The defendant costs specialists

Provisional assessment – and another thing…

By on Jan 22, 2015 | 7 comments

More issues as to provisional assessment…

Problems:

The timing of certain steps in the process is confusing at best.

The parties are meant to undertaken the arithmetic on the Bill as assessed post-provisional assessment. However, how does the judge undertake, where relevant, the global proportionality cross-check if the judge does not know the figure that has been initially arrived at? Some courts are issuing their own directions for the parties to inform the court of the initial calculations so proportionality can then be considered and the final amount determined. However, this step should be provided for in the rules.

The rule concerning filing of statements of costs is a mess. PD 47 para.14.3(c) refers to filing “a [in the singular] statement of the costs claimed in respect of the detailed assessment” implying that it is just the receiving party that will file a statement. What if the paying party has won? There is no requirement to serve the statement of costs on the opponent. The statement of costs will have to be prepared before the provisional assessment has occurred and before the parties have agreed the arithmetic. How much time should go in the statement of costs for the post-assessment number crunching and trying to agree the figures with the other side, when the work has yet to be done? For a Bill at the top end of the £75,000 figure, this can be time consuming if there have been, for example, amendments to the hourly rates and VAT figures. What if the parties cannot agree the figures and need to make written submissions to the court. How is this time dealt with in the statement?

Post-assessment, the parties “must” agree the total sum due to the receiving party on the basis of the court’s decisions within 14 days of receipt of Precedent G. But they then have 21 days to request an oral hearing. Is it necessary to try to agree the exact figures if a party is going to request an oral hearing in any event?

Solutions (and I confess this may need some more thought):

  1. No statement of costs to be served when requesting provisional assessment.
  2. The initially provisionally assessed Bill, pre-proportionality consideration (where the new test applies), is returned to the parties for them to agree within 21 days the calculations and, if possible, any remaining issues including costs of assessment.
  3. Failing agreement, the parties have a further 7 days to, if necessary:
    1. Confirm the agreed calculations and ask the court to deal with proportionality. The court rules on proportionality and provides the decision to the parties. The parties have a further 7 days upon receipt of the same to agree the costs of assessment. Failing agreement, both parties are to file statements of costs together with written submissions as to costs.
    2. If the calculations cannot be agreed, the parties are to make written submissions to the court, and ask for proportionality to be dealt with if necessary. The court rules and provides the decision to the parties. The parties have a further 7 days upon receipt of the same to agree the costs of assessment. Failing agreement, both parties are to file statements of costs together with written submissions as to costs.
    3. If the calculations are agreed and proportionality does not need to be dealt with, but the costs of assessment cannot be agreed, both parties are to file statements of costs together with written submissions as to costs.
    4. Request an oral hearing. Statement of costs to be filed in advance of the hearing in the usual way.

    7 Comments

  1. If the court wants to make a finding that the costs are disproportionate, i’ve no idea why the court can’t just say ‘proportionate costs will be limited to £x’. If the assesed bill comes in higher than this sum then it is a cap; if not, it’s irrelevant.

    There is then no need for all this back and forth with the court.

    ————————-

    Personally, I like determination of the quantum of the receiving party’s costs of provisional assessment being dealt with by the court at the same time as provisional assessment, because this allows the parties to ask for a final costs certificate (where the bill is agreed) without, again, having all this back and forth with the court.

    Robert Pettitt

    22nd January 2015

  2. In my experience so far on PA cases for claimant solicitors, (we haven’t lost one yet, which is nice) proportionality is almost always dealt with in the POD/Replies and a ruling given accordingly, with nothing more said. The only time I can ever remember any DJ or costs officer giving any guidance on proportionality was when the judge asked me what I thought of Lownds. “It seems a little…” said I. “…like a lot of nonsense? I agree.” said the DJ, who will remain nameless.

    The thing that is puzzling me the most about PA decisions is the ruling on the costs of assessment. I have seen several orders (all bar one) where the receiving party has been awarded their costs of assessment prior to the revised bill being filed with the Court. Surely if the Court has done enough fag-packet maths to figure out who won they go the extra mile/few yards and finish the sums off themselves!

    Let’s be honest, the whole thing is a nonsense, disguised as a farce, wearing its underpants on its head with pencils up its nose.

    Lee Whitehead

    22nd January 2015

  3. Robert Pettitt hit the nail right on the head there. If its disproportionate, under the new rules the Court should then simply state what a proportionate figure is – no further step in the assessment needed

    As to filing costs statements, see CPR 47.20 – the receiving party is entitled to their costs. Not the Paying Party. It makes no mention at all as to consideration of offers. The only thing it says, is if the Court considers making some other Order, it will consider certain factors – none of which are offers. Part 36 is entirely separate and self contained, so the Court doesnt need to rule on that.

    Therefore, if a Paying Party wants its costs, it has to invite “some other Order”; does not refer to or rely on non-Part 36 offers; is not part of the original PA so there’s no need to serve an N260 before the hearing; is actually a part of PD 14.6 to CPR 47.15

    Anonymous

    22nd January 2015

  4. On proportionality, I agree with Mr Pettitt. There is no reason why, on provisional assessment under the new proportionality rule, the court cannot endorse the bill: “Provisionally assessed. If the costs allowed exceed £x (the proportionate amount of costs) they are limited to that sum.”
    I usually provisionally assess the receiving party’s costs of the assessment as part of the provisional assessment. If there is no argument that the rp is entitled to costs, the job is done. If there is an argument, because the rp has failed to beat a Pt 36 offer, the pp can write in and ask for a different order.

    Master Gordon-Saker

    22nd January 2015

  5. Whilst the approach of the Senior Costs Judge is to be commended ,he is only able to take that path because he knows that Proportionality only applies to Base Profit Costs ,Counsels Fees and Disbursements. He may be surprised at how many DJs and DDJs in the Provinces think it applies to the whole bill including Additional liabilities and Vat ! Its the same with Budgeting there are many Case Managing Judges who think that setting a Budget of £50k will result in a bill of no more than that sum . They are oblivious to the fact that in say a NIHL case with a pre Ist April 2013 CFA that Profit Costs of £40000 will in real terms be worth £78000 with the success fee and Vat.
    Please add my vote to those that wish to see a Northern branch of the SCCO.

    Ian Cosgrove

    22nd January 2015

  6. Perhaps the Master would kindly care to comment on the post immediately prior to his regarding the status of non-Part 36 offers when determining PA costs liability? And to that end, the status of the PD 8.3 open offer, which is to be appended to the bill in all cases and thus seen by the Court when assessing?

    Anonymous

    22nd January 2015

  7. All of the above will not matter within 6-12 months. The cost market is starting to show real cracks and numbers are dropping off at all cost firms. Anyone who says otherwise is talking nonsense.

    Soon to be trainee frozen food specialist at Asda

    22nd January 2015

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