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.
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.
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.