The defendant costs specialists

Papers to be lodged in provisional assessment

By on Jul 15, 2013 | 18 comments

The concerns the Senior Court Costs Office has over the ability to properly undertake a provisional assessment based on the limited documents required to be lodged with the court has apparently led them to recommend to receiving parties that they lodge the full file when requesting assessment.

The SCCO has apparently decided not to make this a mandatory requirement as they do not believe they have the power so to order, although they are of the view that parties who fail to lodge the full file will be at a serious disadvantage.

I understand a North East Regional Costs Judge has given similar guidance and expressed the same view as to the courts’ powers.

In fact, I think the rules are clear that the courts can order that the full file is lodged, if they so wish.

In relation to provisional assessment, PD 47 paragraph 14.2 reads:

“The following provisions of Part 47 and this Practice Direction will apply to cases falling within rule 47.15 –

(1) rules 47.1, 47.2, 47.4 to 47.13, 47.14 (except paragraphs (6) and (7)), 47.16, 47.17, 47.20 and 47.21; and
(2) paragraphs 1, 2, 4 to 12, 13 (with the exception of paragraphs 13.4 to 13.7, 13.9, 13.11 and 13.14), 15, and 16, of this Practice Direction.”

Therefore, paragraph 13.13 of the PD does apply. That reads:

“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.”

The courts therefore do have the power to order that the documents to produce include the full file.

Whether it is appropriate for the courts to be making blanket orders to make up for the shortcomings of the rules is another matter…

    18 Comments

  1. and thus any DJ so Directing, on individual cases (which I believe they would have to do, as Courts cannot be making their own individual PD’s up), belie the whole point and purpose of Provisional Assessment

    And will also prolong and delay the whole process, which as we already know is NOT going to take the “6 weeks” indicated.

    2 questions.

    Why was this not addressed during the long and extended Pilot Scheme – surely the whole point and purpose of such being to “iron out the wrinkes” – pretty damn big wrinkle if you ask me!

    How is it DJ’s purport to be able to conduct Summary Assessment of costs at the end of a 10 minute Disposal, with (1) less info about the costs (2) the barest of knowledge of anything but quantum & (3) no knowledge at all of what went on in the case to arrive at the costs; and yet suddenly they cant do Provisional Assessments with a full bill, PoD’s and Replies?

    It strikes me, that just like Cost Budgeting, the Courts really dont like the job put before them

    Anonymous

    15th July 2013

  2. Sorry to hijack this post but can someone please tell me what sanctions are available if someone is holding themselves out to be a Costs Lawyer when they are not so?

    Anonymous

    15th July 2013

  3. On the other hand, if the receiving party knows their file is in good order, there is obviously more profit to be made in not lodging the papers for provisional assessment.

    The costs judges in the SCCO would then say they couldnt decide on the papers, and would only be able to fix a date for a Detailed Assessment, as there is obviously no basis in law for their desire to see the file of papers.

    Kerching!

    Anonymous

    15th July 2013

  4. @ anonymous 10:21

    given the debates on here about CL’s, claiming to be one is surely sanction enough :p

    Anonymous

    15th July 2013

  5. @anonymous 10:21

    fair point. we had a CV in this morning from someone who described themselves as a Costs Lawyer. we know for a fact this person is not a Costs Lawyer and we want to know what can be done about it. if the answer is ‘nothing’ because the CLSB nor the ACL can control someone who is not a CL, then what is there to stop other people holding themselves out as a CL?

    Anonymous

    15th July 2013

  6. is that an error on the part of an agency?

    annon

    15th July 2013

  7. I am going to change my title to ”Costs Lawyer (1985)”

    Put that in your pipe and smoke it.

    Anonymous

    15th July 2013

  8. There is a public register of Costs Lawyers, why not point out to the miscreant that they are not on the list?

    Anonymous

    15th July 2013

  9. Reporting someone for claiming to be a CL is just mean. Is that what our profession has become ? We will be burning costs draftsman at the stake soon. Saying that, the CLSB will then hike the practicing certificate ransom to pay for wood and firelighters……….

    ANON

    15th July 2013

  10. The ALCD initially sought to title protect Costs Draftsman for themselves, which was not successful hence the move to Costs Lawyer. However, I don’t know if Costs Lawyer is actually title protected just simply a different name akin to Costs Negotiator.

    My thought is that it is probably not title protected and there’s no reason why a non-regulated person cannot call themselves a Costs Lawyer if they choose provided that they do not attempt to engage in regulated services. However, perhaps someone can enlighten.

    The office cat

    15th July 2013

  11. oops, silence from the massed ranks of CL’s

    can mean only 1 thing – its not title protected haha

    Anonymous

    15th July 2013

  12. Perhaps we’re just tired of this constant sniping!

    Anonymous

    16th July 2013

  13. @ anonymous 16.07 9.22am

    sniping??

    kindly refer to the chairman of the ACL’s public comments about “unqualified” draftsmen when extoling the virtues of Cost Lawyers

    Anonymous

    16th July 2013

  14. I should think there is now an uproar behind the scenes for all those paying their ludicrous subscription, CPD and regulatory fees for such a pointless title, that is not even protected.

    Perhaps a new PR campaign can now be brought to promote looking through the online registry of Costs Lawyers, I am sure law firms would have the time and inclination to do so considering their knowledge of costs and how important it is to instruct an ”expert”

    I do feel sorry for the ACL somewhat – what an oversight!

    Anonymous

    16th July 2013

  15. For all the good the lists do, all they show is the costs lawyers name on the CLSB, with no contact information and whilst the ACL site does show some contact information, no information is provided on the type of work they do or any specialisation. Would you choose a solicitor or counsel on the basis that they were registered with the LS or BC, or would you want a bit more information. Then again maybe they work on the premise that as they are CLs they can do everything with regard to costs, as they have been on “the course”.

    Annony

    16th July 2013

  16. I intend to set up the Honourable Association of Alternative Cost Lawyers.

    If you want to be admitted as a fellow, and gain rights of audience (as a temporary employee / agent of a authorised litigator), then just send £500 to the following Nigerian Bank Account….

    J

    16th July 2013

  17. The titles of solicitor and barrister are protected and using them is a potential criminal offence. Asserting that one is a regulated costs lawyer is potential fraud but I am not aware that the title itself is protected.

    Draftsman

    18th July 2013

  18. @ draftsman nobody has suggested holding themself out as a regulated cost lawyer when one is not. The calling of oneself “cost lawyer” is not fraudulent if the title is not protected (as appears the case from the utter silence from ACL members suggests)and the person is not seeking to undertake regulated work. Just as advising that your title is cost monkey, cost accountant, legal philanylist, or anything else for that matter

    Anonymous

    18th July 2013

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