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The note on the Ministry of Justice’s website explaining the new amendments to the CPR (this note does not appear to carry any authority itself) states:
“The rules relating to assessment of costs are redrawn to ensure that material presented to the court is relevant to the particular bill of costs and sets out any contentions clearly and concisely. Referral to authorities, quoting of well known judgments and explanations of and responses to individual points of dispute are discouraged.”
If there was one way to guarantee this will not happen what would that be?
The answer is to be found immediately below:
“The process for detailed assessment in which the costs claimed are £75,000 or less is amended. The court will undertake a provisional paper assessment of the bill, and the costs of the assessment will be limited to £1,500.”
If the Ministry of Justice is able to provide a list of the “well known judgments” it has in mind and confirm that all judges who will undertake provisional assessment have passed a test proving they are 100% familiar with the principles established from such judgments I might have rather more faith.
My firm cannot be alone in experiences along the following lines:
1. Despite the District Judge clearly having spent some time reading the relevant guidance in the Green Book in advance of the detailed assessment hearing, it still taking two experienced law costs draftsmen the best part of half-an-hour to explain how the old proportionality test works and what the consequences for the detailed assessment hearing would be if he made a preliminary finding the costs were disproportionate.
2. A judge asking, when referred to the “well known judgment” of Wraith v Sheffield Forgemasters, what the case says on the subject of hourly rates.
3. A Regional Costs Judge not knowing the approach to take following Hollins v Russell to the recoverability of disbursements where there has been a finding that the conditional fee agreement is unenforceable.
4. A case that included a dispute concerning whether the correct documents in support of an additional liability had been served with the bill. The matter listed for half a day. The matter having to be adjourned because the District Judge was struggling to find his way around the Green Book and couldn’t locate the Costs Practice Direction. Upon the matter being relisted the judge continuing to find the matter so taxing that he adjourned the matter again for written submissions. At this stage the parties gave up and compromised the case.
(Feel free to add your own examples.)
Those who believe all judges who will undertake provisional assessment will be fully aware of the rules (both new and old), the relevant transitional provisions and all relevant case law are living on costs cuckoo land.
In the past it might have been sufficient to raise a dispute concerning work done arranging an ATE policy thus:
“Not inter partes. Disallow.”
If the matter went that far, the law could be set out orally at a detailed assessment hearing and the relevant authorities referred to there.
It is now doubtful it is sufficient to say:
“These costs relate to funding. Such costs are irrecoverably as per paragraphs x,y and z of Motto v Trafigura Ltd  EWCA Civ 1150.”
Is a District Judge unfamiliar with the case really going to go away, locate the case and read the relevant sections?
The following is now probably required:
“The Defendant objects to items claimed liaising with the Claimant’s legal expense insurer and refers to paragraphs 108, 114 and 145 of Motto v Trafigura Ltd  EWCA Civ 1150:
“I do not agree with the Judge’s decision on this issue, so far as any costs in establishing and setting … the ATE insurance policy are concerned. …
I have reached the conclusion that the costs incurred by Leigh Day in discussing the progress of the litigation with the ATE insurers, and taking their instructions in that connection, are not recoverable from the defendants. The precise dividing line between recoverability and irrecoverability is, perhaps inevitably, somewhat blurred and subjective. However, as I see it, the cost incurred in having such discussions and taking such instructions was not so much a cost of the litigation as a cost which was collateral to the litigation, being a cost incurred to ensure that the claimants were not at risk on costs.
…Contrary to the Judge’s conclusion, I do not consider that the claimants can recover … any costs incurred in discussing the litigation with, or taking instructions from, with the ATE insurers”
Of course, this approach may mean some law costs draftsmen and costs lawyers have to go away and read the actual judgment to be able to quote the relevant section. Some may be surprised that the case they have always relied on as authority for a certain proposition is actually no such thing.
Similar considerations are likely to apply when referring to relevant sections of the CPR or corresponding Practice Direction. It may be sensible to quote the actual wording rather than trust the judge to find and read the relevant section, particularly in a year or two’s time where the old rules are relevant but have probably disappeared from the White/Green Book.
The relevant section of the Practice Direction does not actually preclude reference to authority. Rather it states Points of Dispute must be: “must be short and to the point”. That is a rather subjective concept and I rather suspect some District Judges will welcome concise Points of Dispute that nevertheless include sufficient authority for the proposition being put forward.