Home Information Cases Less & ors v Benedict (2005)

Skip to content. | Skip to navigation

Navigation
 

Less & ors v Benedict (2005)

Summary

A receiving party's three-year delay in bringing detailed costs assessment proceedings had not constituted a breach of the paying parties right to a hearing within a reasonable time pursuant to the European Convention on Human Rights 1950 Art.6, nor had the delay been abusive so as to merit a sanction under CPR r.44.14. CPR Part 47 provided a mechanism for the paying parties to bring the matter to the attention of the court in order to obtain a hearing within a reasonable time, and therefore it could not be said that they had been deprived of their rights under Art.6 where they failed to take advantage of that mechanism.

Facts

The appellant paying parties (C) appealed against a decision refusing the total or partial disallowance of the bill of costs of the respondent receiving party (D). D had served a notice of commencement of assessment of bill of costs on C following dismissal of C's claim against D and costs order against C. The notice had been served within the time limit specified in CPR r.47.7. However, there had been some confusion as to whether the notice had been properly served on C. As a result, only one of the five paying parties had been aware of D's notice at the time of service. Around three and a half years later, D re-served the notices on C at their last known addresses following a court order intended to eliminate any question about proper service. The court order directed C to serve their points of dispute by a certain date, which C had not complied with as they sought an order for the striking out of D's assessment on the grounds of inordinate delay. C submitted that (1) their right to a hearing within a reasonable time under the European Convention on Human Rights 1950 Art.6 would be breached if the costs assessment was allowed to continue; (2) D's excessive and unreasonable delay without explanation was an abuse of process, and C could not have a fair hearing as they no longer had access to the relevant files; (3) the court should impose a sanction for delay pursuant to CPR r.3.4 and CPR r.44.14; (4) it was inappropriate to order re-service of the notice some three and a half years after its effective date, and such an order amounted to a re-running of the assessment which was not a course open to the master in the exercise of his discretion.

Held

(1) There had been no violation of C's rights under Art.6 of the Convention. CPR Part 47 provided a mechanism for C to bring the matter to the attention of the court in order to obtain a hearing within a reasonable time. If a party failed to take advantage of that mechanism, it could not be said that he had thereby been deprived of his rights under Art.6. The court itself had not been responsible for any delay. Further, it did not follow from the fact that a delay had been a violation of the rights under Art.6 that a subsequent hearing would itself be a further breach of such rights. The court would not, by proceeding to a hearing, be sanctioning a continuance of a breach of those rights, but would be taking remedial action to correct the consequences of the breach. Moreover, if the court were to refuse to hear the instant case on the basis of a prior breach of Art.6, the result would be to deprive D entirely of the benefit of his costs order, which would be a breach of D's own rights under Art.6. A hearing should take place to allow D's rights to be determined thus correcting any alleged breach of Art.6 as a result of the delay. (2) D had given no explanation for the delay because there was no explanation. He had simply failed to proceed with the speed the rules required. However, that did not mean that D had acted in deliberate disregard of the rules or with a view of never bringing the matter to a hearing. At the assessment hearing, the master's finding that the absence of papers on C's side was by no means fatal to a fair hearing was correct since the receiving party's papers were the important ones on an assessment and it was the receiving party who would be likely to lose out by any delay. (3) There was nothing which would justify categorising D's conduct as unreasonable or improper to justify imposing a sanction under CPR r.44.14. (4) The facts of the instant case could be distinguished from Mainwaring v Goldtech Investments Ltd Times, January 19, 1991 where a full detailed assessment had already been carried out, Mainwaring distinguished. The master had acted well within his discretion in ordering re-service in order to allow the detailed assessment to continue.

Appeal dismissed.

Chancery Division
Warren J
Judgment date
25 July 2005
References

LTL 11/8/2005