The defendant costs specialists

Court fees in provisional assessment cap

By on Dec 2, 2015 | 7 comments

I’ve commented before on the issue of whether the 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 fall within the £1,500 cap for provisional assessment.

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.”

It is worth pointing out again that the rule refers to “court fees” in the plural.

A paying party will never pay court fees in a provisional assessment matter other than those relating to interim applications.

A receiving party will only pay one fee (for setting the matter down) unless there have been interim application and/or a Court fee for issuing Part 8 proceedings (see my previous Blog post on this issue).

Assuming the use of the plural was deliberate (and it is to be granted that it is doubtful that any thought was given as to what was meant to be included in the cap), this would suggest interim applications are certainly included in the cap and full credit would have to be given for any interim costs orders (ordered or agreed) during the provisional assessment process (ie interim costs order made for £500 plus VAT and Court fee, only a further £1,000 plus VAT and Court fee recoverable for any further work done).

Although I have serious doubt as to what thought was given to this matter when the rules were formulated, it would be entirely consistent with the overriding aim of the provisional assessment process (to limit the costs of assessment) that it was intended to be an inclusive figure to discourage unnecessary applications, such as those for interim costs certificates. (The Senior Courts Costs Office Guide states: “An application for an interim costs certificate which is made in a case proceeding to a provisional assessment will not be listed for hearing on a date before the provisional assessment takes place unless some good reason for such an early listing is shown”.)

    7 Comments

  1. Question.

    in cases where fees are fixed, why are PA costs payable in addition…..

    Anonymous

    3rd December 2015

  2. Ones assumes you are referring to Fixed Recoverable Costs. PA costs are payable if the Receiving Party commences Assessment Proceedings. Recent cases and in particular the matter currently listed before the CoA in Oct 16 sometime, shows that disputes still arise even in FRC cases. Those disputes, absent an agreement, are resolved by the Courts. Somebody has to pay for that process.

    The question you pose does however bring with it a slightly different question. There does not appear to be any authority for a Receiving Party to commence DA/PA proceedings upon acceptance of a Part 36 offer where section IIIA applies – see CPR 36.20 (2). In contrast CPR 36.13 (3) does however provide such an authority in cases where the costs are not fixed.

    Therefore if FRC costs apply, a Part 36 offer is accepted, how can a Receiving Party commence DA/PA proceedings in the event of a dispute? If there are no DA/PA proceedings then there can be no PA costs are payable in such claims.

    Where is dispute does arise as to what FRC costs are payable, does a RP issue an Application seeking an authority for costs to be assessed or an order as to what FRC costs are payable? I thought the whole process of FRC was to end satellite litigation not create it…

    Clearly, as history shows, ill-thought out rules cause the majority of ‘cost-wars’.

    Anonymous

    3rd December 2015

  3. @ anonymous 3.12.15

    As I read it with respect, nothing in CPR 36.20(2), usurps CPR 36.11 or CPR 44.9 – it merely effects the basis on which they will be determined. To read otherwise, would exclude all Part 36 offers from PA/DA, which contradicts CPR 44.9 surely?

    In respect of your response to the original question, you do not actually qualify your argument, and I would be grateful if you (or others) would do so? I agree completely that there are still disputes in even FRC cases. The comment “somebody has to pay for that”, doesn’t however address the specific question – the costs are Fixed already, so where is it written, where the language of CPR 45 is unambiguous that FRC is all that is payable in such cases, that a PA/DA arising in the same claim, is outside those Fixed costs?? As a simpler example perhaps; D argues the case was SCT. C disagrees and takes it to a DA. Court agrees with D and says SCT do apply, and limits the Claimant accordingly. D says “I won, I want my costs please of £X” Court (and a smart C) says “but we have just established that SCT costs apply, so there are no further costs payable”!

    Anonymous

    4th December 2015

  4. Small claims – CPR 27.14(2)(g)

    FRC – CPR 45.15, etc

    Robert Pettitt

    4th December 2015

  5. @ Anonymous 12:32

    The answer the original question posed appears straightforward on a reading of CPR 47.20. There is simply no reference to the costs of the DA/PA process being fixed other than by reference to the £1,500 cap. The RP is entitled to his ‘costs’ of the DA/PA process unless the Court makes some other order. Nowhere is it stated those ‘costs’ are fixed. Logically it must follow they are to be assessed in the normal way subject to the £1,500 cap.

    In respect to your comments re: the FRC and Part 36 offers in issued cases, neither CPR 36.11 or CPR 44.9 has any applicability in matters where a P36 offer is accepted in a FRC issued case. CPR 36.20 (2) specifically deals with acceptance in that situation. CPR 36.11 deals with acceptance. CPR 36.13 deals with the consequences of acceptance but that rule is qualified in FRC cases with the bracketed comments under CPR 36.13 (1). CPR 36.20 (2) deals with acceptance of Part 36 offers in FRC cases to which Section IIIA applies. CPR 44.9 simply makes no reference at all to CPR 36.20 which to my mind fortifies the view that CPR 36.20 (2) does not provide an authority to commence DA proceedings. This cannot possibly exclude all P36 offers as all offers outside of FRC Section IIIA are dealt with under CPR 36.13 (2) – which you will note makes specific reference that that rule excludes FRC costs and the authority to have those costs assessed is to be found at CPR 36.13 (3).

    It is unfortunate, as ever, that there are tensions within the rules on so many different issues although most, if not all, are picked up on Simon to allow debates such as this to take place.

    Anonymous

    4th December 2015

  6. @ anonymous 04.12.15 12:32

    again with respect you miss the point

    PA does have a “cap”; but that doesn’t take into account cases where the totality of the costs which give rise to the PA, are completely fixed for solicitors fees.

    I agree as ever there is tension in the rules, but I’ve yet to hear authoritative answer to contest that assessment costs in FRC cases are limited to the total amounts fixed already in CPR 45

    Anonymous

    7th December 2015

  7. Interesting post question. On a similar subject, where matrix costs apply, can Counsels fees for attending a CMC to decide Allocation be claimed separate (it was FT allocated then settled)? In my view they cannot as it forms part of the legal representatives costs, and doesn’t satisfy the disbursements listed in 45.29, but would be interested to hear contrary views with CPR/case law ?

    Anonymous

    7th December 2015

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