Kerry Underwood


with 2 comments

This piece appears in Issue 21 of Kerry On Costs and So Much More…, a fortnightly publication costing £500 a year plus VAT, but available for the rest of 2021, including back issues, for £200 plus VAT here.


Axnoller Events Ltd v Brake & Anor [2021] EWHC 2362 (Ch) (23 August 2021)

the Chancery Division of the High Court, with a Judge sitting as a High Court Judge, that is not as a Costs Officer, stated that the new Guideline Hourly Rates, which do not come into effect until 1 October 2021, should be used now, including for work already done.

I accept that the 2010 summary assessment guidelines are now well out of date. In a case like this, I would simply put them on one side as of little assistance. Although they are strictly speaking not yet in force, the new 2021 guidelines (which have been approved by the Master of the Rolls) have already been used in summary assessment in the High Court: see eg ECU Group plc v Deutsche Bank [2021] EWHC 2083 (Ch), [25]. I consider that I should take these guidelines into account.”

Practical Tip

If the receiving party, rely on this case.

If the paying party, point out that this is effectively retrospective legislation, and that the Master of the Rolls has chosen to implement the new Guideline Hourly Rates from 1 October 2021, and has not made them retrospective.

Written by kerryunderwood

September 3, 2021 at 11:23 am

Posted in Uncategorized

2 Responses

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  1. But are the Guideline Rates (and the Guide to the Summary Assessment of Costs) legislation? Surely the relevant legislation is to be found, for example, in CPR 44.4. Consideration of the factors enumerated there would enable the costs judge to apply rates similar to, or above, the new Guideline rates on the basis that they were simply the appropriate rates in all the circumstances. There would be nothing of retrospectivity about that (beyond the retrospectivity that is inevitable in any detailed assessment).

    Peter Burdge

    September 3, 2021 at 11:31 am

  2. Not legislation, but approved by Master of the Rolls, so no prizes as to what approach the Court of Appeal will take once a case reaches it. You are correct that under the CPR the courts have almost unlimited discretion in relation to costs.
    There is a degree of retrospectivity in the sense that in a case liable to summary assessment parties will have been litigating on the basis of existing Guideline Hourly Rates, or something near them, which is no doubt why the new ones are stated to be effective from 1 October 2021.


    September 4, 2021 at 11:06 am

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