Factual and Procedural Background
The Plaintiff, a tenant, brought proceedings against the Defendant in the County Court, which were compromised by a consent order on 6 October 2022 providing that the Defendant would pay the Plaintiff's costs, to be assessed if not agreed. On 16 November 2022 the Plaintiff served a notice of commencement of detailed assessment and a bill of costs totalling £26,809.60. The bill was signed by an attorney from Company A but did not tick the box certifying that "[in respect of parts
of the bill] the costs claimed herein do not exceed the costs which the receiving party is liable to pay to me/my firm" (the indemnity principle certification); the attorney did certify accuracy.
The Defendant failed to file points of dispute within 21 days, and the Plaintiff obtained a default costs certificate on 9 January 2023. The Defendant applied on 18 May 2023 to set aside the certificate as of right under CPR 47.12(1), asserting (1) invalid service of the notice of commencement and bill by email and (2) invalidity of the bill for failure to certify compliance with the indemnity principle; alternatively the Defendant sought discretionary setting aside under CPR 47.12(2).
A District Judge set aside the certificate on service grounds after declining to hear the Plaintiff's representative. On appeal, Judge [Last Name] (hearing the Plaintiff's appeal) allowed the appeal on 29 November 2024, finding service valid and recording that the Defendant had accepted below that defects in a bill do not render the detailed assessment process a nullity. Judge [Last Name] remitted the Defendant's discretionary application under CPR 47.12(2) to another district judge. Permission to appeal that order was granted by Judge [Last Name] on 12 May 2025, subject to whether the Defendant could raise the new point (the indemnity-certification point) despite having conceded it below.
Legal Issues Presented
- Whether a bill of costs is invalid (and ineffective to commence a detailed assessment under CPR 47.6) where the bill is signed by a solicitor but the solicitor does not expressly certify that the costs comply with the indemnity principle.
- Whether the Defendant may, on appeal, withdraw a concession made below and advance the indemnity-certification point for the first time.
Arguments of the Parties
Plaintiff's Arguments
- The Plaintiff argued that the indemnity-certification box was not essential to the validity of the bill because the solicitor's signature itself constitutes an implicit certification that the indemnity principle is complied with.
- The Plaintiff relied on precedents establishing the solicitor's signature as a certification and on CPR 3.10 to argue that procedural errors in form do not automatically invalidate proceedings and can be remedied by the court.
- The Plaintiff submitted it was prepared to meet the pure point of law and would not be prejudiced beyond costs, so the Defendant should be permitted to withdraw its concession.
Defendant's Arguments
- Attorney [Last Name] for the Defendant submitted that the mandatory certificate confirming compliance with the indemnity principle is of special importance and that omission of that certificate renders the bill invalid and ineffective to commence detailed assessment.
- The Defendant relied on authorities emphasising the indemnity principle as fundamental to costs law and sought to treat failure to provide the certification as a nullity-inducing defect.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Pittalis v Grant [1989] 1 QB 605 |
Used regarding prejudice and allowing a party to raise a point on appeal where prejudice can be compensated in costs. |
The court relied on this authority to permit the Defendant to withdraw its concession and raise the new legal point because the Plaintiff was not prejudiced in a way not compensable by costs. |
| General of Berne Insurance Company v Jardine Reinsurance Management Limited [1998] 2 All ER 301 |
Statement of the indemnity principle: that an order for costs is intended to provide no more than an indemnity. |
The court cited this case (and Gundry v Sainsbury) to explain the fundamental nature of the indemnity principle but did not accept that it required that omission of an express certificate render a bill invalid. |
| Gundry v Sainsbury [1910] 1 KB 645 |
Foundational authority for the indemnity principle in costs law. |
Referenced as part of the authority establishing the indemnity principle; used to contextualise the Defendant's submission but not to support nullity of the bill. |
| Bailey v IBC Vehicles Ltd [1998] 2 Costs LR 46 |
Explains the trust placed in a solicitor's signature on a bill of costs and that supporting documents need not be supplied in the first instance; the signature operates as a certification. |
The court held that Bailey supported the proposition that the solicitor's signature is itself confirmation of compliance with the indemnity principle, and therefore absence of the separate certification box is not fatal to the bill's validity. |
| Gempride Ltd v Bamrah [2018] EWCA Civ 1367 |
Reiteration that a solicitor's signature certifies that the bill's contents (including hourly rates) are correct and that the paying party is generally bound by that certificate absent circumstances raising suspicion. |
The court relied on Gempride to reinforce that the signature functions as implicit certification and that, normally, a paying party cannot go behind that certificate. |
| Choudhury v Islam (Central London County Court, unreported 21 April 2021) |
Analysis that a defective bill should not be treated as a nullity and that CPR 3.10 permits remedying procedural errors; points of dispute are the proper vehicle to raise defects. |
The court endorsed HH Judge Lethem's analysis and applied it to conclude that omission of the indemnity-certification box is a defect not warranting treating the bill as invalid from the outset. |
| Barking, Havering & Redbridge University Hospitals NHS Trust v AKC [2021] EWHC 2607 (QB) and [2022] Costs LR 1095 |
Cases in which bills were struck out for certain defects; considered in argument as authority for stricter consequences for defects. |
The court distinguished these authorities, noting they resulted in striking out and ordering replacement bills, and did not establish that defective bills are automatically nullities. |
Court's Reasoning and Analysis
The court identified the substantive legal issue as whether omission of the express indemnity-certification box renders a bill invalid. It treated the point as a pure question of law and permitted the Defendant to withdraw its concession and raise the point on appeal because the Plaintiff was prepared to meet it and suffered no irremediable prejudice (Pittalis v Grant).
The court analysed the statutory and Practice Direction framework (CPR 47 and Practice Direction 47), noting that paragraph 5.21 requires inclusion of the certificates in Precedent F and that many provisions are expressed in mandatory terms. However, the court emphasised established authorities (notably Bailey and Gempride) that a solicitor's signature functions as a certification that the bill complies with the indemnity principle by virtue of the solicitor's position of trust.
Applying that authority, the court concluded that while the express certificate is a mandatory feature of the prescribed form, omission of the express certification is a defect rather than a nullity. The court further relied on CPR 3.10 and the reasoning in Choudhury v Islam to explain that procedural errors do not automatically invalidate steps in proceedings and that the points of dispute mechanism is the appropriate vehicle for challenging defects in a bill. The court distinguished cases where bills were struck out and ordered replacement as addressing different remedies rather than establishing that defective bills are void from inception.
On that basis the court found the Plaintiff's bill valid and effective to commence detailed assessment; the Defendant's failure to serve points of dispute entitled the Plaintiff to a default costs certificate. The court left open the Defendant's alternative discretionary application under CPR 47.12(2) to be considered by a different district judge.
Holding and Implications
APPEAL DISMISSED
Holding: The court held that the omission of an express certificate confirming compliance with the indemnity principle, where the bill is signed by a solicitor, does not render the bill invalid or ineffective to commence detailed assessment; the solicitor's signature operates as an implicit certification.
Implications: The direct effect is that the Plaintiff's bill of costs was valid and the default costs certificate obtained when the Defendant failed to file points of dispute stands. The Defendant remains entitled to pursue a discretionary application under CPR 47.12(2) to dispute the bill; the opinion did not purport to create a new precedent overriding existing authorities and treated the omission as a curable defect rather than a nullity.