Applications to set aside default costs certificates
There appears to be an unfortunate tension/conflict in the wording of the CPR and corresponding Practice Direction as to applications to set aside default costs certificates.
CPR 47.12(2) states:
“the court may set aside or vary a default costs certificate if it appears to the court that there is some good reason why the detailed assessment proceedings should continue”
This provision appears to be purely concerned with future matters (as to whether there is a good reason for the assessment proceedings to proceed). The reason for the failure to serve the points of dispute is irrelevant in this context. A “good reason” will be where the costs are likely to be reduced by a reasonable amount, and at proportionate cost, should the matter be allowed to proceed.
On the other hand, PD 47 para.11.2(3) states:
“As a general rule a default costs certificate will be set aside under rule 47.12 only if the applicant shows a good reason for the court to do so…”
This is not the same thing as whether there is a “good reason why the detailed assessment proceedings should continue”. It implies the court will give consideration to other matters.
Of course, to the extent to which there is a conflict between the CPR and the Practice Direction, it is the CPR that will prevail. Nevertheless, this is unfortunate and badly drafted.
This is the same wording as existed in the pre-Jackson version of the CPR/Practice Direction and it is therefore far too much to hope that there is any prospect of an amendment being made now to make the issue clearer.