Dr Robert Lambert-Simpson -v- Health and Care Professions Council

The appellant appealed a decision by his regulatory body to suspend him from practicing for 4 months. However, Mr Justice Fordham dismissed the appeal, and the appellant was ordered to pay the respondent’s costs of the appeal, with such costs to be subject to detailed assessment, if not agreed. Phoenix legal services were instructed to recover costs by the respondent’s solicitor’s, Blake Morgan.

During the course of the substantive proceedings, the appellant emigrated to Australia and refused to give an updated address. He communicated intermittently by email. Knowing that there may be issues with service, detailed assessment proceedings were served to the UK address (being the last known residence in accordance with CPR Part 6) and copies were provided to the appellant’s email address.

The appellant responded by email, stating that he no longer lived in the UK and “cannot and will not be paying this amount”. The respondent allowed an extension of 21 days in order for the appellant to prepare and serve points of dispute (PODS). The appellant failed to serve the PODS on time and therefore, Phoenix legal services filed a request for a default costs certificate (DCC), which was granted.

The appellant filed an application to set aside the DCC. The application notice included a different UK address for service than the previous UK address that the appellant used.

Litigators will be familiar with an application for relief from sanction under CPR 3.9 and the Denton test, but there are specific rules about applying to set aside a DCC, contained at CPR 47.12 and the accompanying PD. These rules make very clear that, in order for the application to be successful, an applicant must:

• Provide supporting evidence with the application.
• Show a good reason why the detailed assessment proceedings should continue.
• File with the application a copy of the bill, a copy of the DCC and a draft of the PODS the applicant proposes to serve if the application is granted.

Our lead advocate and director of costs, Dean O’Connor, hammered home that the application failed to comply with these requirements and thus it should be dismissed at the first hurdle, regardless of any other arguments.

Deputy Costs Judge Joseph at the Senior Courts Costs Office was satisfied that, despite the appellants attempts to avoid service, detailed assessment proceedings had been validly served and the respondent was fully entitled to have applied for the DCC. He agreed that the application had failed to comply with CPR 47 PD 11.2 and dismissed it.  In addition to having to pay the DCC in full, the appellant was ordered to pay the costs of the application in full too.

This was a painful lesson for the appellant. His attempts to run away from the orders were unsuccessful and this was compounded by him failing to apply the correct rules for the specific type of application he made. Unfortunately, there remains too many parties who do not take specialist costs advice when it comes to detailed assessment proceedings. Had the respondent done so, he could well have had a different result.