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 Ltd, The 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  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”.