLR 478 I should look at the motive of the Applicant when considered whether the application should be allowed. However the remarks made in that case were specific to their context and do not create any now recognisable legal basis for refusing the application or striking out any claim. It is not normally appropriate to consider an underlying motive for an application where an application, as it is here, is objectively justifiable. Even if one could reasonably suspect that by making this application Mr Awan hoped that he would defer or forestall enforcement, that is not enough. The difficulty is that in considering whether conduct is abusive it is normally for the court to consider whether there is a good motive when objectively looked at the conduct is not abusive. Quite apart from anything, the court generally does not have the means to for a view about this. In this case there is at the very least a reasonable suspicion that Mr Awan might have thought he could defer enforcement of the £118,000. Nevertheless a paying party is normally entitled to see a Bill of costs before agreeing costs and in an appropriate case, to a detailed assessment.

80. There was a further point - again on my prompting - arising from the recent decision of Hill J, Denning Sotomayor Ltd v Western Avenue Properties Ltd [2025] EWHC 1590 (KB). In that case a counterclaim was struck out where the party pursing that claim was held to be “ approbating and reprobating ” the conduct of the claimant but seeking to excuse exactly the same inaction on their own part. I raised the issue as to whether there might be some element of that behaviour here. However, when looking at this more closely it is clear that the circumstances in this case are materially different. There was in that case a delay on the part of a claimant pursuing a claim, and a delay on the part of the defendant pursuing a counterclaim. There were obligations of course to pursue the claim and to pursue the counterclaim and there is an obligation on the parties to pursue their own claim. It is to my mind, quite different here where there is one claim. Indeed the considerations that applied there do not have any obvious application here, where there appears to be, as I have already noted, a self contained code for dealing with delay which puts the obligation on the receiving party to commence detailed assessment proceedings, and gives the paying party merely the option to enforce that.

81. Moreover, it is difficult to see that Mr Awan could be said to be approbating the delay when, albeit on an erroneous basis, he disputed that the interim on account payment could rise an enforceable obligation with, perhaps the corollary that if the costs claim were to be pursued there had to be a detailed assessment.

82. It seems that under CR 47.7 there are difficulties with the paying party complaining about the delay, as it has the ability to bring it to an end. As the Court of Appeal indicated in Haji the scheme worked very well. There would be real difficulty, if Mr Lipson were right if the court had the wide discretion Mr Lipson argued that it did, in determining at what point the delay were such that a court was required to say that was long enough, the interim on account order should stand, and the order for detail assessment is be left lying - as it were - on the record. How would the discretion be exercised? What are the criteria by which it would be exercised? I do not see how the new rules in the CPR, which were intended to overcome problems under the RSC and reduce uncertainty and satellite litigation, could be interpreted do as to give rise to such a general discretion. That seems to be another reason why I should reject the Respondent’s argument.

83. In any event whilst there may well be circumstance in which it is would be appropriate to consider whether a trial or assessment were possible and issues of abuse might arise which might justify refusing an application such as this I am not satisfied that these considerations arise in this case. Thus whilst I have some concern that Mr Awan might have seen this application as a tactic to delay enforcement - that might be an ulterior motive behind it. I do not think that such a concern or suspicion is a sufficient basis for me refuse this application.

84. As I have indicated I there were any problem with detailed assessment they might be mitigated by the Respondents, limiting their bill to the sum ordered by of interim payment. If there really were no grounds to dispute such a claim, there might be prospect that Mr Awan may not serve points of dispute.

85. In any event, having considered all these matters I am satisfied that I should make an order for commencement.

86. I did at one stage raise a query as to whether the costs could be summarily assessed even now. Mr Lipson has not put his case on that basis. It is unrealistic to expect a deputy High Court judge for do a summary assessment eight years after the events in question, or at least there would be considerable difficulties. It cannot go back to a judge who did not deal with the main matter. Unless anybody wants to say anything more about this the order must be for detailed assessment.

87. As things stand I do not see any reason why I should not make an Unless Order with, say, three/three and a half months to prepare the Bill if such time really were required. But I have to say, it is not clear there would be any particular difficulties of doing it by the beginning of January.

88. As to the other matters that have been raised by Mr Awan, whether there should be disallowance under CPR 44.11, he was not pursuing that application now, and I am not minded to deal with that.

89. There is no automatic sanction of strike out imposed for failure to apply within three months. So, it is not a question of the Applicants having to seek relief from such a sanction and I do not think Mr Awan sought to pursue this point. If there were any question of having to seek relief, I think the matters that I have dealt with would point to permitting relief from sanction from a strike out of the claim. It may be that the default in this case was serious, and it may be that there is not really a good reason - albeit the reason may be a misapprehension of the rules, but having regard to all circumstances, it might well be said that relief should be given when Mr Awan has had the ability to make this application beforehand. But I make no finding on this.

90. The question of whether there should be a disallowance of interest rem is normally dealt with at the end in an assessment, I do not think it is open to me on this application to deal with the interest payable on the interim on account order. In any event I am not proposing to deal with that matter now. This Transcript has been approved by the Judge. The Transcription Agency hereby certifies that the above is an accurate and complete recording of the proceedings or part thereof. The Transcription Agency, 24-28 High Street, Hythe, Kent, CT21 5AT Tel: 01303 230038 Email: [email protected]