Provisional assessment: court fees

The current fees payable upon requesting a detailed assessment hearing between the parties and in respect of bills of costs totalling up to and including £75,000 are:

(a) does not exceed £15,000; £325
(b) exceeds £15,000 but does not exceed £50,000; £655
(c) exceeds £50,000 but does not exceed £75,000
(capped); £980.

The same fees are payable in respect of cases subject to CPR 47.15 / provisional assessment. The current fee for a Legal Aid provisional assessment however is just £145 and irrespective of the size of the bill of costs. Is that fair and reasonable? No, in my view.

I presume that the reduced or discounted/subsidised fee in Legal Aid cases was originally, and reasonably, set with one eye on minimising expenditure of public funds. But surely the fee was also set, if only following subsequent review(s) of court fees generally, having regard to the fact that provisional assessments take up less of the precious time and resources at HMCTS.

While, for example, a District Judge might spend, say, 2-3 hours (probably less) provisionally assessing a £75,000 Legal Aid bill, a similar bill in a between the parties assessment not subject to the new provisional assessment regime may well involve the same District Judge spending 3-4 hours (okay – probably much less) reading the bill, points of dispute, replies etc. in advance but then a further 5 hours (a court day), maybe even as many as 10 hours in some cases, hearing submissions and carrying out the assessment (and assuming that judgment is delivered ex tempore).

Very crudely and using the same parameters as for court fees above, though I am quite sure that the Ministry of Justice will have more accurate data at its disposal, perhaps a District Judge might spend time on between the parties detailed assessments as follows:

(a) bill does not exceed £15,000; 3 hours (1 hour reading / 2 hours hearing)
(b) bill exceeds £15,000 but does not exceed £50,000; 6 hours (2 hours reading / 4 hours hearing)
(c) bill exceeds £50,000 but does not exceed £75,000 (capped); 10.5 hours (3 hours reading / 7.5 hours hearing)

Under the new provisional assessment regime however, a District Judge might spend 1 hour and 51 minutes assessing a bill of costs totalling £75,000: that’s the pilot’s purported average of 37 minutes for bills totalling up to £25,000 trebled, as was the maximum bill size subject to the provisional assessment regime sprung upon the profession in the 60th amendment to the Civil Procedure Rules 1998. Taking then, for present purposes, an average spend of 2 hours on provisional assessments it is clear that a fraction of judicial time, even on bills not exceeding £15,000, will be spent as compared to what was (and still is/will be, for the remaining cases where notices of commencement of detailed assessment proceedings were served before ‘J-Day’) likely spent on ‘full’ detailed assessments.

For that reason, the fees for provisional assessment are unreasonable (now there’s an obtuse argument for a standard basis summary assessment of the ‘costs of the costs’!). One might argue that the existing fees are too low for ‘full’ detailed assessments, such that they may by default be reasonable for provisional assessments, but if that were really the case I am sure that the fees would have been increased before the advent of provisional assessment.

It is to be noted that there is no separate or additional fee payable upon making a request for an oral hearing in the event of dissatisfaction with the provisional assessment and that must be factored in. But in my view there should be an additional fee, or rather, that the fees should be staged in a similar way to listing and hearing fees are upon the filing of listing questionnaires. The current fees were no doubt set in anticipation of a detailed assessment hearing being held (even if many cases settle(d) before a hearing) whereas the judiciary are currently, it seems, rather keen to emphasise the ‘uphill struggle’, ‘onerous burden’ etc. of the ‘20% rule’ governing the costs of an oral hearing (see CPR 47.15(10)) and I should think are generally expecting relatively few oral hearings being requested – as was the experience during the pilot, of just over 14% i.e. 17 requests out of 119 cases and only in 2 of those cases did oral hearings actually take place.

Staging such fees based on the listing and hearing fees ‘model’ might also address another common complaint in respect of detailed assessment proceedings being settled at the eleventh hour and court time being wasted as a result. If a second fee is payable in respect of an oral hearing and if that fee is subject to a similar sliding-scale of rebates as the hearing fee is, it might just give litigants the incentive to settle sooner if they are going to settle at all.

Reducing the court fees could also soften any blow to receiving parties subject to the cap on costs of provisional assessment, assuming, contrary to many views, that the cap is inclusive of court fees. If the court fees are reduced and staged as I suggest, the cap could (and should) be left as it is and, on a simple interpretation constructed by reference to CPR 44.1(1) and the definition of ‘costs’, be accepted as being inclusive of court fees (which would be the first part of the staged assessment fee and any issue fee for costs-only proceedings only, as the cap doesnt extend to the oral hearing stage) for the sake of simplicity and certainty.

All that said, in these times of swingeing cuts by the Ministry of Justice it is perhaps most unlikely that such a reduction of court fees to fairly reflect the rule changes will happen. Shame.