Isah, R (On the Application Of) v Secretary of State for the Home Department

Factual and Procedural Background

This appeal concerns whether a judge may order costs to be summarily assessed by a different judge in another court, or whether the summary assessment must be undertaken by the judge who made the order for summary assessment. The issue arose from a detailed assessment of the Appellant's costs in a successful claim for damages for unlawful detention against the Respondent, the Secretary of State for the Home Department (SSHD). Master Brown assessed the costs and made no order as to costs of the assessment process itself. The Appellant was granted permission to appeal aspects of this order. The SSHD made a Part 36 offer and applied for determination of the appeal costs. The remaining appeal issues before Linden J related to costs of the appeal and directions for their quantum, including the costs of the SSHD’s application. Linden J issued an order providing for costs payments between the parties and directed that summary assessment of certain costs, if not agreed, be conducted by a Master in the Senior Courts Costs Office, with directions for filing schedules and listing a video hearing. Permission to appeal was granted regarding the summary assessment issue and the directions given.

Legal Issues Presented

1. Whether a judge is permitted to order costs to be summarily assessed by a different judge or Master in a different court rather than by the judge who made the order for summary assessment.
2. If such a power exists, whether the directions given for the hearing of the summary assessment by a Master in the Senior Courts Costs Office were appropriate.

Arguments of the Parties

Appellant's Arguments

• Summary assessment is a rough and ready process that must be conducted by the judge who heard the matter, as per the definition in CPR r 44.1.
• The judge who heard the case has the relevant knowledge to make the assessment, which might lead to injustice if conducted by another judge unfamiliar with the case.
• CPR r 44.6 provides a binary choice: either the court makes a summary assessment or orders a detailed assessment by a costs officer.
• The judge has three options: make summary assessment immediately, adjourn and deal with it later personally, or order detailed assessment by a costs officer.
• Practice Direction 44 supports that if the court cannot assess costs on the day, directions for a further hearing must be before the same judge.

Respondent's Arguments

• The court has case management discretion to decide that summary assessment may be conducted by another judge at a later date.
• This discretion is supported by the permissive use of "may" in CPR r 44.6(1) and Practice Direction 44 paragraph 9.7.
• The overriding objective and CPR r 3.1(2)(m) support flexibility in managing cases justly and proportionately.
• Relied on the reasoning in Transformers and Rectifiers Ltd v Needs Ltd where a different judge summarily assessed costs made by another judge.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the definitions in CPR r 44.1, which unambiguously define "summary assessment" as an assessment conducted by the judge who heard the case, contrasting it with "detailed assessment" carried out by a costs officer. CPR r 44.6(1) offers two alternatives: the court may either make a summary assessment or order a detailed assessment, with no provision for a summary assessment by a costs officer or another judge.

The court rejected the Respondent’s argument that the permissive "may" in CPR r 44.6(1) and Practice Direction 44 paragraph 9.7 grants a case management discretion to permit summary assessment by a different judge. The court held that the "may" refers to the choice between summary or detailed assessment, not to who conducts the summary assessment. The Practice Direction’s wording that the court "may give directions as to a further hearing before the same judge" was interpreted as permitting procedural directions but not permitting a different judge to conduct the summary assessment.

The court distinguished the reasoning in Transformers and Rectifiers Ltd v Needs Ltd, finding that the decision did not consider the CPR r 44.1 definition and that its conclusion conflicted with the current CPR and Practice Direction. The court reaffirmed the principle from Mahmood that only the judge who heard the case is in a position to make a summary assessment.

While acknowledging that there may be practical circumstances where another judge could carry out a summary assessment justly and proportionately (e.g., unavailability of the original judge), the court emphasized that the current CPR rules do not permit this and suggested that it is a matter for the Rules Committee to consider.

Accordingly, the court allowed the appeal, ruling that the summary assessment must be conducted by the judge who heard the case and remitted the matter accordingly. The directions issue was therefore not addressed.

Holding and Implications

The court’s final decision was to ALLOW THE APPEAL on the summary assessment issue.

The summary assessment of costs must be conducted by the judge who heard the matter, either immediately or at a later time, and not by a different judge or costs officer. The court remitted the summary assessment to the original judge to carry out at a convenient time. No order was made for costs of the appeal except as to a specific previous application. This decision clarifies that the current CPR and Practice Direction do not permit summary assessment by a judge other than the one who conducted the hearing, reinforcing procedural consistency and adherence to the definitions within the Rules. The court noted that no new precedent was set beyond the interpretation of existing rules and suggested that any change to allow flexibility would require amendment by the Rules Committee.