The defendant costs specialists

Listing for provisional assessment

By on Jul 14, 2014 | 18 comments

I contacted the Senior Courts Costs Office to enquire whether they had received a request for assessment from the other side. (If not, application to swiftly follow.) They were unable to tell me because they have a backlog of claims such that any request for assessment received since April is probably not on the system yet, let alone having a date for provisional/detailed assessment.

The Practice Direction, perhaps optimistically, states:

“the court will use its best endeavours to undertake a provisional assessment within 6 weeks”

The SCCO is clearly currently struggling to even get the cases onto the system in that timescale.

Previously I was hearing those from the SCCO suggesting that the numbers of cases being brought before them for provisional assessment was much less than anticipated. This now seems to suggest that as parties are becoming familiar with the process, the numbers are increasing.

    18 Comments

  1. I was recently told by the SCCO a case would be listed for a provisional assessment even though the bill was over £75,000.00. I was advised the reason for this was due to internal instructions to list anything up to £100K for a provisional assessment. I managed to persuade the court that a provisional assessment would not be appropriate; fortunately they have now listed the matter for an oral hearing.

    Word of advice do not take it for granted that you are going to get an oral hearing for a bill over £75K.

    Could this be an indication that the SCCO maybe considering putting forward a proposal to the CJC to increase the provisional assessment threshold?

    LOL

    14th July 2014

  2. Seems to be backlogged all over the place at the moment- the Court of Protection section seem to be taking months to issue final certificates…

    Money for Nothing

    14th July 2014

  3. Not just the SCCO. I have a file where assessment was requested in Birmingham CC as far back as March and we still don’t have a date – let alone a decision.

    Cash the Pigeon

    14th July 2014

  4. Personally I am finding that more and more Defendant firms are willing to “take a punt” to quote a Costs Lawyer I recently spoke to (off the record of course).

    They stated that the risks of getting it wrong were now so much lower on bills of upwards of £50-60k that it was almost easier for them to just run it to assessment than to try to convince their client to make a reasonable settlement.

    Now I am not for one minute suggesting that this is only happening on the Defendant side, but you can see where the problems arise.

    Assessment used to be the last resort, the final step after every single other avenue was exhausted, now it is seen more as a get out for those who can’t be bothered to continue negotiating. And the cost of getting it wrong sometimes as little as 3% of the bill.

    I wonder why the SCCO are struggling to keep up?

    AnonymousCostsGrunt96

    14th July 2014

  5. I’m experiencing more Claimants adopting the tactic of running to PA, 1. because they don’t ordinarily need to file their full file (and they really don’t want their papers looked at), and 2. they know most DJ’s (actually, for the most part I’m seeing DDJ’s do these PA’s)gloss over the assessments

    As for taking any form of technical point, don’t bother, they are ignored on every PA I’ve seen

    Anonymous

    14th July 2014

  6. I offer no view as to whether Provisional Assessments are a good idea.

    However following on from the post of anonymousCostsGrunt96 @ 11:40am, the capping of the cost assessment in the provisional arena of £1500.00 is I believe detrimental to the receiving party, paying party and the court system.

    Under the Leeds pilot scheme I cannot recall whether the cost of assessment was capped.

    Essentially by capping the cost of assessment with regards to the provisional assessment to £1500.00 in my view does not persuade the paying party to engage in negotiation. As the previous post mentions the paying party in my opinion views the possible £1500.00 possible exposure as minimal and is therefore prepared to “take a punt”.

    My recommendation would be to make a protective Part 36 offer when serving the bill of costs. The benefit of beating your own Part 36 proposal following a provisional assessment means cost on an indemnity basis which removes the cap of £1500.00. Please see Andrew Hogan’s blog regarding this point.

    I believe that the courts would benefit from the removal of the cap, as I believe that this would assist in engaging the paying party to settle meaning possibly less provisional assessments for the court to deal with.

    LOL

    14th July 2014

  7. I received a notice of hearing today for a provisional assessment in Birmingham CC. Listed for 3 hours on 7th November!

    I’m acting for the defendant and hope that the other side’s Part 36 offer is too high otherwise the interest penalties will be considerable.

    Unfortunately I am in the middle of dealing with three PAs as Claimant where the matters were settled pre-issue. Only one of the three Part 8 applications has been dealt with and they were all submitted in February…

    Shameful delays.

    Charles Wheatcroft

    14th July 2014

  8. @ anon 12:11

    Not entirely true- I have seen matters taken out of the PA scheme where there are fixed costs points that require an oral hearing.

    Money for Nothing

    14th July 2014

  9. LOL on July 14th, 2014 12:26 pm

    I generally agree with you there.

    However, you show me a draftsman who can convince a Claimant Solicitor to make a “protective” Part 36 offer along with the bill and I will show you a magician!

    For his next trick he will find a Defendant firm for whom “top line” actually means their top line.

    AnonymousCostsGrunt96

    14th July 2014

  10. Fees for PAs are the same level as DAs yet they should take a fraction of the courts time. Far more cases now being listed and whilst far fewer settle after they have been listed there should still be a large net increase in the income in court fees. this is obviously not being spent on employing more costs judges.

    'king costs

    14th July 2014

  11. With regards the post of King costs @ 2:14pm.

    We are perplexed with the suggestion that provisional detailed assessment costs mirror image the cost achieved by way of a detailed assessment oral hearing, when we quite regularly have received overall costs of assessment in excess of £8000.00 on bills below £75,000.00 pre 1st April 2013.

    And we continue to recover a similar amount for the cost of assessment on bills which exceed £75,000.00. We are astonished that there is a cost draftsman in the industry that can run a case to a detailed assessment hearing provisional or otherwise for £1500.00 and make a profit.

    SimplyTheBest

    14th July 2014

  12. I waited 8 months for Birmingham CC to provisionally assess a bill recently from the date it was listed to be assessed so news of their backlog is no surprise. It took a very strongly worded complaint letter signed by both parties to get the Court to even give an indication of when it would be dealt with.

    Was about to chase the SCCO up today about a couple of bills I lodged three months ago but I suppose I will leave it for the time being…

    Lowly Costs Draftsman

    15th July 2014

  13. Sorry should have been clearer. By fees I meant court fees paid for listing for PA not costs. ie court still gets fees of £335/£675/£1075 for what would previously correspond to a half day to a day of the courts time on DA but now takes about 30 minutes to 2 hours for a PA (the fees have actually gone up this year despite the introduction of PAs). The corollary is that lots of DAs used to settle (due to the risk of £8k assessment costs as per the above post) and the court fee was not refundable whereas PAs rarely settle.

    'king costs

    15th July 2014

  14. Personally, I thought @kingcosts’s original post was entirely clear. I am however impressed that @SimplyTheBest uses the royal “we”!

    Rick Lardon

    16th July 2014

  15. Have to say, I’m more impressed that SimplyTheBest managed to “regularly” get c. £8k in assessment costs on files under £75k pre- PA.

    Surely must be at a London firm?

    Whether acting for paying parties or receiving parties, I’m finding the £1.5k fixed fees to be perfectly profitable. Make your best offer early, make it costs-bearing, and run to assessment.

    No prolonged negotiation (nothing more than two or three letters/calls each away), no moving the goalposts, and no racking up shedloads of WIP.

    Problem solved.

    (And of course, no cap on the files over £75k, which are still very profitable, though more so on the RP side.)

    Cash the Pigeon

    16th July 2014

  16. I would suggest that Master Howarth has clearly been put out to pasture, as all communication I have with the SCCO suggest that they are so busy they don’t know their CFA’s from the DBA’s.

    Yet more top notch communication between those making the rules and those suffering the consequences of them.

    AnonymousCostsGrunt96

    17th July 2014

  17. The comments seems baffling to me when there is an unprecedented backlog for both DAs and PAs in . I have had lots of PAs in the SCCO so they are definitely going there, although mainly dealt with by Costs Officers. Only a couple of the higher value ones dealt with by Masters but seeing Costs Officers can now deal with costs up to £35k and principal CO’s up to £110k, excluding additional liabilities and VAT it is unsurprising that the Masters are not dealing with many PAs themselves.

    'king costs

    18th July 2014

Post a Reply

Your email address will not be published. Required fields are marked *