Costs recoverable for provisional assessment
In what must have been the most widely expected change to the costs rules, the 66th update to the CPR amends the section relating to the maximum costs allowable for matters that proceed to provisional assessment.
The current wording of CPR 47.15(5) says:
“The court will not award more than £1,500 to any party in respect of the costs of the provisional assessment.”
The amendment coming into force on 1 October 2013 amends this to:
“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.”
The extent of the amendment shows how little thought (ie none) went into the original wording.
There appears to be no relevant transitional provision and so this will apply to any assessment of provisional assessment costs undertaken on or after 1 October 2013. However, the old wording will apply until then.
Many will no doubt seek to argue that this amendment does no more than “clarify” what was always intended, but this is clearly wishful thinking. Instead it sets out for the first time additional costs recoverable on top of the £1,500 (costs of drafting the bill, VAT and court fees).
The difficulty any judge has before 1 October 2013 is trying to interpret “costs” in any other way than being an all inclusive figure. If the current wording was an obvious drafting error, for example VAT being included when it was clear from the context it was meant to be exclusive, then judges could undertake some clever footwork and adopt a purposive construction to read the rule as though that was what it said.
Sadly (depending on your perspective), this is not possible here. The problem arises because clearly no thought was given at the time of drafting the current rules as to what the £1,500 was meant to cover. There was no clear “purpose” beyond limiting the total amount. As the term “costs” is clear and well established it leaves no (proper) scope for judges to give it a different or more limited meaning.
Now we do have a new definition, it must be clear that additional liabilities are included within the £1,500. This is no more rational, or irrational, then excluding VAT. It is a policy decision. However, until the new policy was announced (by publication of the rules) there was no way for judges to know what was behind the policy that led to the current wording and, indeed, we still do not know. It would be pure speculation to say that because this is what the wording will say from 1 October 2013 that must have been what was intended in April 2013.
Whether a disgruntled receiving or paying party will consider it worth appealing a decision in the interim that takes a literal, all encompassing, interpretation of the current wording remains to be seen.
Interestingly, although the time spent “drafting” the bill of costs is allowed in addition to the £1,500 in the amended wording, there is no provision for the additional costs of checking the bill and signing the certificate. (Contrast with PD 47 para.5.19: “The bill of costs must not contain any claims in respect of costs or court fees which relate solely to the detailed assessment proceedings other than costs claimed for preparing and checking the bill“. Another oversight or intended?
Further, no mention is made of work done in connection with issuing costs-only proceedings. Following Crosbie v Munroe  EWCA Civ 350 it follows that such work, with the exception of the £45 issue fee, is included within the £1,500. Again, oversight or intended?
Third time lucky Rules Committee?