Preparing for a provisional assessment

Provisional assessment is meant to take place without the judge undertaking the assessment seeing the receiving party’s file of papers.

The Senior Courts Costs Office has apparently recognised that this is costs cuckoo land and will be requiring receiving parties to file their full papers in all cases (a requirement the court is permitted to impose under the rules).

At first blush this is a step that both paying and receiving parties will welcome. However, there is a sting in the tail for receiving parties.

Costs Judges and Costs Officers are not going to have the time to wade through a box or boxes of jumbled papers looking for a copy of an advice from counsel or a relevant attendance note. It will be essential to ensure the papers lodged with the Court are in apple pie order. This probably means all relevant papers need to be fully bundled, indexed and paginated. This will be a time consuming task for bills of up to £75,000. The more challenges made the more papers need to be carefully identified in the index so the judge can quickly locate the item.

All this extra work comes out of the £1,500 maximum costs recoverable for the provisional assessment process.

13 thoughts on “Preparing for a provisional assessment

  1. Simon,

    A great point – another one that appears to have escaped any considered scrutiny. However it appears that actually the issue goes further.

    I think that on any analysis of PD 14.2(2) it is clear that the file of papers has to be lodged with the request for the provisional assessment in any event.

    PD 13.12 defines what the papers in support of the Bill are and how they should be organised and PD 14.2(2) makes it clear that PD 13.12 applies to provisional assessments.

    Given that PD 13.11 (the PD requiring the ‘supporting papers’ to be lodged 7 days before a hearing) is excluded by PD 14.2(2) the only logical conclusion is that those papers must be filed at the same time as the request; a conclusion that is reinforced by PD 14.4 (1).

    It therefore appears that, pursuant to PD 14.4(1), until the Court has received the file of papers (organised as directed by PD 13.12) the Court does not have to begin to list the hearing!

    I agree with you that all of that is quite a lot of work in any assessment, particularly bearing in mind the restriction on the costs.

    The only good news for the receiving party, if there is any, is that since PD 13.14 does not apply to provisional assessments the receiving party will not have to attend Court to remove the papers at the end of the process! They will just have to rely upon the Court returning them!

    What I suspect this will all lead to is unsuspecting Courts soon becoming inundated with files of papers they are not expecting; the Court having to pay to return said papers; and, the Judge (in whichever Court) having far more paperwork before him than any of them are expecting, leaving aside the SCCO! (will this lead to the Judge deciding the case is not suitable for a provisional assessment???)

    Now I am not entirely sure that any of the above is what was intended within provisional assessment, however that is what PD 14 says – and unfortunately if we wanted to ignore PD 14, the new CPR 47.15(2) says the parties MUST comply with Part 47 as modified by PD 14!!!

  2. Someone’s had textbook for breakfast this morning!

    In all seriousness though this is very interesting reading. I fear that we’re all in for a roller-coaster ride with all these changes. Let’s see who can hold on the longest!

  3. @ Simon – oh look, how many Defendants will be jumping on making huge amounts of daft challenges (no change there then!) as a means to force acceptance of nonsense offers

    @ Dominic your rationing re: PD 13.11 is flawed – the rules do NOT require the full file of papers to be lodged when the N258 is sent to the Court, PD 13.11 is excluded from Provisional Assessment for the very reason the scheme does not need the Court to see the file, and how you extrapolate the reference to PD 13.12 as meaning in default the file has to be lodged?? Costs War 74 and climbing……

  4. Have you seen Part 45. It says Fixed Cases and then refers to Fixed Costs thereafter! weird

  5. I have always prepared a fully paginated bundle in accordance with the points of dispute (minus those points agreed prior to assessment).

    Judges/Officers etc like this and it does assess better.

    Although the rp gets a better assessment, it is very time consuming and, if my solicitor clients want a ‘truly eminent’ service they have to pay over the amount recoverable inter partes for the same. Simples.

    I will not be changing this system if (and when) any Court requests the papers after the bill has been lodged for PA.

  6. @ Anonymous 9.11

    Thanks for your comments but sorry I don’t agree… I thought the same as you initially, however when you go through the rules and the PD (as set out above) it becomes clear that the file must be supplied.

    If your analysis were correct then the Costs Judges and Costs Offices within the SCCO do not have the power to request the papers at all – and they are certain that they do!

    To recap my analysis, in short(ish) order:

    PD 14.4(1) says “on receipt of the request for detailed assessment and supporting papers…”.

    The only guidance/definition of what is the ‘supporting papers’ (or papers in support of the Bill) is given at PD 13.12.

    By PD 14.2(2) PD 13.11 is excluded from PA – however PD 13.12 is specifically included within PA.

    The above gives rise to the question why would PD 13.12 be left in as specifically applying to PA unless those ‘supporting papers’ are what is required to be submitted to the Court.

    We then return to PD 14.4(1) which says ‘on receipt of… the supporting papers’.

    The position re the file of papers being required to be available is further enforced by the inclusion of PD 13.13 as applying to PA – for the Court to consider a document it must be before the Court. (I do however of course accept that PD 13.13 then goes on to deal with disclosure of documents between the parties etc which is clearly not relevant to a PA).

    Finally I say the exclusion of PD 13.14 is solely there because the receiving party will not have been at the assessment and not because the supporting papers will not be there.

    If PD 13.12 (and for that matter PD 13.13) was/where to be excluded then clearly PD 14.2(2) could read, “… 13.11 to 13.14″ as it does with 13.4 to 13.7 – however the persons responsible for drafting the Rules and PDs have clearly left 13.12 in.

    I of course accept that this may well not have been the intention (and certainly it flies in the face of what PA should be about in my view) however what we are left with is what the Rules and PDs say and, as above, CPR 47.15(2) says we MUST comply with the contents of PD 14 – in this brave new world of the court focusing on compliance with rules and PDs is it really worth running the risk?

  7. I’m pretty sure that common sense will prevail. If a party gets it wrong to begin with then the Court will allow some leeway so that you can get it right the next time.

  8. John,

    I quite agree that, hopefully, common sense should prevail!

    My posts were more intended to highlight yet another issue that appears to have escaped the authors of the Rules and PDs and to point out to practitioners that once again an element of the Jackson/Civil Costs reforms does not actually marry up between the understood intention and the final resulting Rules and PDs!

    I quite agree with you that we are in for a roller-coaster ride for the foreseable future.



    PS – textbooks make a lovely breakfast!!!! I can highly recommend them… And let’s face it given the new rules changes there are lots of textbooks/costs tomes that are no longer up to date – plenty of fodder then… Hopefully they will make up for my missing champers that Simon appears to have forgotten about!!!!!

  9. I don’t know any of the individuals who writes the rules or practice directions, maybe some folk on here do? All I know is that they are a comity. But I’d hazard a guess that non of them actually practice in costs.

    If they actually had a costs practitioner on the comity then there could of been a chance that these new rules would have been easier to follow.

    If you want to blame anybody, blame the Government and specifically, the MoJ. If they had given the rules comity more time to draft the new rules, then they wouldn’t have been in such a mess as they are now.

  10. @ Dominic sorry, all you are highlighting is an area where there is no problem, save for how you chose to interpret it. The PD exclusions are clear, and for a reason.the point of the Provisional Assessment, and which follows the Pilot, is to deal with the costs claim expediently and proportionately – which your interpretation is anything but. the fact the SCCO are want to comment specifically that they WILL ask for the papers (when they are not needed under the Provisional Assessment scheme otherwise) does tend to suggest they also know the papers arent needed. But good luck with you lodging the bundles or arguing with those who dont

  11. Dominic’s reading of the rules is correct but this appears to be (surprise, surprise) another drafting error.

    I had spotted this problem as well and will try to post on this in the next few days.

  12. Common sense, and previous procedure, suggests that the supporting documents comprise the bill, PODs, replies, disbursement vouchers and orders.

    The file of papers can be submitted to the court, if requested, between 7 and 14 days prior to the assessment hearing.

    Why all the fuss? Nothing has changed..

  13. Pingback: Legal Costs Blog | 1essexcourt

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