The Supreme Court Costs Office

No. 19 of 2005

Dennis Rye v The Liquidator of Ashfield Nominees

23 March 2005

Peter Smith J (Without Assessors)

When a detailed assessment with a projected hearing date of three days came before the Costs Judge in November 2004 leading Counsel on behalf of the defendant sought leave to amend points of dispute to raise a totally new point. The Costs Judge agreed to that course on the basis that the defendant should pay the costs and occasioned and thrown away by the inevitable adjournment and those costs were duly paid. When the matter came before the Costs Judge some months later a different QC representing the defendant sought leave to raise yet another totally new point which again would necessitate amendment to the points of dispute. On this occasion the Costs Judge refused permission to make the amendment due to the history of the matter and the defendant appealed.

In his Judgment, the Judge held that the Costs Judge had been in error in refusing permission to amend saying that the practice set out in CPR 17.3.2 was applicable by analogy and absent any proof of prejudice to the claimant which could not be compensated for in costs (which was not present in this case), the Costs Judge should have granted permission to make the necessary amendment, late though it was.

The amendment involved a technical point of construction on insolvency rules and the Judge thereafter acceded to the request of the claimant’s advocate that as it was a straightforward point of law and construction it was preferable for the Judge to make a decision there and then rather than remitting it to the Costs Judge. This the Judge duly did finding in favour of the claimant so that in fact the defendant’s appeal was dismissed on that basis, with the defendant being ordered to pay 80% of the costs of the appeal.