Kerry Underwood

APPEAL AGAINST PROVISIONAL ASSESSMENT LIMITED TO POINTS RAISED AT INITIAL ORAL HEARING CHALLENGING ASSESSMENT

with 4 comments


The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

 

In

PME v The Scout Association [2019] EWHC 3421 (QB)

the High Court dismissed an appeal against the decision of a Master in the Senior Court Costs Office and  held that parties wishing to challenge a provisional assessment by an Authorised Cost Officer must first request an oral hearing under CPR 47.15(7), setting out the items they wish to challenge.

Parties may subsequently appeal under CPR 47.23, by way of re-hearing, the decision made by the Authorised Cost Officer at the oral hearing in relation to those items.

However, the court confirmed that the appeal process is not an opportunity for a party to demand a re-hearing of decisions which they previously accepted and did not challenge at the oral hearing.

The judge considered the wording of CPR 47.24, the court’s powers on appeal from an Authorised Cost Officer, in particular the meaning of the obligation to “re-hear the proceedings which gave rise to the decision appealed against”.

In the judge’s view, a provisional assessment was not a “hearing”; a  “re-hearing” was a further hearing of a “hearing” that had taken place.

This was the oral hearing under CPR 47.15(7) at which a provisional assessment was challenged, and not the provisional assessment on paper.

This was in spite of the fact that Practice Direction 47.14.4(2) referred to the results of the paper provisional assessment as a “decision” and that CPR 47.21 enabled a party to appeal “against a decision” of an Authorised Cost Officer in detailed assessment proceedings.

The judge suggested that if the wording needed to be explained, the words in the Practice Direction were “infelicitously chosen” and held that a provisional assessment on paper did not give rise to a “decision” which could be the subject of an appeal.

It might better be described as provisional assessment of items on the bill which became binding on the parties if no oral hearing was requested, or if an oral hearing was requested, which gave rise to decisions capable of being appealed.

The Master also rejected the argument that an Authorised Cost Officer, cannot conduct a provisional assessment and that point was not pursued on appeal.

Written by kerryunderwood

December 20, 2019 at 3:32 pm

Posted in Uncategorized

4 Responses

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  1. This is an extraordinary decision, and I can’t believe was what was in mind when the rules were drawn up. So the only way to be guaranteed a rehearing is to request an oral hearing on everything. At the oral hearing, the paying party has to beat the provisional figure by 20% or will be liable for the incidental costs of the oral hearing. The oral hearing will be heard by the same person who did the provisional assessment, who can’t be impartial and, as we all are to an extent, will be defensive of their initial decision. If the oral hearing goes against the paying party and it goes to a rehearing, this rehearing will not be blind and could well be prejudiced by the initial provisional assessment and oral hearing. Because any possible questions will need to be raised at an oral hearing to allow a future rehearing there is a tremendous scope for increased and wasted time and money. Much fairer to allow a fully independent rehearing of any issues from the provisional assessment, regardless of whether they have been included in an oral hearing.

    This is another example of a costs decision going against the paying party and in favour of the receiving party, which is not the way the rules are intended to work. In my view, as long as you have ex-lawyers making decisions about costs this will continue to be the case.

    Anonymous

    December 29, 2019 at 12:02 am

    • Do not agree that decisions are generally tilted against paying parties, but I do think that the whole procedure for assessment of bills, both between the parties and solicitor and own client, needs a radical overhaul and simplification. The massive extension of fixed costs will help greatly.

      Kerry

      kerryunderwood

      January 2, 2020 at 10:18 am

      • Thanks, agree fixed costs should solve a lot. Also needs to be a fair appeal process allowed in costs matters, including full independent reheating where needed, and an end to cost officers hearing appeals on their own decisions. Recoverable costs should be capped at a small percentage of the amount in dispute.

        In most cases I read about the judge makes a decision which makes costs very high. Will be interesting to see if this decision is appealed further.

        Anonymous

        January 3, 2020 at 6:10 pm

      • No-one should hear an appeal against their own decision in any walk of life. Have no problem with costs being capped where not fixed.

        Kerry

        kerryunderwood

        January 3, 2020 at 6:15 pm


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