The defendant costs specialists

Disclosing privileged documents in detailed assessments

By on Nov 15, 2013 | 14 comments

The Senior Courts Costs Office Guide 2013 correctly describes the approach to disclosure in detailed assessment hearings of potentially privileged documents:

“If, having examined documents lodged with or produced to the court, the court is minded to determine a point of dispute wholly or partly in favour of the receiving party it does not automatically follow that the paying party will have a right to see all of the documents relied on by the court in reaching that decision. The court should enquire of the paying party whether the paying party is content to accept that ruling (subject to appeal) or whether the paying party wishes to see the documents relied on by the court in making the ruling. In many cases the paying party will be content to agree that the court alone should see those documents. The alternatives (see below) may lead to additional delay and an increase in costs.

(b) If the paying party declines to accept the court’s ruling without inspecting documents, then, save as explained in paras (f) to (h) below, the court will put the receiving party to his election between showing the documents in question to the paying party or not relying upon them and offering to prove the fact of which the document is evidence by some other means. Alternatively the receiving party may decide to withdraw the claim for the costs of it. The court may give directions enabling the receiving party to have a fair opportunity to provide other evidence. In reaching its final decision on the issue the court will not take account of documents which the receiving party has elected not to show to the paying party.”

Those costs draftsmen and costs lawyers who continue to believe that they can simply show the documents they rely on to the judge without also having to potentially show the same to the other side have misunderstood the true position.

    14 Comments

  1. can someone kindly explain, why the SCCO feels the need to give guidance, in what is already settled case Law in Hollins, and Pamplin?

    Anonymous

    15th November 2013

  2. Anonymous @ 10:08 am – You are making the basic schoolboy error of assuming that those who appear in the SCCO and hold themselves out as costs specialists have actually read any case law.

    Simon Gibbs

    15th November 2013

  3. @ Simon 11:17

    ah yes! of course, you are quite right. But that’s a whole different debate

    Anonymous

    15th November 2013

  4. Why not just send a copy of the clients entire file of papers with a copy of the bill at the outset?

    After all, they are the paying party…

    The white book

    15th November 2013

  5. Of course you will be content to pay the exra costs of Pamplin procedure?

    abcde

    15th November 2013

  6. re: The white book @ 12.35pm (someone hasn’t put their clocks back by the way), complete disclosure was on the cards in the 90s but the magic circle firms shot it down.

    ticklemebills

    15th November 2013

  7. @ abcde

    of course, should the solicitor unreasonably refuse to disclose the document – and explain why they refuse.

    of course the issue is helped, by drafters trying to get “cute” in bills with their descriptions, only to come a cropper and try and resile from the bills when they do and still refuse disclosure. Perhaps they should read the Guide…….

    Anonymous

    15th November 2013

  8. The white book on November 15th, 2013 12:35 pm

    Send a copy of the file to the other side? Are you mad? Copying costs money – just send the original. The paying party will send the file back in good order, presumably with a cheque, once they have finished with it.

    Charles Wheatcroft

    15th November 2013

  9. By getting ‘cute’ do you mean giving sufficient information, and based on the signature of the bill (Bailey), disclosure is not necessary?

    This is a very sneaky approach indeed! And contrary to the interests of justice because you cannot embark on a fishing expedition in a desperate attempt to avoid paying costs??

    Money Money Money

    15th November 2013

  10. @ Anonymous

    they dont have to provide good reason – they are put to their election. It’s their choice. They say no disclosure and give a witness statement. Provided all in order you will be paying for that statement

    pamplin refers

    abcde

    15th November 2013

  11. I’ve had points of dispute through in the last month which say (paraphrased here):

    In the spirit of McCreery please provide copies of all documents the RP intends to rely on in support of challenged items.

    If you decide not to provide sight of these documents until the detailed assessment hearing then we will ask for the hearing to be adjourned with a wasted costs order.

    Robert Pettitt

    15th November 2013

  12. @MMM

    Bailey doesn’t apply to CFA’s – do keep up, Hollins has been out for some time now you know. Your definition of “sufficient information” when 1 in 3 bills I see are wrong or give incorrect information, is interesting

    @abcde

    has Proportionality never been introduced to you? What do your clients have to hide by refusing to disclose?

    Anonymous

    15th November 2013

  13. Anyone remember myatt ??

    Disclosure is to be controlled. you push points then you pay when you lose

    abide

    15th November 2013

  14. I suggest you all read 12.4(d) of the SCCO Guide 2013

    about time Receiving Parties & their representatives adopted what the Court states is “standard practice”

    Anonymous

    25th November 2013

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