Find out how our experienced legal costs draftsmen can assist your law firm in negotiating you level of costs, applying for a default costs certificate and applying for a Detailed Assessment Hearing when costs cannot be agreed.
Detailed Assessment Hearings
Unfortunately, parties cannot always agree on the level of costs to be paid to the receiving party, and it is necessary to apply to the County Court to determine the same.
This culmination in the costs proceedings is the detailed assessment hearing, requested via the completion of an N258 form, which must be lodged within six months from the date of the document giving rise to costs
As can be seen, since 1 April 2013 the request for a hearing can be one of either a provisional assessment or detailed assessment, the key features being:
Provisional Assessment Hearing
- For all Bills valued at £75,000 or less
- Will be an assessment on the papers only
- No parties need to attend the assessment
- The outcome can be appealed via the requesting of an oral hearing
Detailed Assessment Hearing
- For all Bills valued in excess of £75,000, or for any matter on which the Court Orders
- Will be an oral assessment
- Both parties’ representatives to attend
- More detailed arguments exchanged/protracted process
How to Request a Hearing
The hearing request process itself is simple, but can be complicated by the level of documentation that must be filed with the Court. We have created a simple step-by-step guide below, outlining the essential steps to be completed:
1. Complete the N258 Form
i) Ascertain the value of the Bill and whether the provisional/detailed assessment process applies
ii) Complete the tickboxes outlining documentation attached
iii) Insert details of the Court at which the matter concluded
iv) Sign and date the document
v) If requesting a detailed assessment, provide a time estimate as to the length of hearing required
2. Prepare the accompanying documentation to be filed – CPR 47 PD 13.2 details at length items to include:
i) Copy Notice of Commencement
ii) Copy of document giving rise to entitlement to costs – Court Order or Part 36 Offer Acceptance
iii) Copy Bill of Costs (x2)
iv) The original Points of Dispute
v) Any Replies to Points of Dispute (in Precedent G format is preferable)
vi) Copies of all fee notes
vii) Details of any additional liabilities – CFA or ATE Insurance Policy
viii) Copy of document informing client of chargeable rates
ix) Statement of Address outlining all parties details and references
x) Sealed envelope, enclosing all offers made to date in respect of costs
3. Pay the correct Court fee – found in the EX50A
Procedure & Outcomes
Once your request for a hearing has been filed, the respective Court will make an Order listing the matter for a provisional/detailed assessment hearing within six weeks. Dependent upon the Court however, this timescales can vary immensely and thus you should always consider trying to progress your negotiations in the interim, as the paying party may seek instructions on making an increased offer when it is realised you are genuine about proceeding to assessment.
The outcome of your assessment will be dependent upon whether the matter is listed for provisional/detailed assessment:
Provisional Assessment Hearing
Utilising the parties’ Points of Dispute and Reply (usually consolidated in a Precedent G format), the Judge will go through the issues item by item, and address each of these in turn. A written ‘Cost Officer’s Decision’ will be provided for each point on the Precedent G confirming the decision made.
Whilst some cost officer’s take the time to calculate the outcome of their decisions, it is more common (given the restricted timeframes to complete a provisional assessment) that the Court will return the Bill of Costs to the parties with a copy of the annotated Precedent G, for the parties to calculate the outcome.
This can cause problems in itself, as the parties may ultimately disagree on the figures of the amended Bill of Costs. As such, the process to conclude matters is as follows, as per CPR 47.15:
- CPR 47 PD 14.4 stipulates that the parties have 14 days to agree the arithmetic of the assessed Bill of Costs, failing which the same should be filed at Court outlining any clarification required
- If agreement has been reached, the assessed Bill (amended to reflect the Court’s decisions) should be filed within 14 days alongside any details of interest and detailed assessment costs due, for the purposes of obtaining a final Order
- The general rule is that if the receiving party has achieved a result from the Court that is better than any offer made by the paying party, they are entitled to their detailed assessment costs (capped at £1,500 + VAT + Court fee for provisional assessment). This can be contested by the paying party however, if they consider there is good reason to disallow detailed assessment costs e.g. the Bill has been reduced by such a significant margin
- A party may contest the provisional assessment, or specific decisions made, by filing a written request to the Court within 21 days of receipt of the assessed Bill of Costs outlining the issues to be contested via an oral hearing.
- The oral hearing remains part of the provisional assessment process and thus, is confined to the same limit for detailed assessment costs of £1,500. The requesting party will be liable for the costs of the hearing unless they achieve a difference of 20% or more on the items challenged, or the Court orders otherwise.
As you can see, the assessment process can become very complex and if you require any assistance with regards to the same, please do not hesitate to contact our LPS Costs Specialists, Robert Collington and Anna Cragg.
Detailed Assessment Hearing
As mentioned previously, the Court will give directions for the matter to proceed to an oral detailed assessment hearing in line with the time estimate provided by the requesting party. You should ensure that you allow sufficient time for all the issues to be resolved. We would recommend as a guide, 30 minutes be allowed per Point of Dispute.
Upon receipt of the request, the Court may provide directions up to the hearing for the parties to try and confine the issues in dispute. This commonly involves directions for the filing of an agenda of agreed and contested issues, which may require a telephone conference between the parties to prepare. Skeleton arguments are also frequently requested to be filed in preparation for the hearing.
For attendance upon the detailed assessment hearing, it is recommended that a costs specialist is instructed to attend so that you achieve the best result possible. In the event that you choose to attend, the order of events will proceed as follows:
- The parties will introduce themselves before the Judge and summarise the circumstances of the case
- The Judge will proceed through the Points of Dispute, item by item, with the paying party generally making the initial submissions and the receiving party responding to the same. The representative should not simply reiterate the argument outlined in the Precedent G, but expand upon the same and in line with any skeleton argument filed.
- Upon submissions from both parties, the Judge will record their decision
- Once all points have been resolved, the hearing is briefly adjourned so that the parties can calculate the outcome of the assessment
- The ‘winning party’ is entitled to their interest and detailed assessment costs, and these should be decided during the course of the adjournment if possible
- The parties will then return before the Judge to confirm the outcome of assessment. If the parties are unable to come to an agreement on interest and detailed assessment costs, the Judge will make a decision upon the same.
- An Order will then be drawn up in the presence of both parties, confirming the outcome of the hearing
The detailed assessment hearing is a means of obtaining a conclusive and instant result to the detailed assessment proceedings however, it is a protracted and expensive process.
It is possible to appeal any decision made during the course of a detailed assessment hearing in accordance with CPR 47.22.
Any appeal notice (N161) must be lodged with a costs judge or a district judge of the High Court, within 21 days of the date of the detailed assessment hearing/decision. Directions will be given thereafter, and a copy of the Appeal notice served upon any other parties to proceedings.
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