Kerry Underwood


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Leading Counsel’s Fees Can Still Be Recovered, Even If Not Approved


Easteye Ltd v Malhotra Property Investments Ltd and others [2019] EWHC 2820 (Ch)

the Chancery Division of the High Court held that the statement by the Deputy District Judge in a costs management decision, where there had been no oral hearing, that:

“£120,000 is allowed in respect of the Claimant’s trial phase and instruction of leading Counsel is not approved”

was adequate so as to satisfy the test in

English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605

“It is not, in general, conducive to the efficient and cost-effective dispatch of costs management decisions if every part of those decisions has to be justified with extensive reasons like a judgment after trial” (Paragraph 34).

It was clear that the judge had preferred the defendant’s submission to those of the claimant and that was sufficient.

Furthermore, such an order did not prevent the claimant from recovering costs in relation to leading counsel.


“27.  In this case, the total budget fixed by Deputy District Judge Pescod was £120,000 for the claimant’s trial phase and it is up to the claimant whether it spends all of that on junior counsel, or spends some of it on junior counsel and some on leading counsel, or indeed spends all of it on leading counsel. If they succeed in obtaining a costs order, they can expect to receive £120,000 for the trial phase. It would be possible to depart from the budgeted amount only if good reason is shown. So I do not regard that, in itself, as being a flaw in the Deputy District Judge’s order. Rather, I agree with Mr Pryor. The words which the Deputy District Judge has added to paragraph 5(iv) in his order are not intended to limit recoverability below the £120,000 so that nothing could be recovered in respect of leading counsel, but are intended to explain why the figure of £120,000 has been approved rather than the higher figure sought of £210,000; and that is because the Deputy District Judge was not satisfied it was appropriate to employ leading counsel.

Written by kerryunderwood

November 26, 2019 at 7:34 am

Posted in Uncategorized

2 Responses

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  1. This is a common mistake made by judges. If someone is being asked to pay £120,000 then they have the right to ask why, what for, and how the figure was arrived at.


    November 26, 2019 at 9:04 am

    • I agree. In many ways costs budgeting has led to less scrutiny of between the parties’ bills – the budgeted amount is just nodded through on assessment. Compare and contrast with solicitor and own client detailed assessments under the Solicitors Act 1974.



      November 27, 2019 at 11:04 am

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