Loucas Haji-Ioannou & Ors -v- Ioannis Frango & Ors

Where Commencement of Detailed Assessment proceedings had been out of time the Court had discretion to disallow interest and costs. Here Haji-Ioannou had appealed against a Costs Judge’s decision dismissing an application made by Frangos for a proportion of the Claimant’s costs, following a previous Court of Appeal decision, to be disallowed.

Here nevertheless, following an order for costs, Frangos did not commence Detailed Assessment proceedings for a period of 5 years.  A case did not have to exceptional for the actual costs to be reduced on the basis of late commencement as well as interest. Bearing in mind that Detailed Assessment proceedings were commenced 5 years out of time, CPR Rules 44.14 and 47.8 were explored in this judgment. In the original assessment the Costs Judge did not agree that Frangos’ delay should mean a disallowance of a proportion of the costs claimed as there appeared to be an unspoken agreement for Detailed Assessment proceedings to be commenced out of time.

It had been argued that CPR 47.8 actually conflicted with CPR 44.14 (or at least the former was inconsistent with the latter) and clarification was sought. It was argued that the only sanction for late commencement was as to interest not on costs, except in “exceptional circumstances”.

On appeal it was considered that, as neither rule actually referred to “exceptional circumstances”, this was not a necessary condition to be considered. There was no clear unspoken or “tacit” agreement to extend time for service. However, the fact that Frangos had stood up and accepted the penalties as to interest could not be overlooked. The appeal was subsequently dismissed.

Other cases to consider in relation to this subject:

Less -v- Benedict [2005] EWHC 1643 (Ch)

Khan -v- Botham & Lamb [2004] EWHC 2602 (QB)