Rule committee: Part 36 offers cannot be made on costs of detailed assessments

The Civil Procedure Rule Committee (CPRC) has decided against allowing part 36 offers to be made in relation to the costs of detailed assessment.

Last year, the CPRC’s lacuna sub-committee referred Master Leonard’s ruling in Best v Luton to the costs sub-committee for consideration after it was raised by the ACL.

While rule 47.20(4) permits part 36 offers in detailed assessments, Best v Luton held that it did not apply to subsequent assessments.

Master Leonard said that, if a part 36 offer could be made in these circumstances, it potentially opened the way to an indefinite cycle of part 36 offers and new detailed assessment proceedings.

The newly published minutes of the CPRC’s December meeting recorded that the costs sub-committee consulted with the Senior Costs Judge (SCJ), who said he and the other costs judges he consulted considered that the decision was “probably correct for the reasons given”.

The SCJ also argued that there was “no good reason” for CPR 47.20 to be amended. The minutes said: “It is not considered that there is a problem in practice and extending the part 36 regime to the costs of the detailed assessment process itself ‘would complicate matters hugely’.

“He also considers it would be a departure from the initially intended scope of the part 36 regime, which, he recalls, was not intended to address the costs of the detailed assessment process.”

The costs sub-committee concluded that the gap in the rules was “a deliberate one, not a lacuna”. It recommended no change, which the full CPRC agreed.

The CPRC also decided that the pilot of a new statement of costs for summary assessment will not be extended beyond 31 March 2022.

The costs sub-committee said the pilot has had very little take-up and there was “insufficient evidence to justify continuing the pilot”.

However, there was merit in considering some focused revision to form N260 to improve usability, a move which had the support of Master Cook, who chairs the forms sub-committee.

Finally, the minutes outlined the thinking behind the upcoming amendment to the rules on costs officers.

At the annual open meeting of the CPRC, there was a query which arose out of the ruling in PME v Scouts [2019] EWHC 3421 QB and [2019] EWHC B10 (Costs).

The receiving party was dissatisfied with elements of a provisional assessment carried out under CPR 47.15 by an authorised court officer (ACO) in the Senior Courts Costs Office (SCCO).

“Before Master Leonard, it was argued that the CPR did not give the power to ACOs to conduct provisional assessments at all. An appeal to Mr Justice Stewart followed.

“On appeal, the point was limited to an argument that an appeal from an ACO under CPR 47.21 was a rehearing of all the issues determined at the provisional assessment on the papers, rather than only the more limited points determined at the subsequent oral hearing held under CPR 47.15(7).

“Stewart J dismissed the appeal, holding that a party is entitled only to (a) an oral determination of those issues they have identified and (b) an appeal by way of re-hearing of the decision in relation only to those issues.”

The costs sub-committee, having consulted with the Senior Costs Judge, recommended as a result that “some clarificatory amendments be made to CPR 47.14(1) and PD47, so that they read more happily with the PME decision”.

The CPRC decided to amend CPR 47.3 by extending the prohibition on ACOs exercising sanctions to include a sanction under CPR 47.14 (1) and amend PD 47 so that it was “expressly consistent with the interpretation placed on it by Stewart J with regard to appeals from provisional assessments”.

Stewart J pointed out that the SCCO Guide (at paragraph 13.1) could be similarly amended, but this was outside the CPRC’s remit.

The CPRC said there was also no need to amend the definition of ‘Costs Officer’ in CPR 44.1, “notwithstanding the unfortunate potential confusion of the term with the usual shorthand for an ‘ACO’ in the SCCO. There is no obvious alternative synonym, the definition is clear and is now well-established.”

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Costs News
Published date
17 Feb 2022

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