The Civil Procedure Rule Committee should this week sign off an unexpected tripling of the limit for provisional assessment to £75,000, it has emerged.
The change has been approved by the government, 9L0-006 a Ministry of Justice spokesman told Litigation Futures yesterday, although it is not yet clear why the increase in the pilot level of £25,000 – at which the national roll-out was also expected – has been made.
The rule committee meets this Friday, when it is also expected to approve a raft of other changes to the CPR.
The news has leaked out after a copy of a resource pack for a judicial training session shortly before Christmas entered into circulation.
Provisional assessment, a recommendation of Lord Justice Jackson’s, will allow for a district judge to carry out an assessment on the papers in respect of bills where the costs claimed do not exceed £75,000. Either party can then seek an oral hearing before the same judge if they are unhappy but will face costs consequences if a 20% adjustment in their favour is not made a result.
The draft rules in the resource pack say the court will not award more than £1,500 to any party “in respect of the costs of the provisional assessment”. Simon Gibbs, a partner at costs practice Gibbs Wyatt Stone, has expressed concern about the failure to separate out the court fee from this, saying it is “clearly a drafting oversight”.
Writing on his well-known blog, he pointed out that the current fee payable for requesting a detailed assessment for a bill where the costs claimed are between £50,000 to £100,000 is £980.
Mr Gibbs said: “Hearings for bills of that size can easily last a full day or more. Given provisional assessments take place on paper and with very limited (at least under the provisional assessment pilot) documentation before the court, the judicial time required to undertake a provisional assessment is a fraction of that for a full detailed assessment. Presumably the new fees will be set at an appropriately modest level…
“If the court fee is not reduced in time for April 2013, and VAT is included in the figure, that leaves £433.33 profit costs for dealing with bill of costs up to £75,000.”
The pilot began in October 2010 in Leeds, Scarborough and York. In the first year 100 cases proceeded to assessment, following which there were 17 requests for an oral hearing, but only two actually made it that far. In neither did the requesting party reach the 20% threshold, although one was successfully appealed.
Speaking last year, Lord Justice Jackson said the pilot had shown the process to be quick and simple – the two district judges (also regional costs judges) involved spent an average of 37 minutes per case, and estimated that the parties saved at least £4,000 per case by avoiding a half or full-day hearing.
However, he highlighted the importance of judicial training, given that more recent experience in the pilot showed that assessments carried out by district judges who are not regional costs judges took markedly longer.