The Summary of the changes to Part 47 on the Ministry of Justice’s website states, in relation to points of dispute/replies, that they must be “short and to the point”:
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.
This leaves both the receiving party and the paying party with something of a dilemma, especially where the matter will be dealt with by provisional assessment in a County Court by a District Judge who may have had little training and will have little time set aside to deal with the assessment of some quite large bills.
Whilst we all welcome some clarification, albeit commentary not authority, none of us can be confident that those making decisions will have the training and familiarity with the authorities and “well known judgments” that is necessary. Will they have the time or the will to seek out and read the authorities, rules? At least we did have the opportunity on detailed assessment to be heard on the relevant case law and authorities.
In the very dim and distant past we attended ‘taxations’ with absolutely no warning about the issues that might be raised on a bill and often found that the District Judges were ill informed/ ill prepared to deal with those that arose. It truly was, in those days, a case of the best advocate with the most knowledge that won the day.
Once Points and Replies were introduced we often received points of dispute which ran to two or three pages explaining the background and quoting big chunks of Lownds or some such well known decision – my usual response to which was that neither I nor the court required educating. At the other extreme we often have points that are short and to the point and say “not recoverable inter partes” to which my response is “Why not”.
On bills of substance when both the paying and receiving party are represented by Costs Lawyers (or others) who have a good knowledge of their case and all appropriate Rules, Practice Directions, authorities and judgments then our experience here at Harmans is that matters can still be resolved by negotiation at this stage providing there is not some particularly sticky issue. With experience most of us have a fair idea of what the outcome of an assessment might be and we tailor our advice to our clients accordingly. However, much of that experience derives from our attendances and our colleagues’ attendances at court and listening to the decisions given. We are not sure that we will continue to be able to advise based on real outcomes as we think it unlikely that we will receive detailed or reasoned decisions from the court.
Immediately below on the same page of the MoJ website we find the real sting:
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 any party is dissatisfied with the assessment an oral hearing will be fixed. If the dissenting party achieves an adjustment in its favour by 20% or more they will not be required to pay the costs of the oral hearing.
Whilst it remains far from clear just what is covered by the £1,500.00, it seems reasonably clear that this process is rarely going to leave either party feeling happy. The monetary difference between a 20% increase being achieved by the receiving party and a 20% decrease being achieved by the paying party on a bill of that size may be a significant sum, but without detailed indications as to why decisions have been made the decision to seek a full assessment may be something of a lottery.
This highlights yet another uncertainty arising from the introduction of the new rules under the Jackson reforms.