Dean & Dean v Angel Airlines
18 January 2007
 EWHC 399 (QB)
The defendant solicitors had acted for the claimant client in a dispute with the lessors of certain aircraft which had been settled on terms. No English proceedings had been issued. The claimant obtained an order for detailed assessment under the Solicitors Act 1974 and a 10 day assessment took place. At the assessment hearing it was common ground that CPR 48.8(2) (which sets out certain presumptions as to reasonableness in Solicitors Act cases) applied, though arguments were put forward by each party as to which bits of that rule applied. This appeal was put forward on the ground that the costs judge had been wrong to apply r.48.8 at all, as the bill was for non-contentious business within the meaning of the Act and therefore governed exclusively by the Solicitors' Remuneration (Non-contentious Business) Order 1994.
(1) The appeal was by way of review, and it was not open to a party on such a review to put forward a new argument which, if successful, would require the whole first instance proceedings to be conducted again. Whilst this was not a case where the first instance judge had heard evidence, the well-established principle by which an appeal court would not generally allow fresh arguments which would require further evidence applied.
(2) In any event the court was not satisfied that the costs judge had been wrong to apply r.48.8. Nothing in the wording of the rule suggested that it did not apply to non-contentious business. At least in a case such as this, involving a known adversary and threats of proceedings in this country, all the provisions of rule 48.8 were apt and capable of being applied with ease. In any event both the assessors and Cook on Costs advised that there was no real distinction in principle in the quantification of contentious and non-contentious costs.
The ratio of this case is noted in para (1) above, and para (2) is obiter.