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Inflexibility in Summary Assessment: R (Isah) v Secretary of State for the Home Department [2023] EWCA Civ 268 - Sebastian Bates, Temple Garden Chambers

15/04/23. On this appeal, the Court of Appeal addressed ‘whether a summary assessment must be undertaken by the judge making the order for summary assessment’: see [1].


As Asplin LJ explained at [2]–[10], the appeal was brought by Mr Isah against a ruling on costs by Linden J. He had ordered that, if their quantum could not be agreed by Mr Isah and the Secretary of State for the Home Departments, then the costs that he had awarded would be summarily assessed by a Master.

Asplin LJ’s starting point was the definition of a summary assessment in CPR 44.1(1), in which this is said to be the procedure whereby costs are assessed by the judge who has heard the case or application: see [11] and [21].

As Asplin LJ recorded at [20] and [29]–[34], in the face of this definition it was pointed out on the Secretary of State’s behalf that CPR 44.6(1)provides that a court ‘may either (a) make a summary assessment of the costs; or (b) order detailed assessment of the costs by a costs officer’. Reference was made to [9.7] of PD 44, which indicates that ‘[i]f a summary assessment of costs is appropriate but the court awarding costs is unable to do so on the day, the court may give directions as to a further hearing before the same judge’.

The overall argument was that the word ‘may’—coupled with ‘the effect of the overriding objective upon the [Civil Procedure] Rules and CPR r 3.1(2)(m)’—meant that courts have...

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