Fehmida Akhtar v Wilayat Bashir

Deputy Costs Judge Erwin-Jones:

1. This application concerns a bill of costs produced by W (Petitioner) who I shall refer to as W following the Judgment of HHJ Poole of 15 May 2024 in Case Number BV20D09765 leading to an Order that H(Respondent) – here referred to as H pay W’s costs. Those costs were to be from and including 1 June 2020 in respect of and incidental to her divorce petition including applications from H for declarations that the divorce was not valid/or that it was avoidable, such detailed assessment to be on the standard basis in accordance with Regulation 21 of the Civil Legal Aid (Costs) Regulations 2013. Both parties had instructed solicitors who were on record.

2. In making this judgment I have considered only the material properly lodged at this court and which is available to both parties, along with the submissions made by the parties’ representatives, Mrs Middleton for W and Ms Bedford for H.

3. On 11 February 2024, W served a Notice of Commencement of Bill of Costs requiring points of dispute to be served on or before 6 March 2025 (21 days from the date of service of the Notice). That Notice is in the bundle I have seen today. The Notice of Commencement was in Form N252 and immediately before the signature box, is set out the following sentence: “If I have not received your points of dispute by the above date, I will ask the Court to issue a Default Costs Certificate (“DCC”) for the full amount of my bill plus fixed costs and Court fee…”.

4. It follows that H was, through service on his solicitor, aware of the need to file points of dispute on or before 6 March, failing which a DCC could be requested. Whether it should reasonably have been requested quite so quickly, without warning H’s legal team, in the circumstances is another matter.

5. I have seen that during this time W was, to some extent, incapacitated as evidenced from the sick note I have seen dated 27 February 2025. I am also informed that H has been unwell, including a skin rash, and I have seen a sick note dated 10 April 2025 which post-dates the time period that is the subject of this application. I understand that his instructions are that he was also unwell throughout March, although I have not seen any evidence of this. He did agree to a parallel ( non-costs ) hearing being vacated in March although this was apparently with reference to Ramadan rather than his health needs.

6. The bill was emailed to H’s solicitor on 11 February 2025 and formally served by post on 12 February 2025. In evidence before this court, in an application to set aside the Default Costs Certificate, on 20 March 2025 H’s solicitor stated that H was proactive and sought immediate advice although the principal reason for delay in progressing matters appears to be his need to find funds to make a payment on account to his own lawyers. It is also asserted that he was in “no mental, physical or financial position” to finalise instructions to his costs lawyers until 3 March 2025, three working days before the points of dispute fell due.

7. Late on the afternoon of 5 March 2025 the representatives of H requested an extension of time to file points of dispute. This request was made to W’s costs draftsman. Perhaps unsurprisingly, given how late in the day the request was made, it was not possible for the costs lawyer to obtain instructions from W’s solicitors and so they were without instructions. They did not on the evidence I have seen “refuse” the request. I find they did have authority to apply for a DCC once the Points of Dispute fell due, and it is evident that the following day the application was made. On 11 March 2025 W’s team served the DCC on H’s solicitors.

8. No evidence is before the court as to why it took until 21 March 2025 for H’s legal team to draft and then issue the application to set aside the DCC.

9. PD 47 at paragraph 11.2 (3) provides “ as a general rule a Default Costs Certificate will be set aside under Rule 47.12 only if the Applicant shows a good reason for the court to do so and if the Applicant files with the application a copy of the bill, a copy of the Default Costs Certificate and a draft of the points of dispute the Applicant proposes to serve if the application is granted ”.

10. In this case, the application to set aside the DCC did not append or include a draft of the points of dispute proposed to be served. These followed five days later and my attention has not been drawn to any evidence explaining the delay between the issue of the DCC and the application to set aside, or the failure to append the draft points of dispute to the application on 21 March 2025.

11. H invites the Court to set aside the DCC on the basis of the discretionary limb under CPR 47.12(2). It is also accepted for H that the strictures of the test for relief from sanctions and the guidance in Denton v White [2014] EWCA Civ 906 should be considered. It is accepted for H that the first two stages of the Denton test are not met.

12. So, on behalf of H it is suggested that this is a clear case where the DCC should be set aside and the Detailed Assessment hearing ought to be allowed to proceed because : a) There was a clear request for an intime extension to the Points of Dispute which was not answered until the deadline day and then “rejected out of hand without any explanation”. b) There was a question mark over whether W did give express instructions to reject an intime request for instructions c) There is said to be an inexplicable increase between the prior N260 served for the final hearing in Case Number BV20D09765 and the current Bill of Costs that cannot be explained through a mere increase in the rates from Legal Aid rates to market rates. The overall costs will diminish the value of the assets in the divorce proceedings and thus divert funds away from the family and into the hands of lawyers.

13. I accept on the evidence before me in the bundles today that there was not a rejection out of hand of H’s request for an extension of time to serve points of dispute. The position was that W’s costs lawyer was simply unable to get instructions in the time allowed. She was contacted by solicitor Anju Kohli on 5 March 2025 at 4:41pm with a request for an extension of time. It is clear that during the day on 6 March 2025, costs lawyer Christine Middleton chased instructions throughout the day but was unable to obtain authority to extend time for service of points of dispute. That information was shared with H’s solicitor within office hours at 2:42pm. There was no rejection of the application to extend time. The costs lawyer simply did not have authority to agree it.

14. I am also satisfied that it was not strictly necessary to obtain specific instructions from W as to whether or not she rejected the request for an extension of time. I note the authorised notice of commencement had made it clear that an application for a Default Costs Certificate would follow failure to file points of dispute and so there was no obligation on the part of W’s costs or legal team to defer to their client for instructions on this point nor, in view of her ill health, would it necessarily have been appropriate for them to do so.

15. In authorising the lodgement to the bill of costs with the Notice of Commencement, W had effectively “pre-authorised” her legal team to apply for a Default Costs Certificate. However I have not seen any evidence that she or her solicitors required that application to be made the very moment it fell due. Although it was not “wrong” to apply for the DCC at that point, more could and should have been done in my view to alert H’s team to their intention to quickly apply for the certificate. I find their conduct to have fallen only very slightly short of opportunistic. Whether it would have made any difference in view of the slightly tardy conduct of H’s team thereafter is impossible to assess.

16. By contrast, this court is informed H was apparently suffering other ongoing ill health problems (as well as financial difficulties), although I am surprised that it is not mentioned in the recital to the draft order vacating the hearing in the Central Family Court on 24 March 2025. There is no evidence as to why the health problems would have prohibited him from authorising his solicitors to instruct costs lawyer to draft points of dispute or an immediate application to set aside the DCC. H’s team was aware that the date was imminent and they were aware that W’s costs lawyer did not have authority to extend. There is no explanation of the delay between 11 and 21 March 2025 or the further delay in filing the draft Points of Dispute.

17. W’s delay in serving the bill of costs for over 7 months, in my view, carries little weight in this application. Steps could have been taken by H’s team to expedite this and there would no doubt be an argument that any interest be limited as a result.

18. Significantly greater weight is put by H on the increase between the prior N260 in Case Number BV20D09765 and that W’s current bill of costs appended to the Notice of Commencement. H’s counsel points to the 300% “inexplicable” increase in the costs claimed. I am not attracted on current evidence by H’s argument that both statements of truth placed before the court “cannot” be correct. This is because there is a fundamental difference in the way in which legal aid costs are presented against the agency for payment, and the way in which costs are presented inter partes. Not only is there the difference in hourly rates, but the scope of legal aid certificates can limit what can be claimed from the legal aid agency, and the way in which units are presented, whereas some items can be claimed from the losing party in an inter partes order. Furthermore, whilst inter partes costs are assessed under the standard basis, legal aid agency claims are subject to legal aid rates on the terms of the contract with the LAA.

19. However I am satisfied that the circa 300% increase and difference between the two bills of costs is sufficiently significant and unexplained for relief being granted. Given the potential impact on the value of the assets in the divorce proceedings more ( something) could and in my view should have been done by W’s team to explain the reasons for the difference both on service of the bill, and between the making of H’s application before this court and the hearing of that application. They knew this was likely going to be an issue as evidenced by the exchange and correspondence leading to paragraph 4 of HHJ Poole of 15 May 2025 and common sense would have strongly suggested they address it head on or at least before the hearing of this application.

20. Neither party has in my view conducted themselves in any way that seeks to limit legal fees, maximise the matrimonial assets or further the overriding objectives set out within the CPR or FPR.

21. Accordingly whilst I am prepared to set aside the costs certificate dated 11 March 2025, and permit H to rely on the Points of Dispute I have seen dated 26 March 2025, I am not prepared to award either party their costs of this application.