Provisional assessment – and another thing…
More issues as to provisional assessment…
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):
- No statement of costs to be served when requesting provisional assessment.
- 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.
- Failing agreement, the parties have a further 7 days to, if necessary:
- 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.
- 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.
- 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.
- Request an oral hearing. Statement of costs to be filed in advance of the hearing in the usual way.