The defendant costs specialists

Costs of applications in provisional assessment

By on Jul 24, 2014 | 8 comments

CPR 47.15(5) 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.”

What about costs 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 costs are clearly incurred within the detailed assessment proceedings but are they costs “of the assessment”?

See the comments in Crosbie v Munroe [2003] 3 Costs LR 377 para.34:

“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.”

Are such costs recoverable in addition to the £1,500 cap if the matter ultimately does not go beyond provisional assessment?

    8 Comments

  1. same with Part 8 costs. The ordinary Order made on Part 8 applications, is to grant authority to assess and “costs of Part 8 to be in the Detailed Assessment” or words to that effect.

    Where the matter then proceeds via PA, those costs are captured by the PA, and bound by the cap.

    For all those firms out there milking the Part 8 process for all its worth (really, £6-800.00 to file a form??), I suggest your efforts would be better placed in negotiating properly rather than firing off Part 8 at the first opportunity.

    Anonymous

    24th July 2014

  2. How about –

    Applications to set aside DCC NO
    Applications for interim payments NO
    Applications for relief from sanctions NO
    Requests for Provisional Assessment YES

    All summarily assessed front end to smash ambiguity in the chops?

    PART 8 – BENSUSAN V FREEDMAN (£4.50 per application?)

    Happy to help readers. You’re welcome.

    Anonymous

    24th July 2014

  3. I’d say they are in addition to the costs of the provisional assessment.

    It’s difficult enough to run a matter to assessment against a difficult opponent while staying within the £1.5k cap without taking the costs of the apps into account.

    I’d also say that trying to infer comments from Crosbie into the provisional assessment process 11 years later is going to be futile – those handing down Crosbie couldn’t have envisaged the provisional proceess or its fixed costs cap.

    Cash the Pigeon

    24th July 2014

  4. perhaps if Defendant parties negotiated properly and made realistic offers then Part 8 wouldnt need to be issued.

    anonymous 2

    24th July 2014

  5. I wonder how persuasive Costs Judges would still find Crosbie -v- Munroe given that it was set against a very different CPR framework than we have today.

    My own experience of applications within provisional assessment proceedings is that the Courts have summarily assessed the costs of those applications and kept them separate from the £1,500 cap. Surely a receiving party should not be effectively penalised if a paying party makes a frivolous application which is not granted?

    Remember as well how vague the guidance was about the £1,500 cap and what was and was not included within it. It is all too easy for paying parties to try to exploit the haphazard wording of CPR. Thankfully Judges are still using common sense.

    Lowly Costs Draftsman

    24th July 2014

  6. When dealing with costs Judges are more likely to use “common sense” than in other areas of law often referred to as a purposive approach (or some may say ignoring what the rules say and judicial law making).

    Jurisprudence issues aside I would think an application for anything other the hearing itself would be held to fall outside the cap.

    Regional Costs Judge and Cook one of the new cook on costs authors, Simon Middleton, recently commented at a conference that Part 8 costs were not costs of the assessment process. They were Part 8 costs. Why should an unlitigated case have to take out these costs from the cap that a litigated case would not be subject to? seem logical but it is an extremely narrow/purposive interpretation of the rules and at odds with the court of appeal’s opinion in KU).

    Another issue is if you have an oral rehearing do costs up to the date of the request stay capped at £1500 (I have persuaded a RCJ they should) or are all can a higher sum now be claimed for these costs because the cap is entirely disapplied?

    'king costs

    24th July 2014

  7. It’s simple common sense to assume that any costs incurred from commencement of negotiation upon receipt of an N252 through to the conclusion of the matter are costs “of assessment”. There would be, for example, no need to apply for a default cost certificate if there were no bill. One event follows the other. It’s absolutely ludicrous to suggest otherwise. Therefore the costs of any applications that have resulted from the simple fact assessment proceedings have commenced must fall within the cap.

    Northern Monkey

    25th July 2014

  8. @’king costs

    ‘common sense’ in decisions? when??

    comments in conferences are not statements of the law. an ORDER which says that Part 8 costs “be in the Assessment”, squarely captures those as part of the assessment, and if that assessment is PA, they are in the cap.

    Regarding oral hearings being within the cap, they are not. See 47.15(5) “In proceedings which do not go beyond provisional assessment”. PA is the process set out in 47.15.(3). then at 47.15(7) if a party does not accept the PA… Clearly the cap ends with the Court doing the PA and sending the result out. If a party wishes an oral hearing, then the matter is going “beyond the PA”, and so the cap does not extend

    Anonymous

    25th July 2014

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