Editor’s Note

Costs assessment in England and Wales is often approached as a technical battleground, governed by rules, practice directions, and case law. But anyone who regularly appears before Costs Judges knows that the outcome is rarely dictated by black-letter law alone. Judicial instincts, experience, and a strong sense of fairness play a decisive role. This article looks beyond the rules to examine what judges in the UK really care about when assessing costs — and why understanding that perspective is essential for effective recovery.

What Judges Really Care About When Assessing Costs

In England and Wales, costs assessment is frequently treated as a procedural exercise. Bills are prepared with forensic detail, points of dispute are drafted with precision, and authorities are cited at length. Yet, despite this technical framework, judicial decision-making on costs is driven as much by judgment as it is by rules.

Costs Judges are not engaged in a purely mathematical task. They are applying experience, instinct, and pragmatism to decide whether the costs claimed are fair and reasonable in the context of the litigation as a whole. Those who understand this tend to achieve better outcomes than those who rely solely on technical compliance.

The starting point for any assessment, whether standard or indemnity basis, is an unspoken sense check. Judges consider whether the total figure claimed sits comfortably with the nature of the dispute. This proportionality assessment is rarely announced at the outset, but it underpins everything that follows. If the overall costs appear excessive when measured against the value, complexity, and conduct of the proceedings, the bill is immediately viewed with scepticism.

In practice, this means that proportionality is not simply a test applied at the end of the exercise under CPR 44.3. It is a lens through which the entire bill is examined. A bill that fails that initial instinctive assessment is unlikely to recover well, regardless of how carefully it has been drafted. Conversely, where the total figure appears broadly sensible, judges are often less inclined to dismantle the bill line by line.

Reasonableness is the next critical consideration, and it is one where judicial experience carries significant weight. Costs Judges in the Senior Courts Costs Office and the County Court see thousands of bills. They know how long routine tasks should take, how litigation typically progresses, and when work has been duplicated or overdone. They are therefore quick to identify entries that feel inflated or unnecessary.

This is where many receiving parties come unstuck. Time spent can often be explained, but explanation does not always equate to justification. Judges are not persuaded by elaborate narratives designed to defend excessive work after the event. They are far more receptive to bills that demonstrate restraint and sound judgment exercised at the time the work was carried out.

Credibility flows naturally from this. Judges form an early view about whether a bill has been prepared by someone applying professional judgment or simply maximising recovery. A clear, coherent bill that tells a logical story about how the case developed tends to inspire confidence. That confidence frequently translates into a more generous approach to assessment.

Where a bill appears padded, credibility erodes quickly. Artificially subdivided items, repeated reviews of the same material, excessive internal attendances, and inflated time for routine correspondence all raise red flags. Once a judge begins to doubt the reliability of the bill, reductions often follow swiftly and decisively. At that point, it becomes difficult to recover lost ground.

Presentation is therefore not a cosmetic issue in UK costs practice. Judges care deeply about clarity and structure because they are under significant time pressure. A bill that is easy to follow allows the judge to engage with the substance of the claim efficiently. Poorly drafted narratives, vague descriptions, and dense blocks of text hinder that process and tend to invite caution. In costs assessment, caution usually means reduction.

Judges also place considerable weight on context. They assess costs against how the litigation was actually conducted. Heavy correspondence in a relatively straightforward matter, the routine involvement of multiple fee earners, or extensive work undertaken late in the proceedings often prompts scrutiny. The question judges ask is not whether the work can theoretically be justified, but whether it was reasonably required in the circumstances at the time.

Costs budgets, where applicable, form part of this contextual assessment. Even where budgets are not strictly binding, they influence judicial thinking. Significant departures from approved or agreed budgets require convincing explanation, particularly if variations were not addressed proactively. A bill that broadly aligns with what was anticipated from the outset appears controlled and credible. One that exceeds expectations without clear justification does not.

Judicial economy is another important, if understated, factor. UK courts are under immense pressure, and Costs Judges are no exception. They value focused arguments and sensible positions. Parties who seek to fight every item on principle, or who over-lawyer the assessment itself, rarely gain favour. Pragmatism is noticed, even if it is not explicitly acknowledged in the judgment.

Finally, judges remain acutely aware that costs orders have real financial consequences. They are balancing the receiving party’s entitlement to recover costs against the need to protect the paying party from unfair or oppressive liability. When a bill appears punitive rather than compensatory, judicial sympathy often shifts. Fairness, in the broad sense envisaged by the CPR, remains central to the exercise.

Ultimately, what judges in England and Wales care about most is judgment. They reward restraint, clarity, and commercial realism. They are far less interested in perfection than in fairness. Costs assessments are not won by exhausting every technical argument, but by presenting a bill that looks reasonable, reads coherently, and reflects sound professional decision-making throughout the life of the case.

For solicitors and costs professionals alike, the message is clear. Successful recovery begins long before the bill is drafted. It starts with how cases are run, how time is recorded, and how judgment is exercised in real time. Understanding what judges truly care about is not just helpful — it is essential.