Choudhury vs Mukherjee

This case concerned an appeal notice filed by the Defendant, Dr. Shauna Mukherjee, in June 2023, against a Final Costs Certificate issued in March 2016. The appeal was heard by Costs Judge Leonard, who had to determine whether an extension of time to appeal should be granted after such a significant delay.

TLDR:

• Dr. Mukherjee appealed against a Final Costs Certificate issued in March 2016.
• The appeal was filed over seven years after the certificate was issued.
• The court examined the procedural history and the merits of the appeal.
• The appeal was dismissed due to lack of timely action and weak grounds.

The factual background of the case centers on a judgment given by Deputy District Judge Shelton on 24 March 2014, in the County Court at West London, in favor of the Claimant, Mr. Nazim Choudhury, for a sum of money with costs to be assessed. The judgment stemmed from a claim for possession of a rental property and arrears of rent. The Defendant, Dr. Mukherjee, had vacated the property, and the claim continued as a money claim, concluding with the judgment. Dr. Mukherjee had counterclaimed for disrepair, but this was dismissed, and costs were awarded to her, although she never quantified these costs.

On 6 October 2014, Dr. Mukherjee's application to set aside the March 2014 judgment was dismissed, and she was ordered to pay costs summarily assessed at £3,094.20. Detailed assessment proceedings for the Claimant's costs commenced on 27 January 2015, with the Notice of Commencement and bill of costs sent to the Defendant by both email and post.

Dr. Mukherjee served Points of Dispute in February 2015, and negotiations ensued but did not result in a settlement. The Claimant's bill was provisionally assessed by the Senior Courts Costs Office, and a Final Costs Certificate for £9,110.76 was issued on 10 March 2016. The Defendant was notified of the assessment and the certificate via email and post.

In March 2022, enforcement proceedings for the Final Costs Certificate came to Dr. Mukherjee's attention, leading her to apply again to set aside the March 2014 judgment and to stay the enforcement proceedings. These applications were dismissed in June 2022. Subsequently, in June 2023, Dr. Mukherjee filed an Appellant's Notice against the Final Costs Certificate.

The grounds of appeal included allegations that the Final Costs Certificate was unlawfully obtained, that the Defendant was unaware of it due to improper service, and that costs had been duplicated. The Defendant also argued that the Claimant's conduct had been unreasonable.

Costs Judge Leonard examined the procedural considerations, noting that the appeal was filed over seven years after the expiry of the 21-day period set by CPR 47.23. The judge found that the Defendant was aware of the assessment process and had received notifications, rejecting the claim of improper service.

The judge applied the test from Denton v TH White Ltd [2014] EWCA Civ 906 to determine whether to allow the appeal out of time. The breach was found to be serious and significant with no good reason for the delay. The judge also considered the merits of the appeal and found them to be weak, noting that there is no right of appeal from a provisional assessment as per PME v The Scout Association [2019] EWHC 3421 (QB).

Ultimately, the appeal was dismissed due to the Defendant's failure to act promptly and the lack of merit in the appeal grounds. The judge emphasized the importance of adhering to procedural rules and the consequences of failing to do so.