Requesting Provisional/Detailed Assessment of Costs – avoiding potential pitfalls

Requesting Provisional/Detailed Assessment of Costs – avoiding potential pitfalls. It is imperative that matters are not delayed unduly as, whilst permission to Commence or Request an Assessment, either Provisional or Detailed of Costs, out of time is no longer required, there are penalties for delays. In addition to the 3 months allowed for commencement of the assessment process (CPR 47.7), CPR 47.14 (1) further provides that “Where points of dispute are served in accordance with this Part, the receiving party must file a request for a detailed assessment hearing within 3 months of the expiry of the period for commencing detailed assessment proceedings.” hence there is, potentially, a maximum time of 6 months from the date of the Order or other authority for assessment in which to Request a Provisional or Detailed Assessment.

Within that time period, and provided neither of the 3 month periods are exceeded, a paying party cannot seek any sanction against a paying party. If, however, such periods are exceeded it is open to the paying party to make and Application to the Court to compel commencement (CPR 47.8(1) &(2)) or to Request a Detailed Assessment (CPR 47.14(2) & (3)) within a given period and in default disallow all or part of the costs. Even in the event that such an Application is not made, it is still open to the paying party upon any Assessment to request the disallowance of interest for the period of any delay; CPR 47.8(3) & 47.14(4).

It is therefore important to bear in mind these time limits, especially for Requesting Provisional or Detailed Assessment, as otherwise the consequences in both lost costs and interest can, potentially, be substantial. So, once a Bill of Costs has been served under a Notice of Commencement [N252], Points of Dispute and Replies have been served, and yet agreement still has not been reached between the parties, what next? Where the total costs claimed are £75k or less the costs will normally be dealt with by provisional assessment; CPR 47.15(1). “This rule applies to any detailed assessment proceedings commenced in the High Court or the County Court on or after 1 April 2013 in which the costs claimed are the amount set out in paragraph 14.1 of the practice direction supplementing this Part, or less” “The amount of costs referred to in rule 47.15(1) is £75,000.”; CPD 14.1 It is open for the parties to request that, because they consider the matter to be unsuitable for Provisional Assessment due to complexity etc, that it be assessed with the parties present in a more traditional Assessment Hearing and, further, also open to the Court to order that, while the matter is under £75,000.00, it is not suitable for Provisional Assessment; CPR 47.15(6). Such a decision is, however, entirely at the discretion of the Court.

Further, parties should be aware that if the matter does not proceed by Provisional Assessment, but by a hearing with advocates present, the costs cap for Provisional Assessment of Costs and the potential protection which that may provide to a party (CPR 47.15(5)) will no longer apply. A request for Provisional/Detailed Assessment of Costs is made by filing the relevant form [N258] and associated documents at Court; this form may be downloaded and completed from the Courts website (1).

Whilst details of the documents that need to be enclosed with the form are listed in the Practice Direction (section 13.2 supplementing CPR 47), fortunately and more for the assistance of all concerned, the N258 contains a check list of what needs to be sent to the Court with the request. Going through the “tick boxes” these are as follows: – 1. The document giving the right to detailed assessment; 2. The Notice of Commencement; 3. The Bill of Costs; 4. The Points of Dispute and Replies in the form of Precedent G(2); 5. A statement giving the names, address for service and references of all parties to whom the Court should give notice of hearing; 6. The relevant details of any additional liability claimed; 7. Copies of all the orders made by the Court relating to the costs of proceedings which are to be assessed; 8. Any fee notes of counsel or other disbursements relating to items in dispute; and 9. Where there is a dispute as to the receiving parties liability to pay, the client care letter delivered to the receiving party or the legal representatives retainer.

Practitioners should pay particular attention to item 9 and check that those documents enclosed are compliant with the Rules as the effect on recoverability of additional liabilities may potentially be severe and further a failure to enclose such documents, in turn failing to appraise the Court of the retainer, may result in a Bill of Costs being assessed at nil for want of evidence of a valid retainer.

If the request is for an Assessment of costs claimed in excess of £75,000.00, such an assessment will not be dealt with provisionally and thus the appropriate box confirming the cost claimed are over £75,000.00 should be ticked and an estimate of the anticipated time required for the hearing given. However where the costs are £75,000.00 or less then the other box should be ticked and an additional copy of the bill, together with a Statement of the Costs claimed in respect of the assessment provided, based on the assumption that there will not be an oral hearing, enclosed with the N258. When preparing the Statement of Costs in respect of a Provisional Assessment, whilst such costs are limited, in respect of between the parties recovery, under the cap prescribed by CPR 47.15(5) to £1,500.00 plus Vat and court fees, there is no requirement to so limit the schedule and, indeed, it is the writer’s view that showing the full extent of the costs actually incurred in the assessment process can only serve to enhance recoveries for the successful party to as close to, if not actually at the limit prescribed.

Where Part 8 (costs only) proceedings have been issued the a separate Statement of Costs should be prepared for those costs as the limitation under CPR 47.15(5) relates to the “…costs of the assessment…” only and thus should not include any other elements(3). (1) http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n258-eng.pdf (2) www.justice.gov.uk/courts/procedure-rules/civil/…/new-precedent-g.pdf (3) whilst there is, as yet, no formal authority in this regard, the matter of Tasleem v Beverley [2013] EWCA Civ 1805 provides a useful guide as to what constitutes costs of assessment and what does not