Land acquisition – Professional fees – Quantum – Claimant assessor providing business services for Olympic site – Defendant agency terminating agreement – Court holding claimant entitled to assessment of fees – Whether court needing assessor to assist at trial on quantum – Application dismissed
The defendant was responsible for the acquisition of land for the purposes of the 2012 Olympic Games. The claimant loss assessor was one of three professional firms engaged by the defendant to assist in that acquisition. Following the termination of the agreement between the parties, the claimant brought proceedings claiming that the defendant owed more than £1m for work carried out up to the termination of the agreement. Claims by the two other firms were compromised. The High Court concluded that the claimant was entitled to its fees: [2007] EWHC 106 (QB).
The quantum of the claim remained to be assessed and the defendant applied, pursuant to CPR 35.15, for an assessor to be appointed to assist the court at the quantum trial. The claimant’s services included negotiation and project management in the giving of relocation advice. It was agreed that relocation advice work was covered by the compensation code relevant to compulsory purchase and compensation. Furthermore, the defendant claimed that the code would also be relevant to the assessment of most of the negotiation and project management fees that it was also allegedly owed.
Pursuant to the code, the claimant was entitled to recover “the reasonable costs and expenditure which arises as a natural and reasonable consequence of the relocation”, including “legal fees arising from the acquisition of the replacement property” and similar surveyor’s and architect’s fees. The claimant acknowledged that even where the code was not directly relevant to the assessment of the sums due, its entitlement would be calculated by reference to what was reasonable in all the circumstances. The total amount in dispute was approximately £600,000, including interest.
Held: The application was dismissed.
In all the circumstances, it would be both disproportionate and unnecessary to require the parties to pay for the costs of an assessor to assist the court with the evaluation of any sums due from the defendant to the claimant.
Under CPR 35.15, the court had a wide discretion to appoint an assessor having regard to the overriding principle (CPR 1.1) and, in particular, to all questions of proportionality. A court should think twice about imposing an extra layer of cost and should evaluate the potential benefit of an assessor against that cost and the amount at stake in the proceedings.
The appointment of an assessor could be appropriate if the subject matter of the proceedings was technically complex or involved a particular activity that would be unfamiliar to the court. Assessors could sometimes be required in detailed or complex costs disputes although, depending upon the circumstances, their own costs would often be met by the court service, rather than by the parties.
Where assessors were appointed, it would be important to ensure that the questions put to the assessor and the assessor’s answers were shared with the parties and made the subject of counsel’s submissions. That could lead to the risk of increased cost and delay. In recent years, the appointment of an assessor in Technology and Construction Court cases had been the exception rather the rule: McAlpine Humberoak Ltd v McDermott International Inc (No1) (1990) 51 BLR 34 considered.
Philip Engelman (instructed by Betesh Partnership, of Manchester) appeared for the claimant; Benjamin Williams (instructed by Eversheds LLP) appeared for the defendant.
Eileen O’Grady, barrister
