The new rules governing Part 36 offers made in respect of costs do not apply to detailed assessments “commenced” before 1 April 2013.
The transitional provision concerning Part 47.19 offers confirm this. They can be found tucked away in the Transitional Provisions to the Civil Procedure (Amendment) Rules 2013 at s 22(1):
“The provision made by rule 47.20(1) to (5) and (7) in the Schedule (liability for costs of detailed assessment proceedings) does not apply to detailed assessments commenced before 1 April 2013 and in relation to such detailed assessments, rules 47.18 and 47.19 as they were in force immediately before 1 April 2013 apply instead.”
This is a very important provision as Part 36 has now been incorporated into detailed assessment proceedings by CPR 47.20(4). However, that section is expressly excluded from cases where detailed assessment is commenced pre-1 April 2013 by the transitional provision referred to above.
Surprisingly, this provision is not contained within the body of the CPR or the Practice Direction to the new CPR 47 (concerning Procedure for Detailed Assessment of Costs and Default Provisions). Nor is it contained within the Transitional Provisions section of the Practice Direction to the new CPR 48. Inevitably this has led to some understandable confusion among Solicitors and Costs Lawyers alike.
It is however clear that under the transitional provisions for cases where detailed assessment proceedings were commenced before 1 April 2013, a party cannot make a Part 36 offer in respect of costs (or repeat a previous offer as a Part 36 offer) post 1 April 2013 and expect it to have the effect of a valid Part 36 offer.
For the avoidance of doubt, Assessment proceedings are commenced by serving a signed Bill and formal Notice of Commencement.
Jim Knight, Partner and Costs Lawyer, Harmans