The problem with delays – CPR part 47.8. We find that one of the most common reasons for enquiries from potential new clients is dissatisfaction with their existing draftsmen due to delays. Our service standard of a 7 days turnaround for producing Bills of Costs is a significant factor in us receiving new instructions.
These days, most Solicitors are far more aware of the need to run a tight ship than they were in days past. Simply sitting on an entitlement to costs is not an option, particularly, where the Solicitor is only going to get paid from the money recovered from the opponent as opposed to the client paying as the case goes along. However, there are still cases of apparently “inordinate and inexcusable delay” which lead to applications under CPR part 47.8. Under CPR 47.7, the period for commencing Detailed Assessment proceedings (i.e. formally serving the Bill of Costs under a Notice of Commencement) is three months from the date of the Order. At the expiry of that time the paying party may make an application for an unless Order requiring the proceedings to be commenced within a specified period (47.8). The costs of that application will generally follow the event and the Order will normally specify that the costs will be allowed at nil unless there is compliance with its terms.
The ACL Newsletter of 18th June 2015 carried a report of a case on Lawtel of F N & Another v Secretary of State for the Home Department where such an application had been made. Whilst there were other arguments deployed, principally the receiving party maintained that they had indicated to the paying party that it would normally take 6 to 8 weeks to commence Assessment proceedings. In that particular case, the three month period under 47.7 had long expired and the comment as to the likely time to be taken was made in response to a threat of an application. In these post Denton days, it is very clear that the Court do require the parties to demonstrate a reasonable approach to questions of default and it does seem here that the Judge felt that the application should have been avoided if the receiving party had made a more formal request for an extension of time. The application was issued 7 weeks after the receiving party’s indication of the likely timescale. On Appeal, the Court found that the application had been reasonably made and therefore costs followed the event. However, we do think it is this point over appropriate communication in the face of a threat of an application which is the most critical point. If there is some difficulty then this should be fully and openly explained to the opponent and (here) the receiving party should use its best endeavours to comply with any extension that has been requested. It seems fairly clear that the approach of the Courts is not that Rules are to be absolutely enforced as appear to be the case post Mitchell. However, they do retain considerable importance and cannot be simply ignored. A proactive approach will however most likely meet with the Courts approbation.