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If I were a Costs Lawyer trying to prepare for 1 April 2013 I would be crying tears of bitter frustration at the shambolically thought out new costs rules.
D’oh. I am a Costs Lawyer.
If a party is unhappy with the outcome of a provisional assessment they can request an oral hearing. Liability for the costs of the hearing are dealt with by the new CPR 47.15(10):
“Any party which has requested an oral hearing, will pay the costs of and incidental to that hearing unless—
(a) it achieves an adjustment in its own favour by 20% or more of the sum provisionally assessed; or
(b) the court otherwise orders.”
This may be thought very harsh but it is clearly designed to discourage requests for oral hearings where a party is a bit unhappy about the outcome. Of course, in the context of provisional assessments of bills worth up to £75,000, a “bit unhappy” may represent a figure of up to £15,000.
The new Practice Direction 14.5 to CPR 47.15(10) states:
“When considering whether to depart from the order indicated by rule 47.15(10) the court will take into account the conduct of the parties and any offers made.”
Given Part 36 offers will apply to assessment proceedings, does a good Part 36 offer trump the 20% rule?
For example, a judge undertaking a provisional assessment wrongly allows work relating to funding which amounts to £200 on a bill otherwise assessed at £30,000. As the paying party, at the conclusion of the provisional assessment can I make an offer of £29,800 and then request an oral hearing knowing I have properly protected myself or will the 20% rule prevail? Will the court now take into account the new proportionality test and limit the recoverable costs of the oral hearing to an amount it considers proportionate to appeal a £200 decision? What advice do you give the client?