Detailed assessment and rights of audience
One of the controversial forthcoming changes to the CPR concerning detailed assessment proceedings is to scrap the current CPR 47.18 and 47.19, concerning liability for detailed assessment costs, and substitute these with:
(1) The general rules about costs contained in Parts 36, 43 and 44 apply to the costs of detailed assessment proceedings, as if “claimant” means receiving party and “defendant” means paying party.
(2) The court will summarily assess the costs of detailed assessment proceedings at the conclusion of those proceedings, unless otherwise ordered.
Unless the court otherwise orders, interest on the costs of detailed assessment proceedings shall run from the date of the default, interim or final costs certificate, as the case may be.”
Now, I, along with other members of the Association of Costs Lawyers, must have missed the consultation document that went out when these changes were first proposed. If I had seen it (and surely they didn’t just press ahead without bothering to consult those people who will have to work with this) there would have been a long list of problems pointed out.
However, putting to one side some of the theoretical problems, there is one rather glaring practical difficulty.
The Statement of Rights, which governs the rights of a Costs Lawyer holding a current practising certificate, says it covers:
“Rights of audience in all proceedings being conducted under Parts 43-48 of the Civil Procedure Rules 1999 (“CPR”) and under Part 52 of those rules with regard to appeals from detailed assessment hearings before a High Court Judge or a Circuit Judge such rights to exclude an issue of entitlement to costs under CPR 44.3 and entitlement to a wasted costs order arising solely under CPR 44.14(1)(b) or CPR 48.7 other than in connection with proceedings commence [sic] under (vi) and (vii) below.”
So, it expressly excludes rights of audience as to “an issue of entitlement to costs under CPR 44.3”. (We’ll ignore for the moment that there is no obvious good reason for such a general exclusion.)
The new rule change means that Part 44.3 will apply to liability for costs of detailed assessment proceedings but a Costs Lawyer, who otherwise has rights of audience in such proceedings, will not have rights of audience in relation to this specific issue. So, exercising my Costs Lawyer rights, I will be able to appear in a detailed assessment hearing but at the conclusion of the same will be unable to address the Court as to which party should have to pay the costs of the hearing. (Thank God for Kynaston v Carroll  EWHC 2179).
You couldn’t make it up.
No doubt the Costs Lawyer Standards Board and the Civil Procedure Rules Committee will wish to liaise before April 2013.
In fact, looking carefully at the wording of the Statement of Rights I am somewhat struggling to see how a Costs Lawyer currently has any automatic right to address a High Court Judge or Circuit Judge as to the costs of an appeal they are appearing in. Surely this normally falls under CPR 44.3. The court obviously has discretion and it would be bizarre in the extreme if a judge refused permission to the very same advocate who had previously been addressing the court as to the substantive appeal, but surely this issue should be covered by the Statement of Rights.
Surely the answer to this is to remove the words “such rights to exclude an issue of entitlement to costs under CPR 44.3”. If Costs Lawyers are deemed competent to appear on costs appeals then it is difficult to see why they are not competent to deal with CPR 44.3 issues.