Cuthbert v Gair & Anor (t/a The Bowes Manor Equestrian Centre) [2008] EWHC 90114 (Costs)

Posted on Wednesday, September 3rd, 2008

This was a matter where the Claimant submitted that the costs of a loss adjuster, included in a Bill of Costs at Detailed Assessment as a disbursement, could not be recovered against a paying party.

The loss adjuster had been instructed by the Defendants’ insurer prior to the instruction of the Defendant’s Solicitor. Following the filing of a notice of discontinuance by the Claimant, the Defendants requested detailed assessment of their Bill of Costs. The Costs Officer allowed the costs of the loss adjuster as they were incurred clearly ‘of and incidental to’ the proceedings.

At appeal, the Claimant submitted that the loss adjuster’s costs had been incorrectly claimed as a disbursement and that at the time that these costs were incurred, a solicitor had not been instructed. It was argued that these costs had been unnecessarily incurred as had a legal representative been instructed, the legal representative would have undertaken this work.

It was further submitted by the Claimant that the claim for costs was not the Defendants’ insurers, but the Defendants’, therefore, there was nothing to indemnify the Defendants for and inter-partes recovery was in breach of the indemnity principle.

The Defendant argued that in accordance with the doctrine of subrogation, the costs of the loss adjuster had to be treated as a disbursement incurred by the Defendants. It was also argued that before the Solicitor was instructed, the Defendants/insurer should be treated as litigant in person and therefore the expenses of the loss adjuster were as an out of pocket expense.

Master Haworth allowed the appeal and disallowed the costs of the loss adjuster in their entirety. He was bound to the decision in Agassi v Robinson [2005] EWCA Civ at 107. In addition, the work carried out was routine work and nothing that the insurer could not have done themselves.

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