This is an application for a review by a judge of the learned Registrar’s cost decision. The application is brought under Ord. 62 r.35 which provides: (1) Any party who is dissatisfied with any decision of the Registrar on a taxation may apply to a judge for an order to review that decision either in whole or in part. The summons is brought based on principle, on the following grounds:
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- To disallow costs for an ex parte skeleton argument in support of leave on the basis that there were no directions given for a skeleton argument, is to overlook the fact that at that time proceedings had not started. No directions could have been given.
- As requested on the face of the leave application itself and the skeleton argument in respect of which costs were disallowed (see above), the application for leave was decided on the papers without a hearing. That being permissible under O.53, r.3(3). The subject skeleton argument that is, in support of ex parte application was evidently of assistance to the Court.
- The practical effect of allowing no costs recovery at all – not one $1 (sic) – for the skeleton argument can only be to discourage use of same, therefore limiting assistance to the Court that would otherwise be available. The further effect of that is the increased likelihood of the need for an oral hearing. Thus, occupying more court time and judicial resources. Akin to the decommissioning of the Concorde jet, respectfully the disallowance is a retrograde step.
The summons concludes: The Applicant is content for the quantum of such costs to be remitted to the Registrar for determination if applicable. It is, instead, the wider point of general impact for the Legal Profession in respect of which review is sought.
The Background of the taxation is that on or around 19 November 2015 the Applicant submitted an application for naturalisation. That application did not progress and on 9 January 2023, a letter before action was written to the then Governor. No reply to the letter before action was received and on 12 June 2023 the applicant applied for leave to move for judicial review. The application was accompanied by an 8-page affidavit from the Applicant together with: 31 pages of exhibits; 396 pages of authorities; and a 26-page skeleton argument.
On 10 July 2023 I granted leave to move for judicial review the order being perfected on 11 July 2023. The above documents were served on 12 July 2023. The Applicant was naturalised on 28 July 2023. Accordingly, the Court was not moved to hear the judicial review, indeed no Notice of Motion was filed. On 11 August 2023, I granted an order discontinuing the proceedings and provided for the Respondents to pay the Applicant’s costs of and incidental to the proceedings, to be taxed on the standard basis if not agreed. The Applicant submitted a bill of costs claiming some US$17,114.50. On 19 April 2024, the learned Registrar issued a Certificate of Taxation in the sum of US$5,558.00.
The review of the learned Registrar’s decision is made with respect to the disallowance of the sum of US$1,804.00 concerning 4 time entries (numbered items 7, 17, 18 and 31 in the bill of costs) in connection with the preparation of the skeleton argument, although, Mr Prudhoe’s skeleton argument on the review states that the amount claimed was $2,344.00.
Held: In my judgment it is a matter for the taxing officer to consider any pre-action costs, then to consider if what has been done was relevant to the consequential proceedings and then to go on to consider if the costs have been reasonably incurred. If so, there must be a consideration of whether the costs claimed are reasonable. The argument put forward on behalf of the Respondents is that a skeleton argument was simply not necessary, with which the learned Registrar agreed.
Whilst some of the skeleton argument may have been of use at the substantive hearing, depending on the position adopted by the first Respondent, I am not of the view that it assisted me in considering whether leave should be granted. I am also not of the view that they would have assisted any other reasonable judge in considering the same.
The question of whether the costs of the preparation of a skeleton argument in this matter were reasonably incurred must, in my view, be answered in the negative and I would not disturb the learned Registrar’s decision.
Concerning the “wider point of general impact for the Legal Profession”, if this application has been brought to set a precedent as to whether pre-action skeleton arguments are allowable and/or required, then I decline to set such a precedent.
If counsel embarks on the task of writing a skeleton argument in respect of an application for leave to move for judicial review, at the initial stage, then the proper place to justify that action and the costs of the same, is at the taxation hearing. If the costs of preparing the skeleton argument are disallowed, then a review of the registrar’s decision can be brought, as has happened in this matter, but I decline to say that such costs will be or should be recoverable, even in part, without due consideration of all of the circumstances.