Legal Cost Specialists

Detailed assessment offers

A recent email update from Costs Law Reports covered some of the recent changes to the Civil Procedure Rules. This included the following comment:

“Parties who wish to make offers to settle the costs can no longer do so by making an offer ‘without prejudice save as to the costs of assessment’. On 1 April 2013, CPR 47.19 was revoked and instead the provisions of Part 36 apply, so a paying party who wishes to protect himself against having to pay the costs of assessment must now make an offer under Part 36 (see CPR 47.20).”

If this is meant to represent a statement of the law, it is wrong (even ignoring the transitional provisions concerning cases where detailed assessment proceedings were commenced before 1 April 2013).

The new PD 8.3 to CPR 47.9 states:

“The paying party must state in an open letter accompanying the points of dispute what sum, if any, that party offers to pay in settlement of the total costs claimed. The paying party may also make an offer under Part 36”

Although it remains something of a mystery exactly what purpose the open offer is intended to fulfil, it is difficult to envisage a situation where a paying party “wins” on their open offer but is then not awarded their costs of the detailed assessment proceedings.

Further, in so far as “provisions of Part 36 apply to the costs of detailed assessment proceedings” that also includes CPR 36.1(2):

“Nothing in this Section prevents a party making an offer to settle in whatever way he chooses, but if the offer is not made in accordance with rule 36.2, it will not have the consequences specified in rules 36.10, 36.11 and 36.14.”

The right to make a “Calderbank offer” in costs proceedings (ie one “without prejudice save as to the costs of assessment”) remains.

Further, PD 14.3(d) to CPR 47.15 states that the following must be filed with the court when requesting a provisional assessment:

“the offers made (those marked ‘without prejudice save as to costs’ or made under Part 36 must be contained in a sealed envelope, marked ‘Part 36 or similar offers’, but not indicating which party or parties have made them)”

It is therefore clear that the rules envisage offers other than Part 36 ones being relevant to the costs of assessment; although it is perhaps rather alarming that those who drafted the new rules do not appear to appreciate the distinction between an offer that is “without prejudice save as to the costs of assessment” and one made “without prejudice save as to costs”.

5 thoughts on “Detailed assessment offers”

  1. Charles Wheatcroft

    I see the benefit in an open offer in family ancillary relief proceedings as costs do not follow the event in those proceedings.

    Perhaps somebody applied the same principle without realising that there is a fundamental difference between civil and matrimonial proceedings and costs plus any other proceedings?

  2. Truly Eminent Costs Professional

    I always thought an offer was without prejudice (and so could not be repeated by the opposing party) as long as a concession had been made, and the word ”wp as to costs” or whatever did not make any difference…

  3. I have been looking into this lately as I wanted to rely on an offer made on the schedule prior to formal service of the bill and was of the view that my offer was cost protective. I referred to CPR rule 44.2 (Court’s discretion as to costs) which states:

    (2) If the court decides to make an order about costs –
    (a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party…
    (4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances including –
    (c) any admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer to which costs consequences under Part 36 apply

    Any thoughts?

  4. The debate on the costs lawyer vs. costs draftsman has disappeared somewhat, which is disappointing.

    It leads me to believe that all these comments about ”costs lawyer vs costs draftsman is getting boring” is the cause of this.

    The above comments that i have cited, in my humble view, are very political, and would not surprise me one bit if they are made by costs lawyers, or those training to be costs lawyers.

    Why else would someone make such a comment about an issue which is being pressed by the ACL.

    The ACL, not the costs draftsmen who have chosen not to be a part of the ACL, have brought this to the coal face.

    We need to have a proper debate, devoid of ill informed/negative/unsubstantiated arguments if we are to move forward.

    What are you afraid of?

    In my opinion, if you were one of the first costs draftsman to qualify as costs lawyers, and achieved the status of costs lawyer, with the right to conduct costs litigation, you should be proudly providing examples of your eminence.

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