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The concerns the Senior Court Costs Office has over the ability to properly undertake a provisional assessment based on the limited documents required to be lodged with the court has apparently led them to recommend to receiving parties that they lodge the full file when requesting assessment.
The SCCO has apparently decided not to make this a mandatory requirement as they do not believe they have the power so to order, although they are of the view that parties who fail to lodge the full file will be at a serious disadvantage.
I understand a North East Regional Costs Judge has given similar guidance and expressed the same view as to the courts’ powers.
In fact, I think the rules are clear that the courts can order that the full file is lodged, if they so wish.
In relation to provisional assessment, PD 47 paragraph 14.2 reads:
“The following provisions of Part 47 and this Practice Direction will apply to cases falling within rule 47.15 –
(1) rules 47.1, 47.2, 47.4 to 47.13, 47.14 (except paragraphs (6) and (7)), 47.16, 47.17, 47.20 and 47.21; and
(2) paragraphs 1, 2, 4 to 12, 13 (with the exception of paragraphs 13.4 to 13.7, 13.9, 13.11 and 13.14), 15, and 16, of this Practice Direction.”
Therefore, paragraph 13.13 of the PD does apply. That reads:
“13.13 The court may direct the receiving party to produce any document which in the opinion of the court is necessary to enable it to reach its decision. These documents will in the first instance be produced to the court, but the court may ask the receiving party to elect whether to disclose the particular document to the paying party in order to rely on the contents of the document, or whether to decline disclosure and instead rely on other evidence.”
The courts therefore do have the power to order that the documents to produce include the full file.
Whether it is appropriate for the courts to be making blanket orders to make up for the shortcomings of the rules is another matter…