Nature of oral hearing following provisional assessment


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Interesting blog post from Andrew Hogan suggesting that an oral hearing following a provisional assessment is by way of a “review” rather than a rehearing, and that the court should not consider additional documents that were not before the court at the provisional assessment stage. The basis for this suggestion is the wording of CPR 47.15(8):

“The written request referred to in paragraph (7) must – (a) identify the item or items in the court’s provisional assessment which are sought to be reviewed at the hearing”

This is not the interpretation put on the rules by the authors of Cook on Costs 2015:

“At the hearing the court will consider afresh the issues raised.”

I seem to recall this issue arising at the Association of Costs Lawyers’ Annual Conference and the view being expressed that the term “reviewed” is not meant to be viewed in the technical sense of “review”, as used when referring to appeals, but has an ordinary meaning.

As a matter of common sense, this makes sense. Different courts have different procedures as to what documents should be filed in advance of the provisional assessment. It would be odd if courts at an oral hearing were differently restricted as to what documents they were entitled to consider at an oral hearing where the rules make no such limitation.

Nevertheless, this does appear to be another example of a badly drafted element of the rules. If an oral hearing was to be by way of an appeal, the rules should clearly state as much. Equally, if it is by way of a rehearing, the wording should refer to “reconsidered” rather than “reviewed”.


4 thoughts on “Nature of oral hearing following provisional assessment


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    Anonny on said:

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    Badly worded costs rules! Whatever next.


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    Anonymous on said:

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    what’s the fuss (again!)

    the PA system of Oral Hearing, is just the same as the old review of a legal aid assessment, and decided on the same facts and papers as the original

    I think its sad so many draftsmen spend so much time looking for what they can criticise in the rules, rather than getting on with complying with them!


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    Functus Officio on said:

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    Oh for the days when the Chief Costs Officer (as then existed ) and his ilk acted as brakes on Masters and Rule Drafters.. Does anyone remember those care free days that used to follow any Rule or Practice change ?
    He was not only from the coalface, but actually opened the mine.


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    Anon on said:

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    Anonymous appears to be overlooking that on the legal aid review, the LSC would have the full file of papers; that is not true in the provisional assessment process. The SCCO requires all papers to be filed, but most courts do not.

    The parties do comply with the rules in not filing the papers. However, what if, as appears to be happening so often, the court falls into error on a decision because they have not seen all of the papers?

    Further, in addition to the comments in the White Book, even the Report on the Provisional Assessment Pilot – paragraph 3.4 – considered that “provisional assessment should be seen as the first of a two stage process… The oral hearing should not be seen as an appeal against the PA, but rather as a second stage of the process before the assigned district judge”.

    This has to be right in my view as to consider it otherwise could open the door to significant injustice as the court does not generally have the full papers on the PA. The definition of review must therefore be that of a re-hearing or there could be another ECtHR challenge coming on years from now!

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