It has been a number of years since, in an attempt to clear the significant backlog of bills awaiting assessment, that CPR 47.15 was introduced to allow for a provisional assessment of costs up to £75,000.00 (CPD 14.1).
Effectively assessments took place on paper with no attendance required unless a party or the parties filed a challenge to the provisional assessment within 21 days of receipt of the court’s provisional assessment of costs.
A recent case provides a timely reminder of the requirements of any challenge to the provisional assessment.
MS N CHRISTODOULIDES and MR C HOLBECH – Neutral Citation Number: [2024] EWHC 2172 (SCCO)
Deputy Costs Judge Roy KC at the SCCO 3 July 2024 heard claimant’s application 16 May 2024 which sought an oral hearing to revisit the provisional assessment of the second defendant’s bill of costs.
As the court stated it was in effect an application for the court to revisit the order of 7 May 2024 made without a hearing; that said that upon the court having considered letters from the claimant dated 12 April 2024 and from the defendant dated 15 April 2024 and determining that the claimant had failed to produce a properly formulated request for an oral hearing, that the provisional assessment do stand as the final assessment.
The court referred to:
- Rule 47.15(7) provides (emphasis added):
When a provisional assessment has been carried out the court must send a copy of the bill as previously assessed to each party with a notice stating that any party who wishes to challenge any aspect of the provisional assessment must within 21 days of receipt of the notice file and serve on all of the parties a written request for an oral hearing. If no such request is filed and served within that period the provisional assessment shall be binding upon the parties save in exceptional circumstances.
- Rule 47.15(8) provides (emphasis added):
The written request referred to in paragraph seven must –
(a) identify the item or items in the court’s provisional assessment which are sought to be reviewed at the hearing; and
(b) provide a time estimate for the hearing.
The claimant’s letter 12 April 2024 was, it appeared, intended to seek the re-opening of the provisional assessment however, notwithstanding careful review on a number of occasions, the court could not accept the same as being CPR 47.15(8) compliant as it failed to identify, as required, the item or items in the provisional assessment that were to be reviewed. There had been some 40 plus items provisionally assessed and what was required was for them to be identified by number, or at the very least one way or another whereas the letter failed tom do this. The court identified the failure to provide a time estimate but considered the same to be “less problematic”.
Thus, applying rule 47.15(7) the provisional assessment was binding save in exceptional circumstances.
The court added:
that non-compliance of the 12 April letter was in no way cured by the subsequent application. It likewise did not identify the items in the provisional assessment to be challenged.
Instead, very much like the letter of 12 April, it contained wide-ranging complaints of unfairness, lack of transparency, improper conduct of various practices and so forth on behalf of the second defendant and/or his lawyers. It still did not, “identify the item or items in the court’s provisional assessment which are sought to be reviewed”.
The application also contained a request that the assessment of the second defendant’s costs be conducted alongside an assessment of the first defendant’s costs. However, this formed no part of the provisional assessment. It therefore did not come within the scope of what was open for the court to consider following a provisional assessment.
The court listened to the claimant’s submissions at the hearing of the application the claimant being a litigant in person (LIP) and whilst appreciative of the difficulties for a LIP to direct their arguments to the rules, the court considered that the claimant’s submissions had really been directed at the allegations of misconduct and fabrication which went to the substance of the case rather than why the provisional assessment should be re-opened despite non-compliance with the rules. The LIP was asked why the rules could not have been complied with and she was not able to identify any real answer to that.
In the court’s judgment the rules applicable to a request for an oral hearing were neither particularly inaccessible nor particularly obscure.
Unable to find any exemptional circumstances or merit in regard to the serious allegation raised by the claimant, the application was dismissed and the provisional assessment remained as final.
Transcript – Christodoulides v Holbech [2024] EWHC 2172 (SCCO) (03 July 2024) (bailii.org)