In Mastercigars Direct Ltd v Withers LLP – Lawtel 6.4.09 the Appellant solicitors appealed against decisions of the costs judge as to how a costs estimate should be reflected in the detailed assessment of two bills of costs.

The Court of Appeal found that the costs judge did not discuss two matters which it might have been relevant to consider: what level of costs would have caused the Respondent to change solicitors, and at what date between the estimate and trial would a revised estimate have caused the Respondent to instruct other solicitors. However, it was not right to be critical of the judge in either of those respects in light of the way the case was presented. The judge's reasons were not inadequate nor was he wrong in law to conclude that the Respondent had shown how it relied on the estimate.

It held that it was not necessary for the client to prove detriment in the sense of showing on the balance of probabilities that it would have acted in a different way, which would have turned out to be more advantageous to the client.

However, it held that the costs judge gave inadequate reasons for selecting a 20 per cent margin over the estimate as a limit on the profit costs recoverable.