Change will give greater flexibility but there will need to be ‘good reason’
The Civil Procedure Rules are to be amended so that a judge, other than the judge who made the order, can summarily assess costs where there is ‘good reason’ to do so.
It is the culmination of work begun in 2023 after the Court of Appeal invited the rule committee to look at whether the rule that summary assessments could only be undertaken by the judge who ordered it should be relaxed.
The recently published minutes of the Civil Procedure Rule Committee’s (CPRC) June meeting recorded that paragraph 9.7 of practice direction 44 contemplated that summary assessment may be undertaken at a later date, rather than at the conclusion of the hearing, albeit at a further hearing before the same judge.
When the CPRC’s lacuna sub-committee considered this issue in the wake of the Court of Appeal decision, it highlighted circumstances that may arise where directing a summary assessment by another judge was appropriate, such as where similar issues may arise in relation to the costs of other hearings as on the summary assessment, or the summary assessment has been adjourned and there would be practical difficulties of listing it before the hearing judge.
Costs Lawyer Ian Curtis-Nye, who stepped down from the ACL Council in 2022 to join the CPRC, was tasked with considering the issue and with Mr Justice Trower looked at whether to be more prescriptive of the circumstances which might amount to ‘good reason’ for another judge to conduct the assessment.
They decided, however, that this risked “a different form of inflexibility”.
They also considered whether the test should be ‘exceptional circumstances’, but concluded this was too high a hurdle and that ‘good reason’ provided “the right balance between sufficient flexibility and it not becoming the norm”.
It was not thought appropriate for this proposed jurisdiction to be extended to enable summary assessments to be carried out at a later date by costs officers.
The minutes said: “Such an extension is opposed by the costs judges, because of the danger that it would become a form of detailed assessment by another name, thereby blurring the important distinction between the two different forms of assessment. It should, therefore, be limited to another judge of ‘coordinate jurisdiction’.”
CPRC chair Lord Justice Birss agreed that it was not “desirable” for these assessments to be delegated to costs officers – they should be carried out by another judge who would have had jurisdiction to make the decision which gave rise to the costs order.
He also stressed that the amendments were “not intended to introduce a new process for delegating summary assessment, it is addressing an issue in the judgment to improve the process”.
The direction to deal with the summary assessment at a later date will be given at the time the substantive decision is made, although the decision as to whether the same judge should deal with it does not need to be made at the same time.
The minutes went on: “The amendments should also make clear that the summary assessment made at the time of the substantive decision and any summary assessment made at a later date can be carried out after any decision at which a costs order is made; it does not need to be limited to occasions on which a decision has been made only after a hearing.” This will be another change from the existing drafting.
The CPRC approved the changes in principle, subject to the final drafting of an amendment to the definition of summary assessment in rule 44.1 and amendments in rule 44.6 and paragraph 9.7 of PD 44. There will not be a consultation given the limited nature of the changes and previous conversations with the SCCO.
Subject to their final approval by Birss LJ, the changes will be included in the next CPR updates in October.
In separate news, with Birss LJ taking over as Chancellor of the High Court on 1 November from the retiring Flaux LJ, Mrs Justice Cockerill, who joins the Court of Appeal in October, will become deputy head of civil justice.