Summary assessment not adjourned pending appeal.

In Axton & Anor v GE Money Mortgages Ltd & Anor [2015] EWHC 1343 (QB) (22 May 2015) the Claimants appealed against an Order made by HHJ Armitage QC in Manchester Crown Court dated the 14th November 2014 when summary judgment was awarded to the Defendants in accordance with CPR 24.2.

Mrs Justice Swift in the High Court found that the test in CPR 24.2 was satisfied and gave summary judgment to the Defendants and dismissed the appeal, upholding HHJ Armitage’s Order.

With regard to costs of the appeal she noted that the Claimants acknowledged that as the unsuccessful parties they were responsible for the Defendants costs but had intimated that they were intending to ask permission for a second appeal and also make application for a stay of the costs order against them, pending the outcome of the further appeal.

The Claimants contended that it would be a more efficient use of the court system if the assessment of the appeal costs could be adjourned until the outcome of the second appeal as they said otherwise if “might ultimately be futile”. The Defendants argued they could not see why summary assessment of the costs could not be dealt with in accordance with normal practice.

Under CPR44 PD9.2 the court makes a summary assessment of costs at the end of a hearing lasting less than a day, which rule is only varied if there is a good reason. Mrs Justice Swift considered waiting for the outcome of an appeal did not “amount to a “good reason” for not following the general rule. If it were, then it would be open to every unsuccessful party to use it as a reason for avoiding summary assessment and to delay the payment of costs”.

She continued that a further point to consider was that the assessment would be conducted by the Judge who presided over the hearing and knew all the facts, fresh in his mind, whereas the assessment could be dealt with differently by another Judge if the original assessment was adjourned and the appeal unsuccessful.

Mrs Justice Swift further looked at what the effect of a delay in summary assessment would involve and noted this would lead to a stay of the assessment of costs. She referred to CPR52.7 which provides “Unless – the appeal court or the lower court orders otherwise … an appeal shall not operate as a stay of any order or decision of the lower court”. She continued that “The relevant authorities make clear that the grant of a stay is an exceptional remedy”.

Mrs Justice Swift further noted that there was no formal application or grounds for why a stay should be given before her for consideration. She thought it would be more appropriate for that decision to be taken by the Court of Appeal as she could not assume that they would grant a stay and therefore she decided to proceed to summarily assess the costs of the appeal.

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