Kerry Underwood

PROVISONAL ASSESSMENT

with 18 comments


Provisional Assessment

I am grateful to Simon Gibbs at http://www.gwslaw.co.uk/blog/ for much of the material in this piece.

Provisional assessment applies to all detailed assessment proceedings commenced in the High Court or County Court on or after 1 April 2013 where the amount of costs claimed is £75,000 or less (CPR 47.15(1)).

This is treble the figure recommended in Chapter 45 of Lord Justice Jackson’s Final Report and treble the figure piloted in Leeds, Scarborough and York County Courts.

However the new provisional assessment regime for cases with costs up to £75,000.00 “just has not happened” according to Master Peter Haworth of the Senior Courts Costs Office; he also said that it was “quite incredible” that cases involving so much money should be decided on the papers without a hearing. (Master Haworth speaking at the Compass Law Commercial Litigation Conference in July 2014.)

Speaking at SJLive on 25 February 2015 Master Haworth said:-

“The six week target for provisional assessment is a joke – no court is complying. The Practice Direction is pointless if judges are not given the resources to comply.”

“Other than in London, District Judges are doing provisional assessments without seeing the papers – you may as well toss a coin.”

CPR 47.6(1) provides:-

“Detailed assessment proceedings are commenced by the receiving party serving on the paying party –

(a) notice of commencement in the relevant practice form;

(b) a copy of the bill of costs.”

CPR 44.1 defines costs:-

“’costs’ includes fees, charges, disbursements, expenses, remuneration, reimbursement allowed to a litigant in person under rule 46.5 and any fee or reward charged by a lay representative for acting on behalf of a party in proceedings allocated to the small claims track.”

There is a new form N258 – Request for Provisional/Detailed Assessment – which requires one of two options to be ticked:

“I confirm the costs claimed are £75,000 or less and I ask the court to undertake a provisional assessment” or

“I confirm the costs claimed are over £75,000 and I ask the court to arrange a detailed assessment hearing”.

In accordance with CPR 47.15(5) “the maximum amount the court will award to any party as costs of the assessment (other than the costs of drafting the bill of costs) is £1,500 together with any VAT thereon and any court fees paid by that party.”

In Crosbie v Munroe [2003] EWCA Civ 350 the Court of Appeal said:-

“Until the time the substantive claim is settled, the “proceedings” relate to liability and the amount of any compensation. After the substantive claim is settled, the “proceedings” relate to the assessment of the costs the paying party has to pay. Although CPR 43.2 contains no definition of “assessment” as such, the White Book comment on this rule accurately states that “assessment” is “the process by which the court decides the amount of any costs payable.

…the assessment proceedings cover the whole period of negotiations about the amount of costs payable through the Part 8 proceedings to the ultimate disposal of those proceedings, whether by agreement or court order.”

It is not clear, however, what happens about the costs that are incurred in relation to pre-provisional assessment applications such as applications to set aside default costs certificates, applications for interim payments or applications for relief from sanctions.

If such applications are dealt with pre-provisional assessment, it will not be known at that stage whether the proceedings will “go beyond provisional assessment”. Such pre-provisional assessment costs are therefore incurred within the detailed assessment proceedings but are they costs “of the assessment” or are they costs recoverable in addition to the £1,500 cap if the matter does not go beyond provisional assessment?

By virtue of the 66th Update to the Civil Procedure Rules, effective 1 October 2013, CPR 47.15.5 is amended to read:-

“In proceedings which do not go beyond provisional assessment, the maximum amount the court will award to any party as costs of the assessment (other than the costs of drafting the bill of costs) is £1,500 together with any VAT thereon and any court fees paid by that party”.

There are no transitional provisions so the old rule applies to provisional assessments up to 1 October 2013 and the new rule to any provisional assessment undertaken on or after 1 October 2013.

Additional liabilities are included within the £1,500 and this is in line with the decision in Jodie Henderson v All Around The World Recordings Limited [2013] EWPCC 19, 27 March 2013, in relation to the cap in the Patents County Court.

Time spent drafting the bill of costs is allowable in addition to £1,500, but seemingly no allowance is made for checking the bill. Compare this with PD47, paragraph 5.19. “The bill of costs must not contain any claims in respect of costs or court fees which relate solely to detailed assessment proceedings other than costs claimed for preparing and checking the bill”.

There is no reference to work done in connection with issuing costs only proceedings and thus such work is included in the £1,500 – see Crosbie v Munroe [2003] EWCA Civ 350 above.

No indication is given for the change of heart, presumably because the true reason is that the original wording was very poor.

It is still unclear as to whether the failure to allow additional costs for checking the bill and the failure to allow additional liabilities over and above the cap are deliberate policy decisions or yet further errors.

Provisional assessment is a procedure whereby the court provisionally assesses costs on paper, that is without an oral hearing, and if either party is dissatisfied then it can seek an oral hearing, but will pay the costs of that exercise if it does not achieve a 20% improvement upon the provisional assessment.

All that is filed at court is:

  • the bill
  • points of dispute
  • replies
  • costs orders
  • copies of fee notes

Also to be filed with the court when requesting a provisional assessment under the new Practice Direction 14.3(d) to CPR 47.15 are:

“the offers made (those marked “without prejudice save as to costs” or made under Part 36 must be contained in a sealed envelope, marked “Part 36 or similar offers”, but not indicating which party or parties have made them).”

and as per Practice Direction 14.3 (c)

“a statement of the costs claimed in respect of the detailed assessment drawn on the assumption that there will not be an oral hearing following the provisional assessment.”

Provisional assessment does not always appear to be going the way it should, as different courts are introducing their own directions.

Replies are optional, but some courts are ordering them and also asking parties to service Replies not limited to points of principle and concessions – that contradicts Practice Direction 47, paragraph 12.1.

In the absence of a Reply from the receiving party to Points of Dispute some courts are assessing costs as per the paying party’s offer, again in clear breach of PD47, paragraph 12.1.

Thus the concept is that at the end of the provisional assessment the judge will open the sealed envelope, see what offers have been made, decide liability and make a decision.

Practice Direction 14.4(1) to CPR 47 states:-

“On receipt of the request for detailed assessment and the supporting papers, the court will use its best endeavours to undertake a provisional assessment within 6 weeks.”

Practice Direction 14.2(2) to CPR 47 states that paragraph 13 of the Practice Directions, in relation to Detailed Assessment, also applies to Provisional Assessment and Practice Direction 13.12 refers to supporting documents as follows:-

“The papers to be filed in support of the bill and the order in which they are to be arranged are as follows –

(i) instructions and briefs to counsel arranged in chronological order together with all advices, opinions and drafts received and response to such instructions;

(ii) reports and opinions of medical and other experts;

(iii) any other relevant papers;

(iv) a full set of any relevant statements of case;

(v) correspondence, file notes and attendance notes;”

Thus at present it is unclear whether the court require the papers in support of the bill as set out in Practice Direction 13.12, as 13.11 requiring these documents to be filed is exempt from Provisional Assessment, and my advice is to seek the guidance of the court in any given case, and if this is not forthcoming to lodge the whole file and to lodge separately and in addition the very limited papers required by the Practice Direction.

The Senior Courts Costs Office recommends that receiving parties lodge the full file when requesting assessment, but has not made this mandatory, as it believes that it has no power to do so, but takes the view that parties who fail to lodge the full file will be at a serious disadvantage.

Some Regional Costs Judges have taken the same view.

Most of us believe that Practice Direction 47, paragraph 13.13 DOES give the court power to order the whole file to be produced:

“13.13 The court may direct the receiving party to produce any document which in the opinion of the court is necessary to enable it to reach its decision. These documents will in the first instance be produced to the court, but the court may ask the receiving party to elect whether to disclose the particular document to the paying party in order to rely on the contents of the document, or whether to decline disclosure and instead rely on other evidence.”

Any oral hearing will be conducted by the District Judge who made the provisional assessment on paper; an oral hearing is not an appeal but rather a “second stage of the process before the assigned District Judge”.

If the party is unhappy with the outcome of a provisional assessment they can request an oral hearing. Liability for the costs of the hearing are dealt with by new CPR 47.15 (10):

“Any party which has requested an oral hearing, will pay the costs of and incidental to that hearing unless –

(a) it achieves an adjustment in its own favour by 20% or more of the sum provisionally assessed; or

(b) the court otherwise orders.”

Practice Direction 14.5 to CPR 47.15 (10) states:

“When considering whether to depart from the order indicated by CPR 47.15 (10) the court will take into account the conduct of the parties and any offers made.”

It is unclear as to whether a successful Part 36 offer trumps the 20% rule.

Thus £30,000 is awarded. The paying party makes a Part 36 offer of £28,000. The court cuts the award to £27,000, that is a 10% reduction, which is obviously less than a 20% adjustment in the sum provisionally assessed, but nevertheless is more than the Part 36 offer.

Where do costs lie?

Practice Direction 14.4(2) provides:

“Once the provisional assessment has been carried out the court will return Precedent G (the points of dispute and any reply) with the court’s decisions noted upon it. Within 14 days of receipt of Precedent G the parties must agree the total sum due to the receiving party on the basis of the court’s decisions. If the parties are unable to agree the arithmetic, they must refer the dispute back to the court for a decision on the basis of written submissions.”

That seems to suggest the judge won’t do the calculations at the end of the provisional assessment. Why then require costs schedule(s) to be filed with the request for the provisional assessment if it is known that further work must be undertaken (doing the arithmetic) but the amount of work required will not be known?

For some bills the extra work needed may be relatively minimal but for others may be more drawn out, particularly where there is disagreement between the parties.

Further, in this situation if the parties have to do the arithmetic, what is the normal mechanism for then asking the court to determine liability for the costs of the provisional assessment where the parties cannot agree? Practice Direction 14.6 provides:-

“If a party wishes to be heard only as to the order made in respect of the costs of the initial provisional assessment, the court will invite each side to make written submissions and the matter will be finally determined without a hearing. The court will decide what if any order for costs to make in respect of this procedure.”

An appeal will be to a Circuit Judge.

This is one of the Jackson reforms that I support. The ‘costs of costs’ has become an Alice in Wonderland feature of English court procedure. Indeed I would go further and extend this procedure to all bills, whatever their value. There is the safeguard of an oral hearing and an appeal to the next tier of the judiciary. The danger is that, rightly or wrongly, High Street solicitors will see this as yet another aspect of the Jackson Report designed to put them out of business while letting firms in the City charge what they want without the same restrictions. That may be unfair, but trust me, that is likely to be the reaction of most solicitors given the bias of the report and the Government’s proposals generally.

Court forms

Provisional Assessment is a form of Detailed Assessment. New forms have been published:

 

Points of Dispute: Precedent G

The new Practice Direction to CPR 47.9 states:-

“8.2                Points of dispute must be short and to the point. They must follow Precedent G in the Schedule of Costs Precedents annexed to this Practice Direction, so far as practicable. They must:

(a) identify any general points or matters of principle which require decision before the individual items in the bill are addressed; and

(b) identify specific points, stating concisely the nature and grounds of dispute.

Once a point has been made it should not be repeated but the item numbers where the point arises should be inserted in the left hand box as shown in Precedent G.”

The new rules relating to Replies to Points of Dispute apply to all Replies that are served after 1 April 2013.

When the receiving party replies to the Points of Dispute there must consider the new Practice Direction to CPR 47.13 which states:-

“12.1      A reply served by the receiving party under Rule 47.13 must be limited to points of principle and concessions only. It must not contain general denials, specific denials or standard form responses.”

Thus a receiving party should not reply to the grounds of dispute that has been raised unless a concession is inserted into the box relating to that point.

Precedent G: Points of Dispute and Reply gives the following example of a point of principle:-

“The claimant was at the time a child/protected person/insolvent and did not have the capacity to authorise the solicitors to bring these proceedings.”

Simon Gibbs, in his excellent blog at http://www.gwslaw.co.uk/blog/ suggests other potential points of principle:-

  • a challenge concerning the indemnity principle;
  • a challenge as to the enforceability of a conditional fee agreement;
  • an argument that proceedings were issued prematurely and that only fixed pre-issue costs should apply.

He raises the question as to whether any of the following are points of principle:-

  • an argument that defective notice was given in relation to an additional liability;
  • the level of the success fee in a case where the success fee is recoverable;
  • incorrect apportionment of VAT.

It should be noted that there is no transitional provision dealing with Points of Dispute and Replies and therefore the new rules apply to any Points of Dispute or Replies served on or after 1 April 2013.

The following are not treated as points of principle, but rather ground of dispute, in Precedent G: Points of Dispute and Reply, and therefore should not be replied to under the new Practice Direction 12.1 to CPR 47.13:-

  • the number of conferences with counsel;
  • the number of fee earners attending each conference;
  • timed attendances on the claimant;
  • time spent on documents;
  • time spent on preparing and checking the bill.

The pre 1 April 2013 Costs Practice Direction concerning Points of Dispute, at CPD 35(3), required that Points of Dispute must “where practicable suggest a figure to be allowed for each item in respect of which a reduction is sought.”

For some reason that has now been dropped from the new Practice Direction to CPR 47.

Extending Time For Service of Points of Dispute

I am grateful to Paul Hughes – http://www.kingschambers.com for material in relation to this piece.

CPR  47.9(2) states that the period for service of Points of Dispute is 21 days after the date of service of the notice of commencement, and, CPR 47.9(3) prescribes that a party in default of service “may not be heard further in the detailed assessment proceedings unless the Court gives permission”.

Thus you are late with service of the Points, but have agreed an extension with the other side,  on the basis that that is allowed to under CPD 35.1 :

“The parties may agree under rule 2.11 (Time limits may be varied by the parties) to extend or shorten the time specified by rule 47.9 for service of the points of dispute.  A party may apply to the appropriate office for an order under rule 3.1(2)(a) to extend or shorten that time.”

On the face of it, this avoids CPR 47.9, but is in fact it does not.

CPD 35.1 expressly (and, insofar as variation by the parties is concerned, only) refers to the power contained in CPR 2.11, which entitles the parties to vary, by written agreement, “the time specified by a rule or by the court for a person to do any actunless the Rules or a practice direction provide otherwise or a court orders otherwise, (my emphasis) and the Rules do provide otherwise as follows:-

CPR 3.8 (3):-

(3)      Where a rule, practice direction or court order –

(a) requires a party to do something within a specified time, and

(b) specifies the consequence of failure to comply,

the time for doing the act in question may not be extended by agreement between the parties.

The fact that CPR 2.11 is subject to CPR 3.8 is clear from a reading of these provisions.  That this is correct is made clear by that reference in brackets to CPR 3.8 after the text of CPR 2.11

So, does CPR 3.8(3) apply to CPR 47.9?

Yes.  The paying party is required to do something – serve Points of Dispute within a specified time, and the Rule specifies the consequences of the failure to comply.

Given the wording of CPR 47.9, it might have been open to argue that as the consequence was qualified (by “unless the Court gives permission”), it was not, in fact, a sanction it all (as it is a discretionary, as opposed to automatic, consequence).  That argument, is ruled out by the judgment in Primus Telecommunications Netherlands BV v Pan European Ltd [2005] EWCA Civ 273 (at paras 58 and 59), which concerned CPR 32.10, but the relevant wording is identical to CPR 47.9.  Primus has been applied in Papa Johns (GB) Ltd v Doyley [2011] EWHC 2621(QB).

Accordingly, there is a clear conflict between the power in CPD 35.1 and the Rules.

Practice Directions cannot override the CPR (See May L.J. in Godwin v Swindon Borough Council [2001] EWCA Civ 1478 at [11]), so the provisions permitting the parties to agree to extend time for service of the points of dispute are of no effect.

Thus the sanction in CPR 47.9 applies, irrespective of whether there has been a purported agreement to extend time, unless the paying party applies for relief from sanctions under CPR 3.9.

The sanction to which the paying party is automatically subject is not being “heard further in the detailed assessment proceedings.”   This means that the paying party can no longer participate, by contributing to a joint statement or being represented at the hearing.

What, if the Points of Dispute that are filed late?  It seems that a paying party may rely upon them (as they predate – and indeed trigger – the debarral of further participation), but only in the sense that a Costs Judge may take them into account in assessing the Bill.

Thus the paying party is required to make an application to Court for an extension of time to avoid the automatic sanction in CPR 47.9.  That application should often be a formality, it is unfortunate that it needs to be made at all.

Commencing Costs Only Proceedings

Gone is the old CPR 44.12A(2):

“Either party to the agreement may start proceedings under this rule…”

Does this mean that paying parties can no longer get things going? If this was a deliberate decision, why was it taken? Are paying parties now unable to take any positive step to progress matters where a receiving party drags their heels?

Costs Officers

The new Practice Direction 3.1 to CPR 47.3 increases the powers of principle court officers from £75,000 including additional liabilities but excluding VAT to £110,000 base costs excluding VAT.

Once you add back in success fees, ATE premiums and VAT the size of the bill that can now be assessed by a principle court officer is £300,000 or more.

For non-principal court officers, the power increases from £30,000 including additional liabilities but excluding VAT to £35,000 base costs excluding VAT. That probably equates to covering some bills with a value of up to £100,000.

You can still object. If both parties agree, the court will automatically relist before a costs judge or district judge (Practice Direction 3.2 to CPR 47.3). Otherwise, an application is to be made to a costs judge or district judge (Practice Direction 3.3 to CPR 47.3).

Time to appeal

New CPR 47.14(7) introduced on 1 April 2013 states:-

“If an assessment is carried out at more than one hearing, then for the purposes of rule 52.4 time for appealing shall not start to run until the conclusion of the final hearing, unless the court orders otherwise.”

Under the section headed “Appeals from Authorised Court Officers in Detailed Assessment Proceedings” is CPR 47.23(1):

“The appellant must file an appeal notice within 21 days after the date of the decision against which it is sought to appeal.”

Note that this is a reference to date of the decision (as was the case prior to 1 April 2013), not the date of the conclusion of the final hearing. This is almost certainly a drafting error as the two conflict. There is no reason the time for appealing against a decision of a costs officer should be stricter that otherwise. Which prevails?

Proportionality

Practice Direction 14.4(2) provides:

“Once the provisional assessment has been carried out the court will return Precedent G (the points of dispute and any reply) with the court’s decisions noted upon it. Within 14 days of receipt of Precedent G the parties must agree the total sum due to the receiving party on the basis of the court’s decisions. If the parties are unable to agree the arithmetic, they must refer the dispute back to the court for a decision on the basis of written submissions”.

There is a problem in the interplay between provisional assessment and proportionality. The parties undertake the arithmetic on the Bill after it has been provisionally assessed. How then does the judge carry out the global proportionality check on the final figure if she does not know what that figure is?

Some courts are issuing their own directions for the parties to inform the court of the initial calculations so that the court can then consider, and where appropriate, apply, proportionality and give a final, proportionate, figure.

However no provision whatsoever is made in the Civil Procedure Rules; they are simply silent on this point.

Master Gordon-Saker, Senior Costs Judge, commenting on Simon Gibbs blog, suggests:-

“There is no reason why, on provisional assessment under the new proportionality rule, the court cannot endorse the bill: “Provisionally assessed. If the costs allowed exceed £x (the proportionate amount of costs) they are limited to that sum.””

He added:-

“I usually provisionally assess the receiving party’s costs of the assessment as part of the provisional assessment. If there is no argument that the receiving party is entitled to costs, the job is done. If there is an argument, because the receiving party has failed to beat a Pt 36 offer, the pp can write in and ask for a different order.”

I hope all courts will adopt this sensible and clear advice. The common sense that emanates from the SCCO is such that maybe they should try all cases on all matters, rather than just dealing with costs.

Part 36 in Costs Proceedings

CPR 47.19 was scrapped with effect from 1 April 2013 and now Part 36 applies to detailed assessment proceedings, but the old CPR 47.19 applies where detailed assessment proceedings were commenced before 1 April 2013, and this is achieved by the Civil Procedure (Amendment) Rules 2013 at s.22(1).

“The provision made by rule 47.20(1) to (5) and (7) in the Schedule (liability for costs of detailed assessment proceedings) does not apply to detailed assessments commenced before 1 April 2013 and in relation to such detailed assessments, rules 47.18 and 47.19 as they were in force immediately before 1 April 2013 apply instead.”

Where a Part 47.19 offer was made prior to 1 April 2013, but notice of commencement was not served until 1 April 2013 or after, then the new Part 36 provisions apply, but it is not clear what happens in relation to a successful CPR 47.19 offer made before 1 April 2013 in such circumstances.

Since 1 April 2013, CPR 47.19 offers have disappeared and Part 36 applies, incorporated into detailed assessment proceedings by virtue of CPR 47.20(4), and the relevant part now reads:-

“Costs consequences following detailed assessment

36.14

(1) This rule applies where upon completion of the detailed assessment.

(a) a receiving party fails to obtain an outcome more advantageous that a paying party’s Part 36 offer; …

(b) the outcome of the detailed assessment hearing is at least as advantageous to the receiving party as the proposals contained in a receiving party’s Part 36 offer.

(2) The court will, unless it considers it unjust to do so, order that the paying party is entitled to –

(a) his costs from the date on which the relevant period expired; and

(b) interest on those costs.

(3) …the court will, unless it considers unjust to do so, order that the receiving party is entitled to –

(a) interest on the whole or part of any sum of money (excluding interest) awarded at a rate not exceeding 10% above base rate for some or all of the period starting with the date on which the relevant period expired;

(b) costs on the indemnity basis from the date on which the relevant period expired;

(c) interest on those costs at a rate not exceeding 10% above base rate and

(d) an additional amount, which shall not exceed £75,000, calculated by applying the prescribed percentage set out below to an amount which is –

(i) where the claim is or includes a money claim, the sum awarded to the claimant by the court

Amount awarded by the court Prescribed percentage
up to £500,000 10% of the amount awarded;
Above £500,000 up to £1,000,000 10% of the first £500,000 and 5% of any amount above that figure”

Subparagraph (d)(i) appears to be drafted widely enough to cover a claim for costs. The successful receiving party therefore gets a 10% uplift on whatever the bill is assessed at plus the other benefits listed at (a) to (c).

The fact that the Judge does not make the final calculations also causes obvious problems with Part 36, specifically how does the Judge know whether a party has succeeded in relation to a Part 36 offer?

If the Judge does not know who or who has not won on Part 36, then how does the Judge know what decision to make in relation to the costs of the assessment?

A receiving party who matches or beats its own Part 36 offer receives a 10% uplift on costs, up to a maximum uplift of £75,000, calculated in the same way as the Part 36 uplift on damages. Care needs to be taken in drafting the retainer to ensure that you entitle yourself to this sum, as costs belong to the client and an additional sum cannot be charged in the absence of clear agreement.

As to the general concept of Part 36 in assessment proceedings I leave that to Simon Gibbs:-

“Let me tell you a story.

Claimant for, Paye Cash & Praye are currently negotiating with defendant costs firm Kermit & Co over a £10,000 bill. Points of Dispute and Replies have been served.

On 2 April 2013 Paye Cash & Praye make a Part 36 offer to settle those costs for £7,000.

Kermit & Co accept the offer on 3 April 2013.

Acceptance of the offer creates a deemed costs order under the new CPR 44.9(1)(b). Under CPR 36.10(1) this means the receiving party is entitled to their costs of the assessment proceedings up to the date on which notice of acceptance was served.

The new CPR 47.20(5) states:

“The court will usually summarily assess the costs of detailed assessment proceedings at the conclusion of those proceedings”

However, the new CPR 44.1(1) clearly states:

“‘summary assessment’ means the procedure whereby costs are assessed by the judge who has heard the case or application”

In this example the matter has never come before a judge and summary assessment is not appropriate. All that’s left is detailed assessment proceedings in the absence of agreement.

In reliance on the deemed costs order Paye Cash & Praye serve a Notice of Commencement and new bill in respect of their assessment costs on 10 April 2013. (As an aside, where a matter settles prior to a provisional assessment being carried out, but the bill is for less than £75,000, does the £1,500 cap apply?) The costs claimed are £1,000. Service of the new Notice of Commencement amounts to commencement of new detailed assessment proceedings.

Kermit & Co, rather taken back by this turn of events, make a Part 36 offer of £800 in respect of those costs on 17 April 2013. No response to that offer is received within 21 days of service of the Notice of Commencement forcing Kermit & Co to serve Points of Dispute to the bill, which they serve on 1 May 2013. On 3 May 2013 Paye Cash & Praye serve Replies. On 4 May 2013 Paye Cash & Praye accept the Part 36 offer of £800. As the offer has been accepted within 21 days of it being made the Claimant is entitled to their costs of the new assessment proceedings up to the date on which notice of acceptance was served, including the period covering preparation of the new Replies.

Acceptance of the new Part 36 offer also creates a further deemed order for costs.

In reliance on the new deemed costs order Paye Cash & Praye serve a Notice of Commencement and new bill in respect of their further detailed assessment costs considering the Defendant’s Points of Dispute, drafting Replies and considering the Part 36 offer.

And so on, for ever.”

On his blog on 22 January 2015 Simon Gibbs had this to say:-

“The rule concerning filing of statements of costs is a mess. PD 47 para.14.3(c) refers to filing “a [in the singular] statement of the costs claimed in respect of the detailed assessment” implying that it is just the receiving party that will file a statement. What if the paying party has won? There is no requirement to serve the statement of costs on the opponent. The statement of costs will have to be prepared before the provisional assessment has occurred and before the parties have agreed the arithmetic. How much time should go in the statement of costs for the post-assessment number crunching and trying to agree the figures with the other side, when the work has yet to be done? For a Bill at the top end of the £75,000 figure, this can be time consuming if there have been, for example, amendments to the hourly rates and VAT figures. What if the parties cannot agree the figures and need to make written submissions to the court. How is this time dealt with in the statement?

Post-assessment, the parties “must” agree the total sum due to the receiving party on the basis of the court’s decisions within 14 days of receipt of Precedent G. But they then have 21 days to request an oral hearing. Is it necessary to try to agree the exact figures if a party is going to request an oral hearing in any event?”

Offers

Contrary to what some commentators have said, there is no requirement on a paying party to make an offer, either under Part 36 or otherwise.

The new Practice Direction 8.3 to CPR 47.9 states:

“The paying party must state in an open letter accompanying the points of dispute what sum, if any, (my italics) that party offers to pay in settlement of the total costs claimed. The paying party may also make an offer under Part 36.”

Thus there is no requirement to make an offer; if there was, then the words “if any” would be superfluous. However, some claimants are, presumably through ignorance, taking this point and so it may save time to make it clear in writing that no offer is being made if that be the case.

I have not come across anyone who can explain to me what is the purpose of the open offer, but those drafting the Civil Procedure Rules and the Practice Directions move in mysterious ways.

Clearly the right to make a Calderbank offer in costs proceedings – that is an offer “without prejudice save as to the costs of assessment” remains as CPR 36.1(2) reads:

“Nothing in this Section prevents a party making an offer to settle in whatever way he chooses, but if the offer is not made in accordance with rule 36.2, it will not have the consequences specified in rules 36.10, 36.11 and 36.14.”

Will a party who wins on its open offer ever not be awarded the costs of the detailed assessment?

Practice Direction 14.3(d) to CPR 47.15 states that when a party request a provisional assessment, it must file with the court:

“the offers made (those marked “without prejudice save as to costs” or made under Part 36 must be contained in a sealed envelope, marked “Part 36 or similar offers” but not indicating which party or parties have made them).”

Thus it is clear that the rules envisage offers other than those under Part 36 being relevant to the costs of assessment.

The drafters of the new rules appear not to understand the difference between an offer that is “without prejudice save as to the costs of assessment” and one made “without prejudice save as to costs.”

PD 47 para.13.10 allows a party to vary their bill:

“(1) If a party wishes to vary that party’s bill of costs, points of dispute or a reply, an amended or supplementary document must be filed with the court and copies of it must be served on all other relevant parties.

(2) Permission is not required to vary a bill of costs, points of dispute or a reply but the court may disallow the variation or permit it only upon conditions, including conditions as to the payment of any costs caused or wasted by the variation.”

It is in the court’s discretion as to whether to disallow the variation. For a case proceeding to a detailed assessment hearing this is straightforward enough. The court can rule on this issue, if it is contentious, at the start of the hearing.

But what about a case going to provisional assessment? Does that require an application is advance of the provisional assessment, despite permission not being required to make the variation itself? Will the court even know there has been a variation if only the amended bill is filed with the court?

Costs Management Orders

Where costs are not expected to exceed £25,000 only the first page of the nine pages of Form H Costs Budget needs to be completed.

Now that provisional assessment is to cover all cases of £75,000 or less it remains to be seen whether the exemption from completing the full Costs Budget form will also rise to £75,000.

Otherwise there is the prospect of a very detailed budget and a Costs Management Order all ending in a paper-only assessment for those bills between £25,000 and £75,000.

Qualified One Way Costs Shifting (QOCS)

QOCS is widely regarded as the weakest part of the Jackson Reforms, and as the old joke has it, that is against some pretty stiff opposition. The unanswered question here is whether the costs risk of failing to achieve 20% more than the provisional assessment figure applies in QOCS cases, that is all personal injury cases of all kinds. On the face of it, it does not, as the exceptions to QOCS are limited, and this is not one of them.

Precisely the same point applies in relation to Fixed Recoverable Costs, which has the same 20% escape rule; here the rich irony is that Fixed Recoverable Costs apply only to personal injury cases, just like QOCS.

Oh dear! It cannot possibly be the case, can it, that Fixed Recoverable Costs were announced out of the blue, without thinking of this can it? Can it?

Obviously everything else in relation to this exercise has been checked and checked again by the Ministry of Justice until perfect. See for example Precedent A: Model Form Bill of Costs.

I set out below our annotations. Can you spot any more errors?

Wipe your hand across your mouth, and laugh;

The worlds revolve like ancient women

Gathering fuel in vacant lots.

T. S. Eliot: Preludes

                                 

                       

 

SCHEDULE OF COSTS PRECEDENTS

PRECEDENT A: MODEL FORM OF BILL OF COSTS

2011 – B – 9999

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

BRIGHTON DISTRICT REGISTRY

BETWEEN

AB

Claimant

– and –

CD

Defendant

__________________________________________

CLAIMANT’S BILL OF COSTS TO BE ASSESSED PURSUANT

TO THE ORDER DATED 2ND APRIL 2013

_________________________________________

VAT NO. 33 4404 90

In these proceedings the claimant sought compensation for personal injuries and other losses suffered in a road accident which occurred on 1 January 2011 near the junction between Bolingbroke Lane and Regency Road, Brighton, East Sussex. The claimant had been travelling as a front seat passenger in a car driven by the defendant. The claimant suffered severe injuries when, because of the defendant’s negligence, the car left the road and collided with a brick wall.

The defendant was later convicted of various offences arising out of the accident including careless driving and driving under the influence of drink or drugs.

In the civil action the defendant alleged that immediately before the car journey began the claimant had known that the defendant was under the influence of alcohol and therefore consented to the risk of injury or was contributory negligent as to it. It was also alleged that, immediately before the accident occurred, the claimant wrongfully took control of the steering wheel so causing the accident to occur.

The claimant first instructed solicitors, E F & Co, in this matter in July 2011. The claim form was issued in October 2011 and in February 2012 the proceedings were listed for a two day trial commencing 25th July 2012. At the trial the defendant was found liable but the compensation was reduced by 25% to take account of contributory negligence by the claimant. The claimant was awarded a total of £78,256.83 plus £1,207.16 interest plus costs.

The claimant instructed E F & Co under a retainer which specifies the following hourly rates.

Partner – £217 per hour plus VAT

Assistant Solicitor – £192 per hour plus VAT

Other fee earners – £118 per hour plus VAT

Except where the contrary is stated the proceedings were conducted on behalf of the claimant by an assistant solicitor, admitted November 2008.

Item No.

Description of work done

VAT

£

Disbursements

£

Profit Costs

£

8th July 2011 – E F & Co instructed

1.

7th October 2011 – Claim issued

2.

Issue fee

685.00

21st October 2011 – Particulars of claim served
25th November 2011 – time for service of defence extended by agreement to 14 January 2012

3.

Fee on allocation

220.00

20th January 2012 – case allocated to multi-track
9th February 2012 – Case management conference at which costs were awarded to the claimant and the costs were summarily assessed at £400 (paid on 24th February 2012)
23rd February 2012 – Claimant’s list of documents
12th April 2012 – Part 36 Offer £25,500
13th April 2012 – Filing pre-trial checklist

4.

Paid listing fee

110.00

5.

Paid hearing fee

1,090.00

25th July 2012 – Attending first day of trial: adjourned part heard
Engaged in court 5.0 hours

£960.00

Engaged in conference 0.75 hours

£144.00

Travel and waiting 1.5 hours

£288.00

6.

Total solicitors fee for attending

1,392.00

7.

Counsel’s fee for trial (Miss GH)

400.00

2,000.00

8.

Fee of expert witness (Dr IJ)

850.00

9.

Expenses of witnesses of fact

84.00

26th July 2012 – Attending second day of trial when judgment was given for the claimant in the sum of £78,256.53 plus £1,207.16 interest plus costs
To summary:

400.00

5,039.00

1,392.00

Item No.

Description of work done

VAT

£

Disburse-ments

£

Profit Costs

£

Engaged in court 3.0 hours

£576.00

Engaged in conference 1.5 hours

£288.00

Travel and waiting 1.5 hours

£288.00

10.

Total solicitor’s fee for attending

1,152.00

11.

Counsel’s fee for second day (Miss GH)

190.00

950.00

Claimant

12.

8th July 2011 – First instructions: 0.75 hours by Partner:Other timed attendances in person and by telephone – See Schedule 1

162.75

13.

Total fee for Schedule 1 – 7.5 hours

1,440.00

14.

Routine letters out and telephone calls – 29 (17+12) total fee

556.80

Witnesses of fact
Timed attendances in person, by letter out and by telephone – See Schedule 2

15.

Total fee for Schedule 2 – 5.2 hours

998.40

16.

Routine letters out, emails and telephone calls – 8 (4+2+2) total fee

153.60

17.

Paid travelling on 10th October 2011

4.59

22.96

Medical Expert (Dr IJ)

18.

11 September 2011 – long letter out 0.33 hours fee

63.36

19.

31st January 2012 – long letter out 0.25 hours fee

48.00

20.

23rd May 2012 – telephone call 0.2 hours fee

38.40

21.

Routine letters out and telephone calls – 10 (6+4) total fee

192.00

22.

Dr IJ’s fee for report

500.00

Defendant and his solicitor

23.

8th July 2011 – timed letter sent 0.5 hours fee

96.00

24.

19th February 2012 – telephone call 0.25 hours fee

48.00

25.

Routine letters out and telephone calls – 24 (18+6) total fee

460.80

Communications with the court

26.

Routine letters out and telephone calls – 9 (8+1) total fee

172.80

To summary:

194.59

1,472.96

5,582.91

Item No.

Description of work done

VAT

£

Disburse-ments

£

Profit Costs

£

Communications with counsel

27.

Routine letters out, emails and telephone calls – 19 (4+7+8) total fee

364.80

Work done on documents

28.

Timed attendance – see Schedule 3
Total fees for Schedule 3 – 0.75 hours at £217, 44.5 hours at £192, 12 hours at £118

10,122.75

Work done on negotiations
23rd March 2012 – meeting at offices of solicitors for the Defendant
Engaged 1.5 hours

£288

Travel and waiting – 1.25 hours

£240

29.

Total fee for meeting

528.00

Other work done
Preparing and checking bill
Engaged solicitor – 1 hour

£192

Engaged: Costs draftsman – 4 hours (at £110)

£480£440

30.

Total fee on other work done

672.00

632.00

31.

VAT on solicitor’s fees (20% of £18,662.46£18,622.46)

3,731.49

3,724.49

32.

VAT on Counsel’s fees (20% of £3,950.00£2,950.00)

790.00

CHARGED WITHIN BILL
To summary:

4,521.49

3,724.49

11,687.55

11,647.55

Summary
Page 2

400.00

5,039.00

1,392.00

Page 3

194.59

1,472.96

5,582.91

Page 4

4,521.49

11,687.55

3,724.49

11,647.55

Totals: 5,116.084,319.08

6,511.96

18,662.4618,622.46
Grand Total 30,290.5029,453.50

                            

            

COMMENTS ON PREVIOUS BLOGS

Sue: What a mess! Kerry, may I ask you advice on one issue? As stated above – where a Part 47.19 offer was made prior to 1 April 2013, but notice of commencement was not served until 1 April 2013 or after, then the new Part 36 provisions apply. I have a case where a very healthy Part 47.19 offer was made before 1 April 2013. The NoC was served post 1.4.13 and Points have just been drafted. I do not wish to make a Part 36 offer that, if accepted, would entitle the Claimant to his costs to date. I believe he is at risk on the pre Pods Part 47.19 offer. Any suggestions?

Kerry’s reply:

Part 36 is now the applicable law – CPR 47.19 is of no application where notice of commencement not served until after 1 April 2013, and obviously you do not want to make a Part 36 offer for the reasons stated.

However the court can take in to account non-Part 36 offers, and given that your offer was made under the appropriate law at the time, the court should indeed take that in to account and give it weight.

It maybe worth you writing to the other side to put them on notice of your intention to argue that and to seek costs if they fail to beat the CPR 47.19 offer.

The transitional provisions, or rather the lack of them, are a shambles throughout the Jackson reforms.

Kerry

Paul: Hi Kerry

We have received word from Court that the figure for provisional assessment is £1,500.00 PLUS disbursements and VAT. The court will release full clarification next month.

Kerry’s reply:

Hi Paul

That is interesting.The wording is sufficiently vague that it could be interpreted as £1,500 plus VAT and disbursements,or £1,500 in total.

Please keep me informed.

Thanks

Kerry

Sue King: I know we have now had clarification that the £1500 is exclusive of VAT and the Court fee but am I correct in assuming that it is inclusive of the base costs AND any applicable success fee???
Thanks, Sue

Kerry’s reply: Hi Sue
The Civil Procedure Rules have been amended and CPR47.15(5) now states:-
“In proceedings which do not go beyond provisional assessment, the maximum amount the court will award to any party as costs of the assessment (other than the costs of drafting the bill of costs) is £1,500 together with any VAT thereon and any court fees paid by that party.”
Thus it is clear that although VAT and court fees are not included within the maximum of £1,500.00 all other costs, that is base costs and success fees must be included.
The costs of drafting the bill of costs, that is base costs and any success fee, are not included within the maximum £1,500.00 that the court can award.
Kerry

Hannah Lambe: Hi Kerry, for those matters now destined for provisional assessment are we to still use the current N252 form and if so, has the fixed costs and court fee changed or is it still okay to put £140 on top of the bill total?

Kerry’s reply: Hannah

Paragraph 5.2(a) Practice Direction 47 on CPR 47.6 states that the current Form N252 as well as Form N258 under CPR 47.15(3) confirming that notice to commence assessment has been given will have to be completed where a request for provisional/detailed assessment has been made.

Paragraph 5.3 Practice Direction 47 provides that the following details must be included in a notice of commencement, otherwise known as Form N252:
a) the total amount of the costs claimed in the bill; and
b) the extra sum payable by way of fixed costs and court fees if a default cost certificate is obtained.

In calculating the fixed sum figure CPR 47.11(3) states:
“Where a receiving party obtains a default costs certificate, the costs payable to that party for the commencement of detailed assessment proceedings will be the sum set out in Practice Direction 47”.

Paragraph 10.7 Practice Direction 47 states:

“Unless paragraph 1.2 of Practice Direction 45 (Fixed Costs in Small Claims) applies or unless the court orders otherwise, the fixed costs to be included in a default costs certificate are £80 plus a sum equal to any appropriate court fee payable on the issue of the certificate”.

If the claim is issued in the small claims track paragraph 1.2 Practice Direction 45 provides that fixed costs are those detailed in CPR 45.2 and are determined by the value of the claim. Thus where a claim is not issued in the small track fixed costs for a default costs certificate are £80.

Paragraph 10.8 Practice Direction 47 also provides that the fixed costs included in a certificate must not exceed the maximum sum specified for costs and court fees in the notice of commencement.

In relation to the court fee, as paragraph 5.3(b) Practice Direction 47 applies to a default costs certificate, the relevant court fee will be the fee for the request to issue a default costs certificate. This is £60.

Provided that paragraph 1.2 of Practice Direction 45 does not apply the total sum for fixed costs if a default judgment is obtained is £140.

Kerry

Pip Riley: Where can we find the practice direction 47 as it is not on the justice.gov website in Civil Procedure Rules yet?

Kerry’s reply: 60th Update – it is on the website – looking at it now. Also there is a link to it in the Jackson overview blog.

Kerry

Mark: Hi Kerry,

Are you aware of whether there are any transitional provisions for the situation where costs proceedings are commenced after 1.4.2013 but the matter was settled (in pre-action) prior to 1.4.2013 and the Claimant has the benefit of CFA/ATE.

Of particular interest is whether provisional assessment remains an option where, but for the success fee, the base costs plus disbursements would have fallen below the £75,000 limit.

Thanks

Kerry’s reply:

The new assessment regime applies to any case, however old, where costs proceedings are commenced on or after 1 April 2013. The existence of a recoverable success fee and ATE insurance do not affect this.

Provisional assessment is a form of detailed assessment that applies where the bill is £75,000 or below (CPR 47.15(1) and PD 14.1) including any success fee. As I understand it the key figure is the overall total.

Kerry

Craig S:

Kerry,

The major concern regarding Replies appears to me to be that receiving parties are totally reliant on the Costs Officer’s willingness to delve behind the PoDs. As per your suggestion on papers to lodge, they may not even have the file of papers to consider such objections in any reasonable detail. What prevents a paying party making spurious comments to sow a seed of doubt as to the reasonableness of the costs or making ridiculous offers for specific or general costs within the bill? The answer must be nothing, as unless a point of principle can be found then no reply would be made to any such objections, in accordance with PD to CPR 47.13.

It seems a wholly skewed process when the receiving party may legitimately have no concessions to make and cannot provide any form of rebuttal to objections raised unless that “point of principle” is found. Proportionality arguments cannot be responded to unless the figure work is wrong (thus providing a point of principle one presumes?); paying party paints a picture of simplicity for a matter settling for say £70k damages to attempt to justify Grade C rates, no reply can be made; paying party offers 20% of all time communications on Claimant, no reply can be offered, who would bet against an arbitrary minimum of 20-30% being removed as a halfway house?; same applies to document item of course and a return to the old days of you say 10 hours, bill says 30 hours, 20 hours allowed as a compromise seems inevitable.

The list goes on doesn’t it? Any suggestions as to how to provide the CO with a fuller picture without falling foul of the precedent and CPD and CPR? I would certainly welcome any steer as representing non cost building and honest firms has, it seems, become much harder and unfairly so.

Thanks

Kerry’s reply:

These problems have simply not occurred in the pilot. The key is to get across the issues properly in the original bill, with a detailed opening narrative, as I have always done. Replies should only be necessary if you have failed to anticipate the Points of Dispute. Don’t wait for proportionality to be raised – deal with it! Don’t wait for level of fee-earner to be raised – justify it in your bill! Far too many substantial bills just consist of figures, with no proper justification.

Overall the assessment of my firm’s bills has been fair. Most District Judges were solicitors in practice, and Deputy DJs still are. I don’t buy the idea that DJs and Costs Officers hack bills for no good reason. Recently, for another reason, I have seen many what are frankly ludicrously high claimants’ bills.

I approve of the new system and my advice is to do a much fuller narrative – ours is normally one to two pages of A4.

Kind regards

Kerry

Craig S:

Thanks for that Kerry, I am encouraged by your own experience of Provisional Assessments. I agree a full and detailed narrative is (and always has been) necessary and on reflection I guess the same hope remains that the DJ/DDJ/CO you used to sit before has actually read the narrative and considered the papers. The only difference now being that you are not present to see if that is indeed the case.

I shall have faith in the narrative and strong file of papers and hope the PA is a reasonable and fair one.

Regards,

Craig

Kerry’s reply:

Thanks Craig

Keep me posted. Remember too that provisional assessment should be dealt with in 6 weeks. 🙂

Kerry

Sue King:

Hi, I have just had the result of my first provisional assessment back from my local Court. The assessment took place on 27th September 2013. After numerous letters and calls to the Court and at least three personal visits to the Court office I collected the provisionally assessed bill from them on 21st November! I wonder if this is going to be the norm?? Incidentally when I double checked with the Court a few days prior to the hearing whether or not my complete file was required I was handed an Order that had just been made requesting the file. If I had not gone to the Court office that day the Order would probably not have been received at my office in time to deal with the request.

How is everyone else getting on?

Thanks

Kerry’s reply: Thanks for this. What are other people’s experience of Provisional Assessment?

John Ibbotson:

I just got absolutely slaughtered on one.

Am thinking of seeking an oral hearing.

Did the “20% rule” make it into the rules, or was it only in the pilots?

Kerry’s reply:

The “20% rule” can now be found at CPR 47.15.(10).

Provisional Assessment
47.15
(10) Any party which has requested an oral hearing, will pay the costs of and incidental to that hearing unless –
(a) it achieves an adjustment in its own favour by 20% or more of the sum provisionally assessed; or
(b) the court otherwise orders.

J-P:

Kerry,

I’ve been on one Oral Hearing at which the Judge refused to look at the full file of papers filed 7 days in advance of the hearing or indeed allow me to expand on any issues unless they were already referred to in the bill of costs and Replies! His reasoning was that as the file was not submitted with the request for PA only the papers filed with the request for PA could be relied upon at the Oral Hearing. Very unfair but I did manage to get well over a 20% increase. Have you come across this situation?

Kerry’s reply:

No, I have not and it seems to me to be a fundamentally flawed approach to what is after all a detailed assessment. No guidelines have been given and the provisional assessment limit was tripled from £25,000 to £75,000 without warning or consultation.

The SCCO is very hostile to provisional assessment.

Sounds as though in your particular case All’s Well that Ends Well. 🙂

J-P: Many thanks Kerry

Kerry’s reply: Pleasure 🙂

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Written by kerryunderwood

March 6, 2015 at 9:51 am

Posted in Uncategorized

18 Responses

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  1. My experience with PA is that I have been broadly happy that the assessed costs figure that comes back from the court is usually fair.

    The main problems are:-

    1. You send your bill off to the court, then wait six months. Defendants know this so they make low offers in the hope that you will accept for the sake of cashflow. If you don’t settle at the low figure you then have to cajole/threaten/apply to the court to force them to make a payment on account.

    2. The process after you bill finally comes back is rather drawn out. You get your bill covered with often illegible scribble, you then have to add it up, check your opponent agrees, the agree the interest and assessment costs. This could be streamlined.

    PA must be the least successful attempt to speed up litigation ever.

    • If you are regularly waiting 6 months for a determination of costs then surely making prompt interim costs certificate applications will relieve the cash-flow burden.

      I my experience, such applications are listed within 3-5 weeks but in any event the Defendant’s will pay up at least as much as their offer prior to any hearing taking place.

      Anon

      March 6, 2015 at 10:46 am

    • Julian

      I agree and so do most judges; they are simply not being given enough time and so the system is falling in to disrepute, which is a shame as it was one of Lord Justice Jackson’s better ideas.

      Kerry

      kerryunderwood

      March 6, 2015 at 5:09 pm

  2. […] PROVISIONAL ASSESSMENT […]

  3. Kerry.

    I act for a paying party on a bill below £75.000.00, the matter has been listed for a provisional assessment, there are substantive issues regarding certification, work claimed which was not under taken, are you able to give me some guidance on the process for requesting a detailed assessment as opposed to letting the matter run to a provisional.

    Regards.

    John

    John Robins

    August 3, 2015 at 11:57 am

    • John
      Provisional assessment is a form of detailed assessment; I presume that what you are seeking is an oral hearing. You have no right to such a hearing if the bill does not exceed £75,000.

      CPR 47.15(6) provides:
      “(6) The court may at any time decide that the matter is unsuitable for a provisional assessment and may give directions for the matter to be listed for hearing. The matter will then proceed under rule 47.14 without modification.”

      Thus the court, but not the parties, may decide that a matter is unsuitable for provisional assessment and therefore you should write to the court setting out your reasons as to why the court should exercise its discretion under CPR 47.15(6). However I would not rate your chances highly; this is effectively a proportionality rule, that is whatever the circumstances a sub-£75,000 bill does not warrant an oral hearing.

      CPR 47.15(7) sets out the procedure for applying for an oral hearing AFTER Provisional Assessment; there is no mechanism for applying for an oral hearing in advance of detailed assessment.

      The Practice Direction does not take this point any further. The whole point is that it is a provisional, not final, assessment and so you have no inherent right to avoid the process in advance.

      Kerry

      kerryunderwood

      August 4, 2015 at 4:01 pm

  4. Costs have gone to provisional assessment, been agreed and paid, but the costs of the provisional assessment itself remain. These are claimed at £2,800, but the rules provide that a maximum of £1,500.00 + £300 VAT is recoverable, plus the court fee of £675.00.

    The court has a backlog and may not get to the costs of assessment for a while.

    Is there any benefit in trying to negotiate the costs informally? If so, can Part 36 offers be used?

    Conversely, are there any drawbacks/pitfalls in simply awaiting the court’s attention?

    (Not a major claim and the under-£75k rules apply.)

    Mac McCaskill

    December 8, 2015 at 3:27 pm

    • You can always negotiate and can always make a Part 36 offer, but as you say the costs are capped and I cannot see why the paying party should agree to pay any more than that capped figure, or indeed why more than the maximum has been claimed.

      Kerry

      kerryunderwood

      December 8, 2015 at 4:42 pm

  5. Hi Kerry,

    Is there any rule specifying to which Court an application for Provisional Assessment should be made?

    We have had an application for PA returned to us from the CCMCC (Salford) quoting Practice Direction 70, Section II, Paragraph 9 that an application should be “filed at the County Court hearing centre for the district in which the judgment debtor resides or carries on business.” However, PD70, Sec II, Para 9 deals with applications made under Parts 71, 72 and 73 (applications for orders to attend Court, third party debt orders and charging orders respectively). I can’t see that Part 71 applies as we are not requesting anyone to attend Court because parties are not required to attend a PA.

    The matter does not appear to have been transferred to another Court at any juncture.

    What are your thoughts on this? Should we return the application for PA to the CCMCC or should we instead apply to the judgment debtors local Court?

    Paul

    March 23, 2016 at 11:35 am

    • Paul

      Part 47 deals with the procedure for assessment of costs and CPR 47.4 deals with the venue for detailed assessment proceedings and reads as follows:-

      “(1) All applications and requests in detailed assessment proceedings must be made to or filed at the appropriate office.

      (Practice Direction 47 sets out the meaning of ‘appropriate office’ in any particular case)

      (2) The court may direct that the appropriate office is to be the Costs Office.

      (3) In the County Court, a court may direct that another County Court hearing centre is to be the appropriate office.

      (4) A direction under paragraph (3) may be made without proceedings being transferred to that court.

      (Rule 30.2 makes provision for the transfer within the County Court of proceedings for detailed assessment of costs.)”

      CPR 47.15 deals with Provisional Assessment, which is a species of Detailed Assessment as is made clear by CPR 47.15(1) which reads:-

      “(1) This rule applies to any detailed assessment proceedings commenced in the High Court or the County Court on or after 1 April 2013 in which the costs claimed are the amount set out in paragraph 14.1 of the practice direction supplementing this Part, or less.

      (2) In proceedings to which this rule applies, the parties must comply with the procedure set out in Part 47 as modified by paragraph 14 Practice Direction 47.”

      Nothing in the rest of CPR 47.15 affects the venue.

      Practice Direction 47.4 states:-

      “4.1. For the purposes of rule 47.4(1) the ‘appropriate office’ means—

      (a) the district registry or County Court hearing centre in which the case was being dealt with when the judgment or order was made or the event occurred which gave rise to the right to assessment, or to which it has subsequently been transferred;

      (b) where a tribunal, person or other body makes an order for the detailed assessment of costs, a County Court hearing centre (subject to paragraph 4.2); or

      (c) in all other cases, including Court of Appeal cases, the Costs Office.”

      Paragraph 4.2 applies to certain London courts.

      I do not understand your reference to Practice Direction 70. That is entirely to do with enforcement and nothing whatsoever to do with provisional assessment.

      Kerry

      kerryunderwood

      March 29, 2016 at 11:36 am

      • Hi Kerry

        Many thanks for your response. It is very helpful. It was the CCMCC (Salford) that had made the reference to Practice Direction 70 when they returned our application for PA, stating that an application should be “filed at the County Court hearing centre for the district in which the judgment debtor resides or carries on business.” We too, could not understand the reference to this Practice Direction in the circumstances, which is what caused the confusion.

        The CCMCC appear to be suggesting that we should send our application to the Defendant’s local Court. Despite their reference to Practice Direction 70, could this be considered as the CCMCC’s direction that another County Court hearing centre is to be the appropriate office?

        Should we send the application to the Defendant’s local Court or would you advise we return our application for PA to the CCMCC?

        Paul

        Paul

        March 29, 2016 at 12:30 pm

      • Paul

        I think that they have got hopelessly confused and think that provisional assessment is some kind of enforcement so just proceed in the usual way.

        Kerry

        kerryunderwood

        March 29, 2016 at 1:01 pm

      • Thanks very much for your help, Kerry. Greatly appreciated.

        Paul

        March 29, 2016 at 1:07 pm

  6. Pleasure. Good luck!

    kerryunderwood

    March 29, 2016 at 1:09 pm

  7. Hi, Kerry,

    What is your opinion on issuing an interim payment application in conjunction with the Part 8 claim form on a matter that falls under the PA regime?

    Samantha Llyons

    April 25, 2016 at 11:11 am

    • CPR 47.16 applies – see PD 47 para 15.14.2(1). Application is made under CPR 23.

      Kerry

      kerryunderwood

      May 17, 2016 at 5:42 pm


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