There still appears to be considerable confusion and misunderstanding with regard to rule 44.14. This provision was designed to deal with conduct during the case which only comes to light during the assessment. See for example rule 44.14(1)(b) which talks about conduct "during the proceedings that gave rise to assessment proceedings". Consequently it would appear that rule 44.14 is the strict preserve of the Costs Judge and not the trial Judge, albeit the comments of Waller LJ in Northstar (above). Rule 44.3 allows the trial Judge to disallow some or all of the costs by reason of conduct, assuming that conduct is known about at the time that the order for costs was made. Accordingly, as in Northstar, it should be raised at that time. If conduct issues only arise later during the assessment hearing then rule 44.14 permits conduct to be taken into account at detailed assessment.

Lahey v Pirelli [2007] EWCA Civ 91

 

26.    Postscript

 

27. We should add by way of postscript a few comments about rule 44.14. Our attention was drawn to what Lord Woolf said in Burrows about the predecessor provision in RSC Ord 62 r 10(1) and 28(1). Rule 28(1) dealt with the powers of a taxing officer in relation to "misconduct, neglect etc". It provided: "where... it appears to the taxing officer that anything has been done, or that any omission has been made, unreasonably or improperly by or on behalf of any party to the taxation proceedings or in the proceedings which gave rise to the taxation proceedings, he may exercise the powers conferred on the Court by rule 10(1)". The powers conferred by rule 10(1) are to disallow the costs in respect of the act or omission or order that any costs occasioned to any other party by the act or omission be paid to that other party.

 

28.    Lord Woolf said:

 

"It is, perhaps, pertinent to observe that the relevant question under rules 10(1) and 28(1) of R.S.C., Ord. 62 is whether something has been done, or omitted, "unreasonably or improperly". To label as "misconduct" an act which is unreasonable but not improper - in the sense which those words convey in this context, as explained by this court in Ridehalgh v. Horefield [1994] Ch. 205, at page 232D-F- may lead to misunderstanding and should be avoided. But the judge was entitled to take the view — as the district judge had done when making the order which was under appeal - that the conduct which he described was unreasonable."

 

29. In Loucas Haji-loannou v loannis Frangos 120061 EWCA CIV 1663 at paragraph 10 Longmore LJ made some observations about rule 44.14(1). He noted that the word "misconduct" does not appear in the body of rule 44.14, but does appear in the title "Court's powers in relation to misconduct". He said that the words in the title "point to the nature of the court's discretion". In relation to rule 44.14(1)(a), therefore, the "failure to comply with a rule" would "usually have to be a breach of the rule which can properly be categorised as "misconduct". The Chancellor and Arden LJ agreed with the judgment of Longmore LJ.

 

30. It may be that there is some tension between what Longmore LJ said in Haji­loannou and what Lord Woolf said in Burrows, although we note that Longmore LJ made no reference to section 51(6) of the Supreme Court Act 1981. To the extent that there is, we prefer the approach of Longmore LJ. The powers given to the court by rule 44.14 include powers that are similar to those available to a judge making a wasted costs order, since where rule 44.14(1) applies, the court may order the party at fault or his legal representative to pay costs which he has caused any other party to incur. It is unlikely that the draftsman intended that a legal representative could be ordered to pay costs under rule 44.14 in circumstances where a wasted costs order could not be made under section 51(6) of the 1981 Act in respect of