The defendant costs specialists

Failure to file a Statement of Costs in advance of hearing

By on Mar 12, 2018 | 3 comments

Gordon Exall’s excellent Civil Litigation Brief has a post reporting the decision in Cross v Black Bull (Doncaster) Limited (Sheffield County Court) concerning the appropriate consequences of a party not serving a statement of costs at least 24 hours before a hearing.

His Honour Judge Robinson summarised the issue thus:

“Miss Buck who did not appear before me in the appeal nor did she appear before the Deputy District Judge submits on instructions that because a costs statement had not been filed at the hearing before the Deputy District Judge in accordance with the CPR namely, without looking it up and from memory 24 hours before the hearing, then summary assessment could not have occurred and therefore the claimant should be deprived of all of his costs.

Now, I asked Miss Buck if there was anything by way of authority or principal or direction or anything that might assist me in determining the appropriateness of that costs direction. Namely the costs should be denied a successful claimant and as very fairly said no. Therefore, I am asked to exercise my discretion.”

Exercising his discretion from first principles, he declined to disallow the costs.

It is unfortunate that neither Miss Buck nor the judge (nor, presumably, the advocate for the other side) appeared to be aware of the actual wording of PD 44:

“9.5(4) The statement of costs must be filed at court and copies of it must be served on any party against whom an order for payment of those costs is intended to be sought as soon as possible and in any event –

(a) for a fast track trial, not less than 2 days before the trial; and

(b) for all other hearings, not less than 24 hours before the time fixed for the hearing.

 9.6 The failure by a party, without reasonable excuse, to comply with paragraph 9.5 will be taken into account by the court in deciding what order to make about the costs of the claim, hearing or application, and about the costs of any further hearing or detailed assessment hearing that may be necessary as a result of that failure.”

It is also unfortunate that the judge, who was clearly aware there was a provision within the CPR that required filing of the costs statement in advance of the hearing, decided to rely on memory rather than looking up the actual wording.  If there is a sanction for non-compliance of a rule, it is invariably contained within the rule itself.

The actual outcome may not necessarily have been different.  The note in the White Book states:

“The failure of a party to comply with (what is now) para.9.5(4) of Practice Direction 44 by omitting to file and serve a copy of the statement of costs not less than 24 hours before the date fixed for the hearing did not warrant the wholesale disallowance of costs. Where the only factor against awarding costs was merely the failure to serve a statement of costs without aggravating factors a party should not be deprived of all their costs. The court would take the matter into account but its reaction should be proportionate. The court should ask itself what if any prejudice there had been to the paying party and how that prejudice should be dealt with, e.g by allowing a short adjournment or adjourning the summary assessment to another date, or directing detailed assessment: MacDonald v Taree Holdings LtdThe Times, 28 December 2000, Neuberger J. The court may mark the failure to serve a statement by disallowing some of the costs that would otherwise have been allowed: Simpson v MGN [2015] EWHC 126 (QB)(Warby J).”

Nevertheless, the approach taken to the exercise of discretion would no doubt have differed.

The real lesson from this is that even experienced lawyers do not necessarily possess photographic memories of every aspect of the Byzantine civil procedure rules and there is no substitute to carefully reviewing the relevant provisions rather than relying on “on instructions” or “memory”.

    3 Comments

  1. A question arises….is it necessary to prepare said n260 in a fixed costs case?

    I’ve just had a client beat his own P36 and have the court deprive him of indemnity costs for just such a failure (despite him writing to the court pointing out he was not doing an n260 as the costs were fixed). Strikes me harsh and borderline wrong.

    To me, the failure to serve/file an n260 is not ‘unjust’ so the Judge has no discretion to ignore 36.17, and if he required a reasonable excuse, then fixed costs is surely it. What is the alternative? Incurring the cost of a useless n260 (that eats into the already low fixed costs allowance) that cannot be used in any event as it does not split for Part 36 offers…or one that tries do that (assuming there is one offer) and in doing so makes the Judge aware that such an offer exists…..

    It drives me mad.

    Catty McWhat!

    13th March 2018

    • Catty

      You just need to draft an N260 of the hourly rate costs incurred from expiry of the Part 36 offer, and lodge that no later than 48 hrs before the trial.

      Northern Costs Monkey

      16th March 2018

  2. Ahhh but which one? There were 3, made 18 months apart. Are you saying we should do 3? Who is going to pay for those if we do not beat any of the Part 36 offers?

    Also, if there was just one, and the Judge is thus made aware that it exists and when it was made, does this not cause its own problems?

    What was galling in the above example was the Judge’s reasoning was based on his perception that the solicitor could not be bothered to file an N260 (his exact words were actually, “could not be bothered”). In fact, they had filed a disbt breakdown in its stead and explained that profit costs would depend on the outcome within the same letter.

    That Judge was, in my opinion and mine alone, a frustrated 19th schoolmaster.

    Grumble grumble.

    Catty McWhat!

    19th March 2018

Post a Reply

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