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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”.