High Court to consider scope of provisional assessment appeal

Hayman: Rules on jurisdiction of costs officers is confused

The High Court is set to rule on whether a party’s right to appeal from an oral hearing that follows a provisional assessment is limited to decisions made at the hearing.

Master Leonard in the Senior Courts Costs Office (SCCO) ruled that it was, saying that allowing a party to re-open on appeal provisional assessment decisions not made at the oral hearing was contrary to the overriding objective.

But he has granted permission to appeal the point in PME v The Scout Association [2019] EWHC B10 (Costs), acknowledging that “it cannot however be said that the claimant’s appeal has no real prospect of success”.

His ruling was on the claimant’s appeal from the assessment by Ms Kenny, the SCCO’s principal costs officer. After the provisional assessment, the claimant requested an oral hearing on two issues: hourly rates and document time.

At the start of the hearing, the claimant conceded Ms Kenny’s provisional finding on document time. Ms Kenny went on to make findings on hourly rates only.

Master Leonard pointed out that there was no right of appeal from a provisional assessment: “If a party wishes to challenge the provisional assessment, that party must request an oral hearing.

“To interpret the Civil Procedure Rules in any other way would be to allow a party to bypass the oral hearing procedure and go straight to appeal (presumably seeking any necessary permission from the appeal court). That would undermine the aim of the provisional assessment process.”

He found that the claimant could not raise on appeal issues he did not put to the authorised court officer, “because (a) by excluding those issues from his request for an oral hearing, he terminated his right to raise them and (b) insofar as he did not, he chose not to raise them”.

The claimant, the master said, had a choice at every step of what to contest and what not to contest. “The process of appeal should not represent an opportunity for a party to demand a rehearing of decisions which that party has previously accepted.”

The claimant also challenged Ms Kenny’s jurisdiction to conduct a provisional assessment at all.

Master Leonard observed that the term ‘costs officer’ could be misunderstood. “CPR 44.1 provides, for the purposes of interpreting CPR 44 to 47, that it means a costs judge, a district judge or an authorised court officer.

“In practice, at least in the SCCO, the term is most commonly used to describe authorised court officers like Ms Kenny: senior civil servants, authorised under statute to assess costs, from whose decisions appeal lies as of right to a costs judge.” He used the CPR term “authorised court officer”.

He said that, if a party objected to a particular assessment being heard by a court officer, they could apply for an order to that effect at the outset, without waiting for the case to be assigned.

“The suggestion that the undertaking of provisional assessments by authorised court officers in any way erodes the parties’ right to choose, seems to me to be fanciful.”

Master Leonard said it was “obvious” that the rule committee could not have intended that CPR 47 and the accompanying practice direction should both confer upon authorised court officers jurisdiction to assess bills of up to £35,000 (or, in certain cases, up to £110,000) and also exclude them from assessing the great majority of those bills by virtue of the fact that they would be provisionally assessed”.

The claimant was represented by Samuel Hayman, head of costs at Bolt Burden Kemp.

He said: “This case marks a clear acknowledgement that the rules pertaining to CPR 47 and more specifically the jurisdiction of costs officers is confused and ambiguous.

“In my view, this emanates from the fact that costs officers do not exist outside of the SCCO and are likely not within the mind of the rule committee and Lord Justice Jackson at the time the rules were visited.

“The claimant does not agree with the findings of Master Leonard and in any event I think it is accepted on all sides that the rules relating to this issue could do with a higher authority.”

Robin Dunne, instructed by BLM, represented the defendant.

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