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Peter Rogers (2 April 1939 to 16 January 2019)

It was with great sadness that Costs Law Reports learned of the death on 16 January 2019 of our co-founder and co-editor, Peter Rogers, following a prolonged period of ill-health. The notice in the Times on Thursday, January 24 summed up Peter’s life in a short sentence:

“Beloving and beloved husband of Adrienne … He was a lawyer by profession and active in the Methodist Church…”

Such a sentence, of course, could not begin to do complete justice to Peter’s distinguished life, since there was so much more to it, both personally and professionally.

In respect of the former, he and Adrienne had celebrated their Golden Wedding last two years ago, but due to Peter’s ill-health, the party was not the one that he would have wished to throw for his friends and colleagues had he been fit enough to do so. Instead, Peter was confined to a chair in his care home where the frustration of his not being able to lead the active life that he had been used to was greatly ameliorated by the care and devotion provided by Adrienne through her regular visits, those being qualities which she had shown to Peter throughout their long marriage.

As to his profession: in addition to being a lawyer, it was Peter who began the tradition of writing Bulletins for Costs Law Reports. These soon became a monthly event, which his successors, the current co-editors, have done their best to carry on. Whilst the Bulletins have been joint efforts, today the senior editor (by age and follicle challenge) has written some of our tribute to Peter in the first person, having been a friend and professional colleague of Master Rogers (as Peter then was) for over twenty-five years.

Peter became a Taxing Master (as the Costs Judges were then called) in 1992, having sat as a Deputy for two years before that. He loved the job: it suited him well: the hours were regular and the “Clubbable” atmosphere on the Masters’ corridor were aspects of life in which he positively revelled. Peter was a creature of habit and the perfect advertisement for the 1970s catch-phrase “Go to work on an egg”, since it was Peter’s view that you needed a good cooked breakfast in the morning (bacon and eggs — plates washed up) before any Master was fit enough to do battle in the Supreme Court Taxing Office, as the Senior Courts Costs Office was then known.

And battle it was. Peter’s work rate undertaking Criminal Appeals was phenomenal. The judicial requirements then were (and still are) that having heard the arguments, the Master must give written reasons, a task which Peter would power through with no thought for his colleagues who had to read them. For Peter, the lure of the five o’clock from Charing Cross to Sevenoaks meant that court business stopped promptly at 4.30 pm so that he had plenty of time to catch the 9 or 15 Routemaster Bus along the Strand. Unfortunately it was then the practice (and still is) for all written reasons to be proofread by another “Criminal” Master before being signed off by their author. Invariably that meant that the reader would not be catching their equivalent of the five o’clock from Charing Cross, because Peter would expect the proofreading to have been done and dusted and waiting on his desk in time for his return at nine sharp the next morning.

If his court hours could be timed almost by stopwatch, Monday mornings established another Master Rogers tradition: his penchant for corny jokes. No one knew where they came from, but if they had emerged from a Christmas Cracker, that often would have done his jokes more credit than the offerings which arrived each Monday. Nonetheless, Peter thought his jokes were hilarious and the spring in his step as he raced along the Masters’ corridor in order to regale an unsuspecting victim with the latest one about the Englishman, the Irishman and the Scotsman, was something which lifted the spirits and the Monday morning gloom for everyone who heard them: all the more so, when, a couple of months later, the same joke was repeated, Peter having presumably forgotten his earlier recital of it!

Being the creature of habit that he was, combined with being a model of diligence, Peter in Civil Cases would always pre-read in detail the solicitors’ files which supported the bill he was about to assess. In an age without emails, that reading was a significantly more enjoyable task than it is now, since the file would tell an unfolding story about the case and would reveal, as Peter put it “the very best solicitors and the very worst”. What if there was insufficient time to pre-read? Peter knew the tricks of the trade and was generous with his advice to a relative youngster such as myself when I was starting out over a quarter of a century ago. “Make sure that you read one month of the file very thoroughly,” he would advise, “then raise and challenge that month very quickly with the advocates: they will be so impressed with your in-depth knowledge that you won’t have any trouble with anything else!”

In terms of more specific advice, Peter’s door was always open (almost literally as my room adjoined his for fifteen years) to a “new bug” such as myself. When I started at the SCTO, most costs appeals were dealt with in Chambers, so there were scarcely any reported cases in which it was possible to find High Court guidance about the legal conundrums which faced the Taxing Masters, and in particular those new appointees such as myself, who were completely green in such matters. Peter was a fund of knowledge which he shared unsparingly. Issues which appeared to be thorny to newcomers in the absence of any body of case law were meat and drink to him.

The case settled two days before the trial was due to start and the experts are claiming £1,000 a day cancellation fees: can they have them? Is it reasonable to have the partner and the articled clerk sitting behind counsel at court? The solicitors have claimed for a good lunch as well as the train fare for coming to the hearing. Can they have both or must they go hungry? I was indeed fortunate always to be able to get the solution from the bloke next door, through whose common sense and approachable manner the right answer was invariably found.

In terms of his thoroughness, Peter told a story which bears repeating, not only because it is a good story, but also because it is a story with a lesson for any solicitors who plan to lodge their papers in support of their bill as Practice Direction 13.12 to CPR Part 47 requires them to do. That lesson is “Remember that the judge will read the file so if there is anything you don’t want the judge to see, remove it”.

On the occasion in question, Peter chanced upon an attendance note left on the solicitors’ file which stressed the need for “the prettiest Articled Clerk in the office”, blessed with the looks of Aphrodite, to attend before the learned Master Rogers, in order to distract him from the feebleness of the submissions that were to be made in support of the application. Unfortunately for the applicant, it appears that the old maxim “looks aren’t everything” won the day and, despite the charms of the Articled Clerk, the application failed!

In the land of milk and honey that was then the world of Taxation, the advent of technology in 2000 was not something that Peter welcomed, but he coped with it by refusing to cope. Laptops and emails were introduced into the lives of the judiciary following three days’ intensive electronic training the previous August, interrupted only by the total solar eclipse which occurred on the 11th of that month, an event which for Peter was of much more importance and interest. Indeed, for him, emails never caught on and, remarkably, Peter survived for the next decade without ever having switched on his judicial laptop, despite strenuous efforts by the senior judiciary to persuade him to do so.

We told in the February 2018 Bulletin the story of how Lord Justice Brooke had sent an email to the Chief Taxing Master one Saturday afternoon observing that no Costs Judge has ever used his laptop (the Chief excepted), and that that must change. (How did Sir Henry know that, we often wondered?) No entreaty from whatever judicial level, however, made any difference to Peter. Not a single email left his desk from the arrival of his laptop until his retirement, although it is not true to say that throughout that decade, his Hewlett-Packard remained virginal and intact. That undoubtedly would have been the case, had not a colleague needed to borrow it whilst his own laptop was in dry dock. Peter’s was the obvious choice as it was still in its box and spanking new, but to the consternation of those who knew about such things, mystifyingly, it just would not work. The reason eventually became clear: before it could spring into life, the laptop needed to download 12,500 incoming emails for the attention of Master Rogers, all of course unread and that was the way it stayed!

If entreaties from the senior judiciary about electronic work held no terrors for Peter, neither did judgments of the Court of Appeal, binding although they were (or were supposed to be) on the lower judges such as the Taxing Masters. Not necessarily in Peter’s case. In the course of proofreading his written reasons in criminal appeals, or in discussions with him about a judgment in a civil case which Peter was about to hand down, I sometimes felt duty bound to draw his attention to a Court of Appeal authority which ought possibly, I would timorously suggest, have a decisive role to play in the outcome. “Yes I have considered that case,” would be Peter’s riposte, or words to that effect: “The Court of Appeal got it wrong and anyway, I have distinguished it!” Usually he would be right and Peter’s appellate record was one of which he was justifiably proud as his judgments were seldom reversed, albeit that we were never quite privy to the scorebook he meticulously maintained covering, as it did, every case in which there had been an appeal against his decisions.

The importance of Peter’s judgments that did, in the event, “go further” is clear from the fact that they are still cited up and down the Masters’ corridor at detailed assessment. Disputes about the hourly expense rates for solicitors remain familiar battlegrounds and Peter’s decision in Higgs v Camden & Islington Health Authority [2003] 2 Costs LR 211 upheld by Fulford J, has stood the test of time and is still good law. Another matter, the rate of charge permissible where solicitors are acting in the administration of an estate, was of such importance that it was leap-frogged to the Court of Appeal — see Jemma Trust Company Ltd v Liptrott [2004] 1 Costs LR 66. Although Peter’s decision was not upheld, a subsequent appeal to Hart J in the same case on the work done administering the estate, was — see [2004] 4 Costs LR 610.

Peter’s Service of Thanksgiving took place on Monday and in her eulogy Reverend Gillian Le Boutillier-Scott spoke movingly about Peter’s life outside the law. His early years were spent in Canada where Peter had excelled academically to the extent that an offer had been made of a place at a Canadian University when he was just 14. His father had pooh-poohed the idea and insisted instead that Peter be sent to a boarding school in Taunton; from there, he went up to Bristol University to read law. Thereafter, Peter enjoyed a long career as a solicitor, ending his work in private practice as a partner at Turner Kenneth Brown prior to taking up his judicial appointment. Concurrently, Peter was a strong supporter of his Methodist Church in Sevenoaks, where his Thanksgiving Service, most appropriately, was held.

When not legal eagle-ing, Peter’s interests, as described in Who’s Who, included “Weather, steam and other railways, environmental concerns”. The first of these had begun during his young days in Canada when Peter’s father had sent him outside to check the temperature. It was minus 40, but the task so fascinated Peter that thereafter he checked his temperature and rainfall gauge every day. Even a few months ago, I was receiving emails from him (remarkable how emails caught on once Peter had left the Costs Office) keeping me posted about all matters meteorological in Sevenoaks:

“4 April 2018. Hoping that spring is nearly here! We’ve had 3.81 inches of rain and snow in March and another 0.74 already this month and the garden is soggy to say the least …
16 May 2018 — spring continues to be very variable. Yesterday, with almost unbroken sunshine, I recorded a maximum of 24.5C. Today, with virtually no sunshine. It was only 13.3C.”

Excursions on “Steam Specials” with Adrienne were happy days too, on which Peter could indulge “his love of all things Railway” as Reverend Gillian put it, until ill health unfortunately brought all that to a halt.

Tributes from far and wide were recited in the eulogy. They speak for themselves. “Concerned for others”, “never grumbled or complained during his lengthy illness”, “took new colleagues under his wing so no one ate alone”, “never said an unkind word about anybody”, “self effacing”, “modest”, “knew all about legal costs but wore his knowledge lightly”, “a true gentleman”, “Peter and Adrienne had the best of partnerships together”.

The last tribute about this kind and decent man should appropriately be left to Michael Bacon:

“From the day I suggested the Costs Law Reports project to Peter with us as joint editors he entered into the project with immense enthusiasm and during his time as co-editor we worked together so well. His gentle wit and the choice of subjects when he came to write the Bulletin copy were brilliant. …
In professional life he was up there with the best of our costs judges … he was always meticulous in his reasoning and judgments and courtesy and good conduct were welcome essentials in his courtroom.”

I did not know anything Peter’s views about Brexit, but it is reasonable to suppose that, as with any underprepared advocate who appeared in his court, he would have given our politicians short shrift. Remembering his ability to express himself clearly with due regard to Latin maxims, and that he based many of his Costs Bulletins on articles which had appeared in the Times, we thought it apt to conclude this tribute by including a recent letter from the Thunderer which we are sure would have made Peter chuckle:

“Dear Sir
Brexit declined
Your Latin teacher (letter, January 22) did not explain all the principal parts of the new verb brego, bregere. After the past tense Brexit (he or she left the European Union) there inevitably follows the supine, brectum (we’re all buggered).
Richard Browne
Former Times crossword editor, Havant Hants”

The headnotes and full texts of the cases below are available to online subscribers at Follow Costs Law Reports on Twitter to be notified of new cases as soon as they are published.

New cases this month

Retailers v Visa (Application in Private) [2018] 6 Costs LR 1203: Part 36; permission to accept a Part 36 offer after the trial period has commenced: refusal of an application to withdraw a Part 36 offer.

Parker Lloyd Capital Ltd v Edwardian Group Ltd [2018] 6 Costs LR 1235: Costs consequences where a receiving party had refused to enter into mediation, having considered the case to be hopeless and the request to mediate to be a tactic designed to extract a nuisance payment.

WG v HG [2018] 6 Costs LR 1247: Costs in the Family Division in high value divorces: appropriate order to make following presentation of an unreasonable case in financial remedy proceedings.

Link Up Mitaka Ltd t/a THEBIGWORD v Language Empire Ltd and Another [2018] 6 Costs LR 1279: Intellectual Property list: factors to take into account in deciding whether a party’s conduct amounted to an abuse of the court’s process, justifying a departure from IPEC’s scale costs and an order that the costs be paid on an indemnity basis.

Kent v Paterson-Brown and Another [2018] 6 Costs LR 1289: Costs order following judgment: whether costs should be paid on the standard or indemnity basis; interest and level of any further interim payments on account of costs.

Bank St Petersburg PJSC and Another v Arkhangelsky and Others [2018] 6 Costs LR 1303: Determination of costs relating to claim and counterclaim in high value complex litigation; interim payment; stay of costs orders pending application to the Court of Appeal for permission to appeal.

R (Kay) v Scan-Thors (UK) Ltd and Others [2018] 6 Costs LR 1317: Costs of private prosecution brought in the magistrates’ court: award on the indemnity basis following failure to comply with the duty of candour and engaging in unreasonable conduct in prosecuting the litigation.

Ogiehor v Belinfantie [2018] 6 Costs LR 1329: Wasted costs order: whether justified to make an unless order for payment where litigant-in-person has disclosed to the court details of a settlement offer made under Part 36.

RJ and Another v HB [2018] 6 Costs LR 1347: Appropriate order to make on setting aside in part an arbitration award made under s 68 of the Arbitration Act 1996: whether summary or detailed assessment: interim payment.

Rotam Agrochemical Company Ltd and Another v GAT Microencapsulation GMBH [2018] 6 Costs LR 1365: Trial costs: factors to apply in deciding which party had been successful at trial where the damages awarded amounted to 2% of the value of the claim: percentage reduction to take into account conduct and those matters which had been lost.

Warren v Hill Dickinson LLP [2018] 6 Costs LR 1377: Conditional fee agreements: whether capable of being assigned and enforceable; whether “success” achieved; permission to appeal.

NJL v PTE [2018] 6 Costs LR 1389: Conditional fee agreements: success fees to be allowed where an admission of liability has been made before CFA entered into, to take into account the Part 36 risks.

Costs and Fees Encyclopaedia updating

The Ecclesiastical Judges, Legal Officers and Others (Fees) Order 2018 (SI 2018/900) revokes and replaces the 2017 Order with effect from 1 January 2019. Updated pages are now available for printing out and adding to your Costs and Fees Encyclopaedia: Pages 266-273

Other recent cases

Griffin v Higgs and Others [2018] 5 Costs LR 1061: Appropriate costs order in proceedings involving the costs of executors and trustees: whether such costs should be payable out of the deceased’s estate.

Hosking and Another v Apax Partners LLP and Others [2018] 5 Costs LR 1125: Discontinuance under CPR Part 38 four days into a six week trial: whether costs should be paid on the standard or indemnity basis: level of interim payment under CPR 44.2(8).

Macrae v Herefordshire Council [2018] 6 Costs LO 695: Proportionality under the test in Lownds v Home Office: whether leading counsel’s fees in the Court of Appeal, which had been reasonably incurred, had also been necessarily incurred.

Nicholls v Nicholls [2018] 6 Costs LO 705: Costs of proceedings involving the administration of an estate under CPR 46.3: whether payable out of the estate and the consequences of the claimant’s unwillingness to engage in mediation.

JP Finnegan v Spiers t/a Frank Spiers Licensed Conveyancers [2018] 6 Costs LO 729: Part 36 offers: whether a payment on account of the receiving party’s costs can be ordered under the rule following acceptance of the paying party’s offer.

Bentley Design Consultants Ltd v Sansom [2018] 6 Costs LO 743: Part 36: factors to apply in deciding the extent to which an acceptance of a Part 36 offer covered the whole of the claim or merely part of it.

Lewis Thermal Ltd v Cleveland Cable Company Ltd [2018] 6 Costs LO 759: Security for costs under CPR 25: variation of order to provide for security to be given by a Deed of Indemnity from an ATE insurer.

BMCE Bank International plc v Phoenix Commodities Pvt Ltd and Another [2018] 6 Costs LO 767: Costs budgeting: failure to file a budget in compliance with CPR 3.13; budget treated as comprising only applicable court fees under CPR 3.14; relief from sanctions CPR 3.9.

R (Khan) v Director of Legal Aid Casework [2018] 6 Costs LO 799: Power of the Director of Legal Aid to make a determination under the Criminal Legal Aid (Contribution Orders) Regulations 2013 requiring a defendant to make a capital contributions order payable out of disposable specified capital.

Britned Development Ltd v ABB AB and Another [2018] 6 Costs LO 807: Part 36: costs consequences following the withdrawal of a Part 36 offer where subsequently a party had failed to beat that offer at trial.

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