Legal Cost Specialists

Provisional assessment

Different courts are introducing their own directions as to the provisional assessment process (and rewriting the rules in places).

The Senior Courts Costs Office requests that the receiving party’s full file of papers is filed with the Court rather than just the limited documents provided for within the Practice Direction. This is a very sensible requirement and the Practice Direction allows the Court to order the filing of any papers it considers appropriate (although the Practice Direction did not, perhaps, envisage that everything would be requested in every case).

Other courts are ordering that “optional” Replies are served in every case.

Some courts are expressly inviting parties to serve Replies not limited to points of principle and concessions only (in direct contradiction of PD 47 para.12.1).

Other courts are annotating Precedent G: “in the absence of a reply from receiving party, I assess this item as per the paying party’s offer”, clearly not being aware why no reply has been given (see PD 47 para.12.1 again).

This nonsense has to stop.

A judge at a sufficiently senior level needs to get to grips with this urgently.

It is perfectly possible (for “possible” read “obvious”) that the provisional assessment rules were not very well thought out or well drafted. Nevertheless, any revision to the rules should be applied consistently and after proper consultation (this could be done in the space of a few weeks with appropriate stakeholders), not piecemeal and at the whim of different judges rewriting the rules to their own design.

There. I’ve said it.

4 thoughts on “Provisional assessment”

  1. Costy McBillington

    “in the absence of a reply from receiving party, I assess this item as per the paying party’s offer”

    This is happening a lot and is precisely why we will reply to every point, regardless of the practice direction. Unnecessarily ramping time and costs up for all involved. Great if you’re self-employed and billing by the hour, but extremely annoying if you’re in-house and salaried!

  2. Nameless Costs Lawyer

    Well said – this surely echoes what 95% of people in the industry are thinking. The 5% being the lucky paying parties who are getting the benefit of their points being accepted in the absence of a reply/concession, knowing that the point cannot really be appealed/orally heard as it will not make a 20% difference to the outcome!

    An SCCO Master I recently heard speak, upon questioning, said words to the effect of “notwithstanding the PD, if you need to reply to something and it is not a concession or point of principle, still reply succinctly (emphasis added) if it will assist me as I will still read it” – exactly how it should be, perhaps he could help re-mould the rules?!

  3. I’m also seeing courts still ordering joint meetings/statements before hearings, which is a nonsense particularly where costs of PA are capped – given the rampant increase in Court fees recently advertised, isn’t it about time the Courts did something for the money we pay?

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