Can Costs Judges count?

Well, obviously, but what I really want to know is whether they are now meant to do their own detailed arithmetic.

Amongst the documents to be filed with the court when requesting a provisional assessment under the new Practice Direction 14.3(d) to Rule 47.15 are:

“the offers made (those marked “without prejudice save as to costs” or made under Part 36 must be contained in a sealed envelope, marked ‘Part 36 or similar offers’, but not indicating which party or parties have made them)”

And Practice Direction 14.3(c):

“…a statement of the costs claimed in respect of the detailed assessment drawn on the assumption that there will not be an oral hearing following the provisional assessment”

That would seem to suggest that at the conclusion of the provisional assessment the judge will open the sealed envelope, see what offers have been made, decide liability for the provisional assessment and assess the same based on the statements filed. (Although why does it refer to “statement” in the singular?)

If that is so, judges are going to be in for a fright when they realise how long it takes to recalculate a bill of up to £75,000 when they adjust the hourly rates claimed and adjust the applicable VAT rate. It is also likely to lead to some “interesting” final figures. At the end of a detailed assessment no two law costs draftsmen ever get the same figure at first attempt.


Practice Direction 14.4(2) provides:

“Once the provisional assessment has been carried out the court will return Precedent G (the points of dispute and any reply) with the court’s decisions noted upon it. Within 14 days of receipt of Precedent G the parties must agree the total sum due to the receiving party on the basis of the court’s decisions. If the parties are unable to agree the arithmetic, they must refer the dispute back to the court for a decision on the basis of written submissions.”

That seems to suggest the judge won’t do the calculations at the end of the provisional assessment. Why then require costs schedule(s) to be filed with the request for the provisional assessment if it is known that further work must be undertaken (doing the arithmetic) but the amount of work required will not be known? For some bills the extra work needed may be relatively minimal but for others may be more drawn out, particularly where there is disagreement between the parties.

Further, in this situation if the parties have to do the arithmetic, what is the normal mechanism for then asking the court to determine liability for the costs of the provisional assessment where the parties cannot agree? Practice Direction 14.6 provides:

“If a party wishes to be heard only as to the order made in respect of the costs of the initial provisional assessment, the court will invite each side to make written submissions and the matter will be finally determined without a hearing. The court will decide what if any order for costs to make in respect of this procedure.”

Is this going to become the norm for anything but the most clear cut of cases? Remember, the receiving party is doing all this for £1,500 (to include VAT, court fees, additional liabilities and, arguably, the costs of drafting the bill).

The provisional assessment process was intended to be simple and cheap.

It’s not simple because the rules have been so poorly drafted we don’t know how it’s meant to work. It looks increasingly as though it won’t be cheap (notwithstanding the cap on the recoverable costs).

8 thoughts on “Can Costs Judges count?

  1. How much more of a debacle can this become!!

    On a lighter note, I am pleased to note that it is not only on Detailed assessments that I have conducted that the Costs Draftsmen do not arrive at the same figures!

  2. given the increased number of provisional assessments taking place I wonder how many of the judges annotated copies of the Bill will get lost in the DX

    Or do we expect the judges to stand at the copier and send out only copies??

  3. Thank God we live in a paper society, heaven forbid that a standard electronic bill be delivered to the Court, so hourly rates, number of items or times could be easily adjusted and the total costs calculated automatically.

  4. I wonder how the paying party would feel upon receipt of that most wonderous of things (for the receiving party) – a bill marked “assessed as drawn”.

    It has been a while since I have done any legal aid work but around 60% of bills were marked as such. I put it down to superior drafting rather than not extracting enough fees from a file…

  5. On a completely differant note…I have seen an article written by a well respected authority on costs that the indemnity principle is not applied on CFA’s post 01/04/2013, is this correct?. I have seen nothing in the rules regarding the indemnity principle being scrapped.

  6. Not sure which ‘well respected’ authority that was, but they may be a little less well respected henceforth if they have genuinely stated that the indemnity principle has been disapplied to post 1st April CFAs.

    There has been no such disapplication. Indeed, one of the problems caused with DBAs is that the MOJ has made it clear that the indemnity principle will continue unabated and therefore apply to those as well as CFAs, causing difficulties (where the Ontario model is used, as the rules provide for) when reasonable notional interpartes costs exceed the percentage fee payable under the DBA.

    Would be interested to see a link to the article, because it would be a surprise to see a respected authority state the contrary.

  7. Sorry – should have added. I am aware of Kerry Underwood’s article ( where he refers to the indemnity principle ‘not applying’ in certain contexts.
    Where he refers to CFA success fees, I believe the point he is making there is that, because the success fee is irrecoverable inter partes, the indemnity principle is irrelevant. You are not claiming the success fee, so there is no issue.
    As to the CFA more generally, I think he may be seeking to make the point that in the context of fixed costs the present approach, whereby the fixed costs are payable inter partes regardless of whether this would breach the indemnity principle, is likely to continue. That is not a change, but reflects existing case law.
    Kerry is, of course, very well respected (and rightly so) and is more than capable of speaking for himself, but I don’t think his article (if that is the one being referred to) was meant to suggest that there was some general or new disapplication of the indemnity principle to CFAs entered into post 1st April. If it was (which I doubt), then with respect, I think he was wrong.

  8. Pingback: Provisional assessment and proportionality |

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