Applications for adjournments of costs assessment until the Supreme Court’s decision in Coventry v Lawrence are rightly being given “short shrift”, the Senior Costs Judge has said.
Andrew Gordon-Saker also suggested that the future of guideline hourly rates could be in doubt if there is insufficient enthusiasm for a second ‘expense of time’ survey.
In February the Supreme Court in Coventry will consider whether the pre-Jackson regime of recoverable additional liabilities was incompatible with the Human Rights Act.
Speaking at the Association of Costs Lawyers’ conference in Manchester last week, Master Gordon-Saker said: “Inevitably in a considerable number of the detailed assessments that have taken place since the end of July [when the Supreme Court flagged up the issue], paying parties have been asking for an adjournment of the assessment of any additional liabilities claim until the Supreme Court’s decision is made. Similarly parties ordered to pay costs at the end of a hearing have been asking for the question of their liability to pay additional liabilities to be adjourned.
“These applications, I understand, have been given short shrift. Additional liabilities are recoverable under primary legislation. If that primary legislation is incompatible with the Human Rights Act, that should not affect recoverability as between the parties, although I know that there are arguments to the contrary.”
The judge said he suspected there would only be another survey of solicitors – to inform new guideline hourly rates – if a better response rate could be guaranteed this time around; it was the failure to gather sufficient evidence that meant the Master of the Rolls decided not to accept the Civil Justice Council’s costs committee’s recommendations to increase the rates.
Supporting the existence of the rates, Master Gordon-Saker said: “In the meantime, we carry on with the 2010 rates, with the important but limited changes approved by the MR. If we do not have another survey, then the future of guideline rates is questionable.”
In a wide-ranging speech, the Senior Costs Judge said fixed costs for all fast-track cases were “inevitable” but he felt it would be too hard to set fixed costs for the wide range of cases at the lower end of the multi-track.
He also revealed that the Senior Courts Costs Office is turning around provisional assessments in around 18 weeks, with little prospect of it being able to hit the six-week target because of court resources.
He said: “You will still get a bill provisionally assessed before you would get a detailed assessment, so you may think that’s something of an advance. Our experience is that there are few requests for an oral hearing, so generally provisional assessment is it.
“The vast majority of cases the parties are accepting the figure allowed on provisional assessment. So to that extent, despite the delays, it could be said that the system is working.”