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High Court limits scope of provisional assessment appeals

Stewart: SCCO guide may need revision

A party’s right to appeal from an oral hearing that follows a provisional assessment is limited to decisions made at the hearing, the High Court has ruled.

Mr Justice Stewart upheld the decision of Master Leonard in the Senior Courts Costs Office (SCCO) that allowing a party to re-open on appeal provisional assessment decisions not made at the oral hearing was contrary to the overriding objective.

In PME v The Scout Association [2019] EWHC 3421 (QB) [1], Master Leonard dealt with the claimant’s appeal from the assessment by Ms Kenny, the SCCO’s principal costs officer.

Following her decision on paper, the hearing before Ms Kenny dealt solely with the question of hourly rates and Master Leonard’s decision was limited to that too.

CPR 47.24 provides that, on appeal from decisions of authorised court officers (ACOs) like Ms Kenny, the court will re-hear “the proceedings which give rise to the decision appealed against”. The appellant, PME, argued that those proceedings were the detailed assessment as a whole.

But Stewart J said the provisional assessment was not a hearing. Though the SCCO guide refers to it as “a hearing on paper only”, Stewart J said it did not meet the CPR criteria to be a hearing, such as the need to be in public.

“I suspect that following this judgment the drafting in the SCCO guide may need some slight revision,” he observed.

The judge continued: “Therefore, the correct construction of the ‘decision’ of an ACO in the detailed assessment proceedings (CPR 47.21), read in conjunction with 47.24, which is that the court ‘re-hear the proceedings which gave rise to the decision appealed against’, provide that the only decision which can be appealed and re-heard is the oral decision by the ACO.

“This is notwithstanding the fact that PD47 paragraph 14.4(2) refers to the results of the paper provisional assessment as ‘decisions’ and that CPR 47.21 enables a party to appeal ‘against a decision’ in the detailed assessment proceedings.

“If the wording needs to be explained, I would suggest that the words in the practice direction are infelicitously chosen.

“The provisional assessment on paper does not give rise to a ‘decision’ which can be the subject of an appeal.

“It would perhaps be better described as provisional assessment of items on the bill which either become binding on the parties if no oral hearing is requested or which, if an oral hearing is requested, gives rise to decisions capable of being appealed.”

Sam Hayman, head of costs at London firm Bolt Burdon Kemp, who acts for PME, said: “This judgment adds some much-needed clarity to the confused rules surrounding the role of authorised costs officers especially within the context of provisional assessment.

“Despite this, the rules as presently drafted still remain unsatisfactory and I hope if nothing else this judgment starts a conversation as to the rules pertaining to costs officers.”