Rule committee to consider part 36 offers on costs of detailed assessment

The costs subcommittee of the Civil Procedure Rule Committee (CPRC) is to consider whether part 36 offers can be made in relation to the costs of detailed assessment, following prompting by the Association of Costs Lawyers.

The newly published minutes of the CPRC’s April meeting showed that the CPRC’s lacuna subcommittee has referred Master Leonard’s ruling earlier this year in Best v Luton to the costs subcommittee for consideration.

“The matter was raised by the Association of Costs Lawyers,” the minutes noted.

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.

Meanwhile, the CPRC has decided that the rule on recoverable disbursements in matters which no longer continue under the specified pre-action protocols is to be expanded in the wake of the Court of Appeal’s 2019 ruling in Aldred v Cham.

CPR 45.29I(2)(h) allows additional claims for disbursements beyond the fixed fee to be claimed in cases where they are “reasonably incurred due to a particular feature of the dispute”.

In Aldred, the Court of Appeal decided that counsel’s fees for an opinion on quantum in a road traffic accident claim involving a child that fell out of the portal were included in the fixed costs and could not be recovered as a disbursement.

Lord Justice Coulson said the fact the claimant was a child was not “a particular feature of the dispute” because it was a personal characteristic which had “nothing whatever to do with the dispute itself”.

Although the Supreme Court refused permission to appeal last year, saying the case did not raise a point of law of general public importance, it said the CPRC should review whether disbursements in fixed-costs cases should be recoverable separately.

According to a report by Leeds firm Clarion of last week’s CPRC open meeting, where it was discussed, key areas of concern were the fee for counsel’s opinion where the claimant was a minor and interpreter costs.

The costs subcommittee proposed adding these two specific instances to the list and expanding the wrap-up provision to include any other disbursement required by the rules to be incurred. The full committee agreed this, while further discussion will take place regarding other issues raised, such as the costs of telephone conference fees.

The committee decided as well that the summary assessment of costs pilot (PD51X) will be extended for a further year to April 2022 following limited uptake to date.

Clarion reported: “It was generally agreed that whether parties are to file the old or new forms, they should be self-calculating so that the judge can make changes. In respect of the N260A interim application pilot form, a concern is that a large amount of detail is required for simple hearings lasting maybe half an hour.

“In respect of the N260B for trial, it was noted that these may be fast-track cases which are not budgeted and therefore practitioners are possibly not recording time in a compatible way. Possible fixed costs changes would also have an impact. There will be further informal consultation and a smart survey via the website is being considered to give feedback.”

The CPRC also referred to the costs subcommittee for consideration Mr Justice Mann’s recent decision in Pallett v MGN Ltd and the tactical late acceptance of part 36 offers by defendants in order to avoid the automatic costs entitlement and instead put costs at large.

Further, the forms subcommittee is to amend form N170 (Listing questionnaire (Pre-trial checklist)) over the requirement in section F that the parties must attach “an estimate of costs”, a pre-April 2013 CPR reference.

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Costs News
Published date
19 May 2021

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