Raising Conduct Issues on Assessment

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The Court of Appeal has given some further guidance in relation to when a paying party can raise issues of conduct on an assessment.

In Northstar Systems Limited and Others -v- Fielding and Others the Court gave consideration to the principle established in Aaron -v- Shelton and considered that it was too broadly stated.

The Court held that consideration of a party's conduct should normally take place both at the stage when the Judge is considering what Order for Costs he should make and then during assessment.

It will however be important to ensure that a party is not penalised twice and Judges in future should make it clear whether they are making the Order on the basis that, on an assessment, the paying party will still be entitled to raise conduct in arguing that costs are unreasonably incurred.

In Northstar there had been a finding of dishonesty by the judge which can be contrasted with Aaron v Shelton in which there had been no such finding and which had settled by consent.

Both Aaron and Northstar are worth considering if you think conduct is going to be an issue on a detailed assessment of the costs.