Overcoming problems on commencement of Detailed Assessment – CPR 47.6

Overcoming problems on commencement of Detailed Assessment – CPR 47.6

We have written previously on this blog about the need for great attention to detail when serving a bill or lodging it for assessment. A recent case in which we have been involved highlighted some of the complications which can arise when parties get it wrong.

Detailed Assessment proceedings are commenced in accordance with CPR 47.6 by the service of a Notice of Commencement together with a Bill. It may be of some assistance to consider these documents to be like a Claim Form (the Notice of Commencement) and the Particulars of Claim (the Bill). This analogy can assist when trying to resolve problems which arise from defective service.

Regrettably it has been quite commonplace for bills to be served without the relevant information required in support of Success Fees. As practitioners will recall, under the rules as they existed prior to the 1st April 2013, where a Success Fee was to be claimed, it was necessary to serve a Statement of Reasons setting out the basis upon which the Success Fee had been calculated and a Statement of Definitions of various terms used in the CFA (e.g. “win” “lose”). The relevant provision was PD 47 paragraph 32.5.

Where a Bill was served without these documents, but still claimed a Success Fee, Points of Dispute would inevitably be served which would seek for the Success Fee to be disallowed pursuant to CPR 44.3B. It would therefore, usually, be necessary for the receiving party to have to make an application for relief from sanctions to overcome that difficulty. In the period post Mitchell that application would probably not have been successful, whereas post Denton a paying party who contests the application might find themselves liable for the costs. However, of fundamental importance is that it is not within the gift of the paying party to grant relief from sanctions and the Success Fee would remain unrecoverable in the absence of an Order from the Court granting that relief.

Due to the costs of the application and the potential uncertainties over success, other methods have been deployed to attempt to overcome the problem.

This is where the analogy between the Detailed Assessment documents and Claim Form/Particulars of Claim comes in. What really needs to happen is for the Bill to be amended to include the missing documentation. Leave of the Court is not required to amend the Bill (PD 47 paragraph 13.10 (2) but at a hearing the Court may or may not allow the amendment or may only allow it upon terms, probably as to costs. There would still need to be the application for Relief from Sanctions because the proper documentation was not served with the original Bill.

Another option is to try to start all over again. However, there are several procedural implications with that.

The first Notice of Commencement remains live until such time as there is formal Notice of Discontinuance. The Detailed Assessment proceedings cannot simply be withdrawn on the whim of the receiving party. Any attempt to simply serve a new Notice of Commencement without dealing with the original would therefore amount to an abuse of process and will almost inevitably be struck out on an application.

Further where, as will very often be the case, an interim payment has been made prior to service of the Bill, a party may only discontinue if the paying party consents in writing or if the Court grants permission (CPR 38.2 (2) (b).

There is yet another problem from CPR 38.7 because the Court’s permission is required if, after service of a Defence (which in the context of Detailed Assessment proceedings would equate to the Points of Dispute), a party wishes to commence proceedings based upon the same facts. Again, in the context of Detailed Assessment, that would mean starting a second set of Detailed Assessment proceedings arising from the same Order for costs.

For all of the above reasons, trying to “rip it up and start again” is probably not a viable (but certainly not an economic) option.

If a mistake has been made it is better to bite the bullet, amend the Bill and make the application for relief.

Better still, check and double check the documents before you serve them in the first place.