The Supreme Court Costs Office

No.21 of 2004

Alexander Smolen v Solon Co-Operative Housing Services Ltd
27 October 2004
Mr Justice Pitchers (Sitting with Assessors)

The Defendants succeeded in obtaining a strike out of protracted TCC proceedings brought against them based on the Claimants defaults and as a result became entitled to immediate payment of costs. The bill was quantified at something over £40,000 and was served on the Claimant then acting in person.

When he failed to put in any points of dispute within the requisite period the Defendants' Solicitors obtained a default costs certificate. The Claimant, without putting in points of dispute or a draft thereof, applied to set aside that certificate relying, as far as I can understand, on the arguments made in the course of the underlying proceedings.

The Deputy Costs Judge, unfortunately, had malfunctioning recording equipment, and so there was no transcription of his judgment but a note of his judgment as prepared by counsel was approved by the Deputy Costs Judge. In the judgment he did not consider that it was permissible for him to consider the merits or otherwise of the underlying litigation. He listened patiently for some 2½ hours to the Claimant's submissions (the case had been listed for 20 minutes), but dismissed the application.

Permission to appeal was granted, largely because of the lack of a proper transcript, the notes of counsel for the Defendant and the litigant in person being diametrically opposed as to what had happened before the Deputy Costs Judge. On the appeal the Judge dismissed the Claimant's argument that he should look at the correspondence relating to the attempted agreement of the notes of the Deputy Costs Judge's judgment, holding that the Deputy Costs Judges' preference for counsel's note over that of the Claimant could not be faulted, and complied with the relevant Practice Direction to Part 52 namely 5.12(2), and firmly rejected repeated attempts by the Claimant to resurrect arguments relating to the underlying litigation.

The arguments relating to the underlying litigation did not provide any evidence to suggest that the costs orders made were impeachable, and in the continuing absence of any points of dispute, the Judge held that the Claimant had absolutely no grounds on which the judgment could be overturned, and accordingly dismissed the appeal.