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?
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.)