The other day I commented on the fact the amended costs rules do not appear to have a transitional provision concerning the removal of Part 47.19 offers. I am therefore grateful to Dominic Swallow for pointing out that this is actually tucked away in the Transitional Provisions to the Civil Procedure (Amendment) Rules 2013 at s 22(1):
“The provision made by rule 47.20(1) to (5) and (7) in the Schedule (liability for costs of detailed assessment proceedings) does not apply to detailed assessments commenced before 1 April 2013 and in relation to such detailed assessments, rules 47.18 and 47.19 as they were in force immediately before 1 April 2013 apply instead.”
So far as I can see, this provision is not contained within the body of the CPR or the Practice Direction to the new CPR 47 (concerning Procedure for Detailed Assessment of Costs and Default Provisions). Nor is it contained within the Transitional Provisions section of the Practice Direction to the new CPR 48. It was no doubt sensibly decided that practitioners would find it unhelpful for the transitional provisions relating to detailed assessment proceedings to be located in the same place and it would be far more sensible to scatter them randomly around.
Fortunately, District Judges undertaking provisional assessment hearings have all been given 4.5 hours of training, a quarterly newsletter and a podcast to deal with Jackson implementation and so they will all be fully up to speed with the contents and location of all the relevant rules and provisions.
So the new rules will not apply to detailed assessments “commenced” before 1 April 2013. This is very important as Part 36 will be incorporated into detailed assessment proceedings by CPR 47.20(4). That section is expressly excluded from cases where detailed assessment is commenced pre-1 April 2013 (AFD) by the transitional provision above. I therefore read that to mean that for cases where detailed assessment has already been commenced pre-AFD, a party cannot make a Part 36 offer (or repeat a previous offer as a Part 36 offer post-AFD) and expect it to have the effect of a valid Part 36 offer. This will create yet more confusion.
The new CPR 47.6(1) reads:
“Detailed assessment proceedings are commenced by the receiving party serving on the paying party-
(a) notice of commencement in the relevant practice form; and
(b) a copy of the bill of costs.”
and we should probably treat that as being the meaning of “commenced” for the purposes of the rules (although this could have been drafted more clearly).
It does still leave open a problem of “Part 47.19” offers made pre-AFD and where a notice of commencement has not been served pre-AFD. In that case I would suggest my previous analysis on the last post (and in the commentary section of the blog post) will apply.
Now we’ve cleared that up, lets move on to the next “missing” transitional provision.
The current Costs Practice Direction deals with the consequences of filing inaccurate costs estimates. CPD 6.5A requires a receiving party in detailed assessment proceedings, if there is a difference of 20% or more between the base costs claimed and those shown in an earlier estimate filed, to serve a statement of the reasons for the difference with his bill of costs. CPD 6.6 states that where there is such a difference and it appears to the court that the receiving party has not provided a satisfactory explanation for that difference, or the paying party reasonably relied on the estimate, the court may regard the difference between the costs claimed and the costs shown in the estimate as evidence that the costs claimed are unreasonable or disproportionate.
From AFD costs estimates are replaced by costs budgets and the new corresponding practice direction now has similar provisions relating to costs budgets as previously applied to costs estimates (where the court does not make a formal costs management order).
And what does the corresponding transitional provision say given the rules have removed any reference to costs estimates? Nothing, so far as I can see because there isn’t one.
What is a court meant to do if there is a 20% difference in an estimate, the receiving party has not provided a satisfactory explanation for that difference or the paying party reasonably relied on the estimate, and the costs fall to be assessed after AFD?
Was a conscious decision made to wipe the slate clean for misdemeanours made before AFD? Was the need for a transitional provision overlooked? Have I overlooked the relevant rule? Is it hidden away in Statutory Instrument 2013 No 650 for The Free School Lunches and Milk (Universal Credit) (England) Order 2013?
A free bottle of champagne to the first reader who can locate the missing transitional provision.