Ikin v Shawbrook Bank Ltd [2023] EWHC 1075 (Costs)

Posted 9 May 2023

Applications in Detailed Assessment proceedings to disallow costs for misconduct under CPR 44.11 are not common. They usually require evidence and cross examination in order to establish whether conduct by a legal representative has been “unreasonable” or “improper” such as to justify a sanction proportionate to the misconduct found- see Gempride v Bamrah [2018] 3 Costs LR 637. As such, CPR 44.11 applications are expensive and with the burden of proof lying on the party alleging the misconduct, it is little wonder that Bamrah is the only reported authority where detailed assessment proceedings are concerned. Until now!

In Ikin v Shawbrook Bank Ltd [2023] EWHC 1075 (Costs) (5 May 2023), the Senior Costs judge applied the principles in Bamrah when disallowing 40% of the receiving party’s assessed costs and directing that they pay 75% of the paying defendant’s costs of the assessment on the indemnity basis. Having heard oral evidence, he found that there had been discrepancies in counsel’s fees, that there were valid concerns about an expert who had claimed VAT when he was not registered and had failed to produce receipted invoices, and that complaints about the profit costs claimed, were justified. He continued that the bills were  :-

“…intentionally misleading in that time was claimed for work which was not done (and for which there was nothing that could lead to a reasonable inference that it had been done)… “

Whilst the bills had been certified for accuracy, had that checking been done sufficiently, the solicitors  would have known that they contained entries for which there was no basis on the files. In doing so, the solicitors had acted both improperly and unreasonably, meriting a disallowance which reduced the bills of £57,841 by an additional £21,136, with 75% of the defendant’s costs of the assessment to be paid on the indemnity basis.