References:  3 All ER 779,  EW Costs 16,  EWHC 9017 (Costs)
Coram: Mr Justice Pumfrey sitting with Assessors
With respect to privileged material produced to the Costs Judge, once a document is of sufficient importance to be taken into account in arriving at a conclusion as to recoverability, then, unless otherwise agreed, it must be shown to the paying party or the receiving party must content himself with other evidence. If the costs judge has seen documents and required the receiving party to elect between giving secondary evidence of the retainer and waiving the privilege, there was no incompatibility with the Convention. This does not mean the costs judge may put the receiving party to its election for every document, regardless of relevance. The paying party may be content to agree that the costs judge alone should see the privileged documents. Only where it is necessary and proportionate should the receiving party be put to his election. The redaction and production of privileged documents, or the adducing of further evidence, will lead to additional delay and increased costs.
CourtService The court considered the impact on detailed assessment proceedings of the European Convention on Human Rights, with particular relevance to the disclosure to the paying party of sensitive material relating to their bill of costs to which privilege attached. The European cases did not override the longstanding principle of privilege in English law, but the principle that a court should not decide issues after hearing and seeing only one side of the argument was a very powerful one. He indicated that much greater use should be made of Costs Judges and District Judges of paragraph 40.14 of the Costs Practice Direction in relation to the putting of receiving parties to their election as to how they proved particular issues of this nature.
However, on the facts, and because the Costs Judge from whom the appeal was brought had clearly considered all the relevant factors in coming to his decision that there had been no breach of the indemnity principle on the evidence available to him, the Judge dismissed the appeal, saying that to do otherwise would be to generate unfortunate and unnecessary satellite litigation.
This case is cited by:
- Approved – Hollins v Russell etc CA (Bailii,  EWCA Civ 718, Times 10-Jun-03, Gazette 17-Jul-03,  1 WLR 2487)
Six appeals concerned a number of aspects of the new Conditional Fee Agreement.
Held: It should be normal for a CFA, redacted as necessary, to be disclosed for costs proceedings where a success fee is claimed. If a party seeks to rely on the . .
Last Update: 01-Oct-15 Ref: 182521