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The new rules for provisional assessment will apparently follow the provisional assessment pilot scheme which requires the receiving party to file with the court not much more than a copy of the bill of costs, a copy of the points of dispute, a copy of any replies served, a copy of all costs orders and copies of the fee notes.
The solicitors’ actual file of papers does not need to be filed.
Given provisional assessment will apply to bills up to £75,000 it may well cover claims for costs that include, for example, a conference with counsel and a medical expert together with two fee earners from the solicitors. How is a judge possibly meant to consider the reasonableness or, where appropriate, the proportionality of that step without sight of the instructions to counsel or the expert and without sight of the relevant attendance note?
Provisional assessment may well be intended to amount to rough justice but the new rules have abandoned even the merest pretence of offering any form of justice to either party. Implementation of the Jackson reforms is rapidly descending into an omnishambles.
Apparently the Senior Courts Costs Office has recognised the unworkable nature of these rules and will require in all cases before them, as they are entitled to order, that the solicitors’ full papers are to be lodged. The SCCO is to be heartily congratulated on this step, not least because they obviously recognise the extra drain this will undoubtedly place on their already stretched resources.
Best of luck if you find yourself outside London.