Appeals

Costs appeals are different from ordinary costs arguments. A party who is disappointed by a costs order, a detailed assessment decision, a budget decision, a Part 36 consequence, or a ruling on indemnity costs may feel that the result is wrong. That is not enough.

An appeal requires a proper basis. The court will usually be concerned with whether the judge made an error of principle, took into account irrelevant matters, failed to take into account relevant matters, reached a conclusion outside the proper ambit of discretion, gave inadequate reasons, acted unfairly, or misunderstood the applicable law.

Costs decisions often involve discretion and evaluation. That does not make them immune from appeal. But it does mean that an appeal needs to be framed with discipline.

I advise and appear in costs appeals, including appeals from costs orders, detailed assessment decisions, solicitor and own client assessments, non-party costs orders, wasted costs orders, budgeting decisions, Part 36 costs consequences and consequential costs orders.

Why costs appeals matter

A costs appeal may matter for several reasons.

Sometimes the sum at stake is large. Sometimes the point affects the commercial value of the litigation. Sometimes the costs order alters the practical result of the case. Sometimes the decision raises a wider point of principle. Sometimes the appeal is needed to correct an error which, if left undisturbed, will have consequences beyond the immediate amount in dispute.

But not every bad costs result should be appealed.

The first question is not “do we disagree?” The first question is “what is the appealable error?” The second is “is the appeal commercially worth bringing?” The third is “what is the best outcome realistically available?”

I advise on all three.

When I am instructed

I am commonly instructed in appeals involving:

  • Costs orders after trial;
  • Consequentials hearings;
  • Indemnity costs;
  • Standard basis costs;
  • Issue-based costs orders;
  • Costs reserved, costs in the case and costs thrown away;
  • Part 36 costs consequences;
  • Payments on account of costs;
  • Interest on costs;
  • Costs budgeting and costs management;
  • Relief from sanctions in costs contexts;
  • Detailed assessment decisions;
  • Solicitor and own client assessments;
  • Retainers, CFAs and DBAs;
  • Non-party costs orders;
  • Wasted costs orders;
  • Security for costs;
  • QOCS;
  • Costs in group litigation and collective proceedings;
  • Appeals from the SCCO, County Court, High Court and Court of Appeal.

These appeals may arise from an interim decision, a final order, a detailed assessment, a preliminary issue, or a post-judgment consequentials hearing.

Advice before appealing

The most important stage of a costs appeal is often the first advice.

A disappointed party may feel that the judge was wrong, unfair, too generous, too harsh, or insufficiently engaged with the real point. The task is to translate that reaction into a legally sustainable ground of appeal, or to advise frankly that there is no proper appeal.

I advise on:

  • Whether there is an appealable error;
  • The prospects of obtaining permission;
  • The commercial value of the appeal;
  • The likely costs of appealing;
  • Whether a narrower appeal would be stronger;
  • Whether reconsideration, variation or clarification is possible;
  • Whether the point should be preserved for a later stage;
  • Whether the appeal risks making the position worse.

A costs appeal should not be an emotional continuation of the litigation. It should be a disciplined challenge to an identifiable error.

Grounds of appeal

Costs appeals often fail because they are framed as submissions rather than grounds.

A ground of appeal should not simply say that the judge gave too much weight to one factor, too little weight to another, or reached a result which the appellant dislikes. It should identify the error.

The error may be that the judge:

  • Applied the wrong legal test;
  • Failed to exercise the discretion at all;
  • Treated discretion as constrained when it was not;
  • Took account of an irrelevant factor;
  • Failed to take account of a relevant factor;
  • Reached a conclusion outside the proper range;
  • Gave inadequate reasons;
  • Acted in a procedurally unfair way;
  • Misunderstood the effect of an order, offer, budget or bill;
  • Failed to address a material argument.

I draft and advise on grounds of appeal in costs cases, including cases where the challenge is narrow but commercially important.

Permission to appeal

Permission is often the real battleground.

The application needs to show that the appeal has a real prospect of success or that there is some other compelling reason for it to be heard. In costs cases, that usually requires sharp identification of the error and a concise explanation of why the appellate court should interfere.

The court is unlikely to be assisted by a reheated version of the costs submissions below. The permission application must show why the decision was wrong in an appellate sense.

I advise on permission applications, respondent’s notices, skeleton arguments and the tactical presentation of costs appeals at the permission stage.

Appeals from consequentials hearings

Consequentials hearings can produce important costs decisions. The court may decide the basis of assessment, whether to make an issue-based costs order, whether to award indemnity costs, whether to order a payment on account, what interest should run, and whether permission to appeal should be granted.

These decisions may substantially alter the commercial result of the case.

I advise and appear in appeals arising from consequentials hearings, including challenges to indemnity costs, issue-based orders, percentage costs orders, payments on account and interest.

The key question is usually whether the judge’s order was within the proper range of costs discretion. If it was, an appeal may be difficult. If the judge misunderstood the result, applied the wrong approach, or failed to explain the order, an appeal may be justified.

Part 36 appeals

Part 36 can produce severe costs consequences. A decision about whether those consequences should apply may have a major financial effect.

Appeals may arise where the court has misunderstood the offer, misapplied the rules, failed to consider injustice, wrongly treated an offer as effective or ineffective, or reached a conclusion which does not reflect the true outcome of the litigation.

I advise on appeals involving Part 36 and other settlement offers, including cases where the dispute concerns indemnity costs, enhanced interest, additional amounts, payments on account, or whether it would be unjust to apply the usual consequences.

Part 36 appeals require particular care because the rules are technical, but the outcome is often driven by practical fairness.

Detailed assessment appeals

Detailed assessment appeals may concern hourly rates, proportionality, reasonableness, retainers, success fees, counsel’s fees, expert fees, budgeting, issue-based reductions, points of principle, or the procedure adopted by the costs judge.

The challenge must identify more than ordinary disagreement with assessment judgment. The appellant will usually need to show an error of law, an error of principle, procedural unfairness, inadequate reasons, or a conclusion which cannot properly stand.

I advise and appear in appeals from detailed assessment decisions, including appeals from the SCCO and County Court.

Solicitor and own client appeals

Appeals in solicitor and own client disputes may involve retainer enforceability, the validity of bills, limitation, special circumstances, estimates, informed consent, deductions from damages, CFAs, DBAs, contentious business agreements and the court’s jurisdiction under the Solicitors Act 1974.

These appeals are often technical and document-heavy. The outcome may turn on the bill, the retainer, the timing of delivery, the client care documents, or the way the preliminary issue was framed.

I advise on appeals in solicitor and own client costs disputes, acting both for solicitors and clients.

Non-party and wasted costs appeals

Appeals from non-party costs orders and wasted costs orders require particular care.

Both types of order may be serious. Both may involve discretion. Both may be highly fact-sensitive. But both may also be vulnerable where the judge applied the wrong test, failed to identify the relevant conduct, failed to address causation, gave inadequate reasons, acted unfairly, or made an order outside the proper scope of the jurisdiction.

I advise both applicants and respondents on appeals involving non-party costs and wasted costs.

Budgeting and costs management appeals

Costs budgeting decisions can affect the whole shape of litigation. A budget set too low may restrict recovery. A budget set too high may impose unfair pressure. A refusal to revise a budget may cause serious prejudice.

Appeals from budgeting decisions are not easy, because costs management involves discretion and case management judgment. But an appeal may be justified where the court has misunderstood the rules, failed to consider a material change, acted unfairly, or reached a decision which cannot properly be supported.

I advise on appeals and reviews arising from costs budgeting and costs management decisions.

Acting for respondents

A respondent to a costs appeal should not assume that the decision below will defend itself.

The respondent’s task is to show why the decision was open to the judge, why the appellant is merely disagreeing with an exercise of discretion, why any error was immaterial, or why the order should be upheld for other reasons.

In some cases, a respondent’s notice may be needed. In others, the best strategy is to defend the decision narrowly and avoid overcomplicating the appeal.

I advise respondents on resisting costs appeals, including permission responses, respondent’s notices and skeleton arguments.

Commercial judgment

A costs appeal may be legally arguable but commercially unwise.

The amount at stake, the prospects of success, the cost of appeal, the risk of further adverse costs, the effect on settlement, the client’s wider commercial interests and the reputational or precedential value of the point all matter.

I advise not only on whether an appeal can be brought, but whether it should be brought.

Sometimes the correct advice is to appeal. Sometimes it is to let the point go. That judgment is part of the value of specialist costs advice.

Who I act for

I am instructed by solicitors, insurers, litigation funders, commercial parties, costs lawyers, professional liability teams, claimants, defendants, solicitors defending bills, clients challenging bills, and non-parties affected by costs orders.

I act for both appellants and respondents. That dual perspective is important. A good appeal is drafted with the answer already in mind.

What to send when instructing me

When seeking advice on a costs appeal, it is helpful to send:

  • The order under appeal;
  • The judgment or reasons;
  • Any approved transcript or note of judgment;
  • The application notice or points argued below;
  • The skeleton arguments or written submissions below;
  • Any relevant costs budget, bill, schedule or statement of costs;
  • Any Part 36 or Calderbank offers;
  • Any retainer, CFA, DBA or funding agreement, if relevant;
  • The sealed order date;
  • The deadline for permission or appeal;
  • Any existing draft grounds;
  • The amount at stake;
  • A short note explaining why the decision is said to be wrong.

The appeal deadline is critical. Please identify it clearly when sending papers.

Instructing me

I am often instructed where a costs decision has materially affected the commercial outcome of litigation, or where a party needs urgent advice on whether there is a proper appeal.

Costs appeals require speed, clarity and discipline. The strongest appeals usually identify one or two real errors, not a long list of grievances.

For availability, fee arrangements and urgent enquiries, please contact my clerks at Hailsham Chambers.

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