Part 47.19 transitional provisions

The new civil procedure rules, regulations, etc appear to have more transitional provisions than there are grains of sand in the Sahara.

Understanding not just the rules but also the relevant transitional provisions is crucial. (See for example how the transitional provisions treat the new proportionality test.)

Offers in detailed assessment proceedings are currently governed by CPR 47.19. From April Fools’ Day (AFD), Part 47.19 disappears and Part 36 applies to detailed assessment proceedings.

What do the transitional rules say about a successful Part 47.19 offer made before AFD where costs come to be assessed after AFD?

Absolutely nothing.

There is no corresponding transitional provision.

So what does a paying party who believes he has made a good Part 47.19 offer back in January do if the matter is not settled pre-AFD? Schoolboy Error No.1 is to repeat the offer as a Part 36 offer post-AFD. Acceptance of the Part 36 offer would immediately deprive the paying party of any right to any of their detailed assessment costs and would give the receiving party a right to all their assessment costs up to the date of acceptance (including those incurred after the reasonable offer was made).

A paying party is probably best to leave the offer in place.

The general presumption remains that the receiving party is entitled to their costs of the assessment proceedings. The new CPR 47.20(3) states:

“In deciding whether to make some other order, the court must have regard to all the circumstances, including—

(a) the conduct of all the parties;
(b) the amount, if any, by which the bill of costs has been reduced; and
(c) whether it was reasonable for a party to claim the costs of a particular item or to dispute that item.”

The paying party has to hope a court is persuaded that “all the circumstances” includes a successful Part 47.19 offer made pre-AFD.

But seriously? No transitional provision to govern this?

(See correction following this post.)

10 thoughts on “Part 47.19 transitional provisions

  1. Simon, the paying party never before had any “right” to their DÅ costs – that right always was with the receiving party. It does so annoy me when defendants bang on about their “rights” when they have none in this area

    Part 36 however now offers to change that right.

    The new 47.20 will not confer any right to consider an offer made under a repealed Rule – I suggest, the court will properly advise paying parties who do not revise their per AFD offers into open or calderbank offers, to suffer the costs consequence of their inactivity

  2. I am surprised you complain about the use of the word “right” as being inappropriate when referring to paying parties under the current rules but believe it is appropriate for receiving parties. If you wish to be pedantic about the terminology, neither party has a “right” to the costs of assessment. It is always in the discretion of the court. There is no more than a starting point presumption that a receiving party gets their costs of assessment. That is not a “right”. In my experience, this is invariably overturned if the paying party makes a successful Part 47.19 offer. Repeating an offer as a Part 36 offer runs the risk of the paying party losing any “right” to seek their assessment costs.

    As to the position post-April, I disagree. A Part 47.19 offer now is simply “a written offer to settle the costs of the proceedings which gave rise to the assessment proceedings and the offer is expressed to be without prejudice save as to the costs of the detailed assessment proceedings”. To suggest such an offer is no longer part of “all the circumstances” the court must consider would be bizarre. Even if Part 47.19 has disappeared, which it will, it would then convert such offers into admissible “Calderbank” offers.

    The point I make is that the position should have been addressed by transitional provisions rather than leave the issue open to the kind of satellite litigation your interpretation would invite.

  3. Well said Simon. I wouldn`t like to oppose you at a DAH. You are cleverer than a frog with a thesaurus.

  4. @Simon I do not wish to be ‘pedantic’ – I refer to what the rules say; rules which in other circumstances as suit you are want to highlight to promote this blog as giving rise to areas of issue as you see them

    Regarding 47.19 offers. Post 01/04, they do not exist. You have said as much yourself . If you consider this constitutes something under “all the circumstances”, I wish you and your clients well. Suggesting existing 47.19 offers will become admissible “Calderbank” offers is an astonishing leap of faith, and not what “Calderbank” says

    Your blog essentially is an interpretational invite to satellite litigation, save if one accepts all you say is gospel . See you in Court

    @ Annon bring your fragasaurus to court, I look forward to it

  5. The new CPR 44.2(4), dealing with “Court’s discretion as to costs” generally, reads:

    “In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including … (c) any admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer to which costs consequences under Part 36 apply.”

    “All the circumstances” therefore expressly includes any admissible offer. A “written offer to settle the costs of the proceedings which gave rise to the assessment proceedings” and which “is expressed to be without prejudice save as to the costs of the detailed assessment proceedings” (ie currently a Part 47.19 offer) will not cease to be an “admissible offer” simply because Part 47.19 itself does not appear in the new rules.

    Best of luck if you will be advising your clients they do not need to worry about Part 47.19 offers made before April 2013 as they will no longer have any “force”.

  6. When asked how he chose a new general for his armies, he replied “Is he lucky?”

    All defendant offers I have currently seen refer to being “pursuant to Part 47.19CPR”. Inadmissible post revocation of that rule. Luck not required ;)

  7. How does the addition of the wording “pursuant to Part 47.19 CPR” render an offer “inadmissible”? The phrase “inadmissible offer” is usually used in the context of an offer made simply “without prejudice” or treated as being such. Self-evidently an offer made under Part 47.19 does not fall into that category. The fact that Part 47.19 disappears from the rules does not alter the fact it is an offer “expressed to be without prejudice save as to the costs of the detailed assessment proceedings” and quite clearly remains an admissible offer.

    If you provide your name I can keep an eye out to see what success you have running your argument.

  8. Whilst I am loathe to enter the ‘discussion’given the level of heat it is obviously generating, in an attempt to save you from yourselves….

    I think you will find that the answer lies in paragraph 10 of the transitional provisions. Said provision makes it clear that ‘current’ CPR 47.18 and 47.19 apply to detailed assessments “commenced” before 1 April 2013. Equally the provision makes it clear the ‘new’ 47.20 (1) – (5) & (7) do not apply to assessments commenced before 1 April 2013. (And just for you pedants out there I accept that paragraph 10 of the transitional provisions actually says the above in reverse, ie that 47.20 etc does not apply to assessments commenced before 01/04/13 etc etc – I have deliberately referred to it the other way round for ease).

    Now hopefully we all agree that the transitional provision is clear about when and where CPR Part 47.19 will and won’t apply thus saving us all from the above referred to satellite litigation! However clearly such arguments arise over the meaning of when the detailed assessment “commenced”…

    I rather suspect that the above point will determine the applicability or otherwise of CPR 47.19 post 01/04/13, ie is it when the hearing commenced at Court? Is it when the N252 etc was served? And so on…

  9. I was about to post to the same effect as Dominic, that there are transitional provisions and it will only be an issue for a few cases where offers have been made pre a N252 (and any Part 8 proccedings for pre-action claims) that it may be an issue.

  10. Pingback: Costs estimates transitional provisions |

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