Provisional Assessment: to file or not to file

A current press release/bulletin from a reputable costs drafting firm advises receiving parties’ solicitors to inter alia ensure that their correspondence files and attendance notes are in apple pie order as the same must be lodged at court when requesting a provisional assessment.

Sound advice on any reading, the keeping of orderly files, but must a receiving party lodge the correspondence files and attendance notes when requesting a provisional assessment?

All references to ‘PD’ herein are references to the Practice Direction supplementing CPR 47 (which still, at the time of writing, has not found a home on the Justice website).

PD 14.3, relating specifically to provisional assessment under CPR 47.15, provides that:

…when the receiving party files a request for a detailed assessment hearing, that party must file—

(a) the request in Form N258;

(b) the documents set out at paragraphs 8.3 and 13.2 of this Practice Direction;

(c) an additional copy of the bill, including a statement of the costs claimed in respect of the detailed assessment drawn on the assumption that there will not be an oral hearing following the provisional assessment;

(d) the offers made (those marked “without prejudice save as to costs” or made under Part 36 must be contained in a sealed envelope, marked “Part 36 or similar offers”, but not indicating which party or parties have made them);

(e) completed Precedent G (points of dispute and any reply).

The document at PD 8.3 is the paying party’s open offer of settlement (being simply the net product of the paying party’s points of dispute being entirely successful? That’s for another day…), which must accompany it’s points of dispute. The documents at PD 13.2 are:

(a) a copy of the notice of commencement of detailed assessment proceedings;

(b) a copy of the bill of costs;

(c) the document giving the right to detailed assessment;

(d) a copy of the points of dispute, annotated as necessary in order to show which items have been agreed and their value and to show which items remain in dispute and their value;

(e) as many copies of the points of dispute so annotated as there are persons who have served points of dispute;

(f) a copy of any replies served;

(g) copies of all orders made by the court relating to the costs which are to be assessed;

(h) copies of the fee notes and other written evidence as served on the paying party in accordance with PD 5.2;

(i) where there is a dispute as to the receiving party’s liability to pay costs to the legal representatives who acted for the receiving party, any agreement, letter or other written information provided by the legal representative to the client explaining how the legal representative’s charges are to be calculated;

(j) a statement signed by the receiving party or the legal representative giving the name, address for service, reference and telephone number and fax number, if any, of—

(i) the receiving party;

(ii) the paying party;

(iii) any other person who has served points of dispute or who has given notice to the receiving party under PD 5.5(1)(b);

and giving an estimate of the length of time the detailed assessment hearing will take;

(k) where the application for a detailed assessment hearing is made by a party other than the receiving party, such of the documents set out in this paragraph as are in the possession of that party;

(l) where the court is to assess the costs of an assisted person or LSC funded client or person to whom civil legal services (within the meaning of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012) are provided under arrangement made for the purposes of that Part of that Act—

(i) the legal aid certificate, LSC certificate, the certificate recording the determination of the Director of Legal Aid Casework and relevant amendment certificates, any authorities and any certificates of discharge or revocation or withdrawal;

(ii) a certificate, in Precedent F(3) of the Schedule of Costs Precedents;

(iii) if that person has a financial interest in the detailed assessment hearing and wishes to attend, the postal address of that person to which the court will send notice of any hearing;

(iv) if the rates payable out of the LSC fund or by the Lord Chancellor under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 are prescribed rates, a schedule to the bill of costs setting out all the items in the bill which are claimed against other parties calculated at the legal aid prescribed rates with or without any claim for enhancement: (further information as to this
schedule is set out in paragraph 17 of this Practice Direction);

(v) a copy of any default costs certificate in respect of costs claimed in the bill of costs.

So, no mention of lodging correspondence files and attendance notes. PD 13.12 mentions such papers:

The papers to be filed in support of the bill and the order in which they are to be arranged are as follows—

(i) instructions and briefs to counsel arranged in chronological order together with all advices, opinions and drafts received and response to such instructions;

(ii) reports and opinions of medical and other experts;

(iii) any other relevant papers;

(iv) a full set of any relevant statements of case

(v) correspondence, file notes and attendance notes.

However, PD 13.12 does not impose an obligation, in my view, to lodge the papers detailed; it merely defines what the ‘papers in support’ are. It is PD 13.11 which creates the obligation:

Unless the court directs otherwise the receiving party must file with the court the papers in support of the bill not less than 7 days before the date for the detailed assessment hearing and not more than 14 days before that date.

However, PD 13.11 does not to apply to provisional assessments by reason of PD 14.2, which states:

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. (emphasis added)

Accordingly, it is seemingly the case that the rules and practice directions simply do not allow for correspondence files and attendance notes to be lodged at court for the purposes of provisional assessment (rightly or wrongly – that too is for another day). Indeed, at the recent conference of the Association of Costs Lawyers Senior Costs Judge Hurst acknowledged this curious position and advised delegates that the SCCO is working on a modified form for requesting a provisional assessment, which will afford receiving parties the option of lodging correspondence files etc. so as to assist the costs officer in assessing a bill of costs.

Finally, PD 13.13 is of worthy note (and which is not ‘excluded’ from provisional assessments by PD 14.2):

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.

Under this provision, it is seemingly open to a costs officer/judge to call for correspondence files, attendance notes and so on to assist him/her with the provisional assessment (yet another issue for yet another day: how that ‘Pamplin‘ election will be dealt with during a provisional assessment at which neither party is represented).

In summary, the current rules and practice directions do not provide for the lodging of correspondence files and attendance notes upon requesting a provisional assessment, no matter how fine an order they might be in, although the practice direction does provide that a court may call for the same (being short of a power to order that such papers in support be lodged – a point also acknowledged by SCJ Hurst). Accordingly, I disagree with the aforementioned press release/bulletin insofar as it asserts that that such papers must be lodged with Form N258.

Perhaps the rules and practice directions will be amended in future, if only to avoid costs officers/judges, possibly regularly, having to stop the assessment mid-stream to call for such papers. Perhaps provincial district/costs judges will adopt the SCCO’s modified Form N258. Time will tell.