Oral Hearings following Provisional Assessment
The Rules relating to Provisional Assessment continue to give rise to confusion and uncertainty. In previous blogs, we have dealt with various aspects of the regime, but here want to focus a little on what happens if one of the parties decides to challenge the outcome of the initial assessment, conducted on paper by the Judge.
Practice in various parts of the County Court varies quite widely as to the requirements for Provisional Assessment. However, in general terms, they are carried out by Judges on the basis of just the Bill and then the Precedent G form of Points of Dispute/Replies. It may be that the Retainer documents of the receiving party will also have been lodged (although this is another area of confusion which we will perhaps return to in a future blog). The point is that the material before the Judge undertaking the assessment is extremely limited. Further, the amount of time allowed for the Judge to undertake the assessment will also, ordinarily, be fairly limited.
In those circumstances, it is not perhaps surprising therefore that one, or possibly both, of the parties to the assessment will find some aspect of the outcome with which they are dissatisfied. Examples of this abound, but it in particular where a receiving party has followed the letter of the rules in not making a response to a point of dispute because they have no concession to make, only then to find the Judge note in his decision that in the absence of a reply the figure allowed will be that set out in the points of dispute, then that receiving party may justifiably feel hard done by.
These issues emphasise the need for both Points of Dispute and Replies to be carefully formulated, but even where this is done, there may well be a desire to raise a challenge. The main issue which would deter a party from seeking such a challenge is that additional costs will be incurred in pursuing it to an Oral Hearing and the party requesting the hearing will be responsible for the payment of the costs incurred unless they achieve a 20% change in the outcome in their favour.
However, it is what happens (or should happen) upon an Oral Hearing that we want to touch upon here. The issue is what form the hearing should take. Some argue that it is a review of the original decision (using the wording of CPR 47.15 (8) (a)), whilst others argue that it is no more than the proper consideration of the particular item challenged for the first time.
The title of the process is “Provisional Assessment”. Many will say that the answer to the question in the preceding paragraph can be found in that title. They would argue that the initial paper exercise is just a part of the whole assessment process. If, based upon the provisional view of the Judge, the parties are content to abide by that decision, then all well and good and the decision becomes final if the parties accept it. However, until such time as the parties do accept it, it remains provisional and, crucially, that means there has been no final decision. It is simply a means to try and make the assessment process more cost-effective by avoiding the need for advocates to have to attend at a hearing. If the parties do not accept all or part of the assessment, then the hearing follows and that should be the same as a detailed assessment hearing as it ever was or continues to be on matters which are not within the provisional assessment limits.
This means that further material can be adduced and in particular, that would be the receiving party’s file of papers. Such papers are obviously a crucial part of any detailed assessment hearing and the Judge will ordinarily spend a good deal of time considering the file of papers when making a decision. As noted above, on a provisional assessment, the Judge does not have the benefit of those papers. Further, no doubt the parties would seek to expand upon the written submissions in the Points of Dispute/Replies, although the same rules which apply to detailed assessments generally would apply here, in that the permission of the Court would be required to raise novel points which had not previously been raised in the Points of Dispute/Replies. The costs sanction for a party failing to achieve a 20% swing would, in this context, simply be seen as an encouragement to the parties not to spend a disproportionate amount of time and costs in dealing with the outstanding issues.
The counter-argument bases itself very much upon the wording of CPR 47.15 (8) (a), which says that when requesting an oral hearing, a party must identify the item or items “which are sought to be reviewed”. It is that word “reviewed” upon which the argument rests that an Oral Hearing should be treated more like an Appeal. Following the formulation of the way in which Appeals should be conducted in Tanfern Ltd v Cameron- McDonald, the idea is that upon an Appeal the Court is simply to review the decision of the court below and not treat the hearing as a rehearing. Therefore, on an Appeal, the Court is simply interested in determining whether the decision was wrong or was unjust because of a serious procedural or other irregularity.
The argument goes that if an Oral Hearing is explicitly said to be for the purpose of a review, then the same considerations should apply. Thus, there should (in general terms)be no further evidence adduced and the issue would simply be whether the Judge got it wrong based upon the information before the Court at the time the initial paper assessment was conducted.
Although not a binding decision, in a recent case in the Liverpool County Court, HHJ Wood came down in favour of the former argument, i.e. that the Oral hearing was not an Appeal and that it was a component part of the detailed assessment as a proportionate means of dealing with such matters. He went on to find that although the hearing is limited to those items about which challenge has been raised, it should otherwise be treated as a detailed assessment. He therefore felt that additional material could be supplied. This was not perhaps the main thrust of the Judgment in Mehmi v Pincher, which was really looking at the consequences of a receiving party having failed to supply evidence of the retainer. However, it is a useful comment on this broader picture as to the true nature of an Oral Hearing.
Our view has always been the same as HHJ Wood, in that the initial paper assessment should simply be treated as provisional and the Oral Hearing treated exactly the same as a detailed assessment, albeit only of those items which remained in issue after the provisional stage. That seems to us not only to be logical from the wording of the rules, but also practical in terms of the requirements of justice.
It must be borne in mind that some of the Bills going to Provisional Assessment will be £75,000 or higher (if the Court considers that the £75,000 Provisional Assessment figure excludes VAT) and therefore there can be very significant amounts of money involved. It is simply inappropriate in those circumstances to suggest that the provisional assessment, based upon virtually no paperwork from the receiving party’s file, should stand as some sort of final order which can only be overturned based upon a different interpretation of the information before the Judge initially.
The costs sanction as provided for within the Rules means that petty issues will not be taken any further forward, but where there are issues of real substance, then the court should determine those issues based upon full information and with sight of all appropriate documentation.
Let us hope that this problem, together with all of the other issues raised about Provisional Assessments will shortly be the subject of some definitive ruling or guidance.