Guidance
Appendix 1 | Appendix 2 | Appendix 3 (PDF 134kb)
Appendix 1 - Meaning of summary assessment
43.3 ‘Summary assessment’ means the procedure by which the court, when making an order about costs, orders payment of a sum of money instead of fixed costs or ‘detailed assessment’.
Court’s discretion and circumstances to be taken into account when exercising its discretion as to costs
44.3(1)The court has discretion as to –
(a) whether costs are payable by one party to another;
(b) the amount of those costs; and
(c) when they are to be paid.
(2) If the court decides to make an order about costs –
(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but
(b) the court may make a different order.
(3) The general rule does not apply to the following proceedings –
(a) proceedings in the Court of Appeal on an application or appeal made in connection with proceedings in the Family Division; or
(b) proceedings in the Court of Appeal from a judgment, direction, decision or order given or made in probate proceedings or family proceedings.
(4) In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including –
(a) the conduct of all the parties;
(b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and
c) any payment into court or admissible offer to settle made by a party which is drawn to the court’s attention (whether or not made in accordance with Part 36).
(Part 36 contains further provisions about how the court’s discretion is to be exercised where a payment into court or an offer to settle is made under that Part)
(5)The conduct of the parties includes –
(a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed any relevant pre-action protocol;
(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
(c) the manner in which a party has pursued or defended his case or a particular allegation or issue; and
(d) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim.
(6)The orders which the court may make under this rule include an order that a party must pay –
(a) a proportion of another party’s costs;
(b) a stated amount in respect of another party’s costs;
(c) costs from or until a certain date only;
(d) costs incurred before proceedings have begun;
(e) costs relating to particular steps taken in the proceedings;
(f) costs relating only to a distinct part of the proceedings; and
(g) interest on costs from or until a certain date, including a date before judgment.
(7) Where the court would otherwise consider making an order under paragraph (6)(f), it must instead, if practicable, make an order under paragraph (6)(a) or (c).
(8) Where the court has ordered a party to pay costs, it may order an amount to be paid on account before the costs are assessed.
(9) Where a party entitled to costs is also liable to pay costs the court may assess the costs which that party is liable to pay and either –
(a) set off the amount assessed against the amount the party is entitled to be paid and direct him to pay any balance; or
(b) delay the issue of a certificate for the costs to which the party is entitled until he has paid the amount which he is liable to pay.
Costs orders relating to funding arrangements
44.3A
(1) The court will not assess any additional liability until the conclusion of the proceedings, or the part of the proceedings, to which the funding arrangement relates.
(‘Funding arrangement’ and ‘additional liability’ are defined in rule 43.2)
(2) At the conclusion of the proceedings, or the part of the proceedings, to which the funding arrangement relates the court may –
(a) make a summary assessment of all the costs, including any additional liability;
(b) make an order for detailed assessment of the additional liability but make a summary assessment of the other costs; or
(c) make an order for detailed assessment of all the costs.
(Part 47 sets out the procedure for the detailed assessment of costs)
Limits on recovery under funding arrangements
44.3B
(1)A party may not recover as an additional liability –
(a) any proportion of the percentage increase relating to the cost to the legal representative of the postponement of the payment of his fees and expenses;
(b) any provision made by a membership organisation which exceeds the likely cost to that party of the premium of an insurance policy against the risk of incurring a liability to pay the costs of other parties to the proceedings;
(c) any additional liability for any period in the proceedings during which he failed to provide information about a funding arrangement in accordance with a rule, practice direction or court order;
(d) any percentage increase where a party has failed to comply with –(i) a requirement in the costs practice direction; or
(ii) a court order,
to disclose in any assessment proceedings the reasons for setting the percentage increase at the level stated in the conditional fee agreement.
(2) This rule does not apply in an assessment under rule 48.9 (assessment of a solicitor’s bill to his client).
(Rule 3.9 sets out the circumstances the court will consider on an application for relief from a sanction for failure to comply with any rule, practice direction or court order)
Basis of assessment
44.4
(1)Where the court is to assess the amount of costs (whether by summary or detailed assessment) it will assess those costs –
(a) on the standard basis; or
(b) on the indemnity basis,
but the court will not in either case allow costs which have been unreasonably incurred or are unreasonable in amount.
(Rule 48.3 sets out how the court decides the amount of costs payable under a contract)
(2) Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue; and
(b) resolve any doubt which it may have as to whether costs were reasonably incurred or reasonable and proportionate in amount in favour of the paying party.
(Factors which the court may take into account are set out in rule 44.5)
(3) Where the amount of costs is to be assessed on the indemnity basis, the court will resolve any doubt which it may have as to whether costs were reasonably incurred or were reasonable in amount in favour of the receiving party.
(4) Where –
(a) the court makes an order about costs without indicating the basis on which the costs are to be assessed; or
(b) the court makes an order for costs to be assessed on a basis other than the standard basis or the indemnity basis, the costs will be assessed on the standard basis.
(5) Where the amount of a solicitor’s remuneration in respect of non-contentious business is regulated by any general orders made under the Solicitors Act 1974, the amount of the costs to be allowed in respect of any such business which falls to be assessed by the court will be decided in accordance with those general orders rather than this rule and rule 44.5.
Factors to be taken into account in deciding the amount of costs
44.5
(1) The court is to have regard to all the circumstances in deciding whether costs were –
(a) if it is assessing costs on the standard basis –
(i) proportionately and reasonably incurred; or
(ii) were proportionate and reasonable in amount, or(b) if it is assessing costs on the indemnity basis –
(i) unreasonably incurred; or
(ii) unreasonable in amount.
(2) In particular the court must give effect to any orders which have already been made.
(3) The court must also have regard to –
(a) the conduct of all the parties, including in particular –
(i) conduct before, as well as during, the proceedings; and
(ii)the efforts made, if any, before and during the proceedings in order to try to resolve the dispute;(b) the amount or value of any money or property involved;
(c) the importance of the matter to all the parties;
(d) the particular complexity of the matter or the difficulty or novelty of the questions raised;
(e) the skill, effort, specialised knowledge and responsibility involved;
(f) the time spent on the case; and(g) the place where and the circumstances in which work or any part of it was done.
(Rule 35.4(4) gives the court power to limit the amount that a party may recover with regard to the fees and expenses of an expert)
Part 46 Fast Track Trial Costs
Scope of this Part
46.1
(1) This Part deals with the amount of costs which the court may award as the costs of an advocate for preparing for and appearing at the trial of a claim in the fast track (referred to in this rule as ‘fast track trial costs’).
(2) For the purposes of this Part –
(a)‘advocate’ means a person exercising a right of audience as a representative of, or on behalf of, a party;
(b)‘fast track trial costs’ means the costs of a party’s advocate for preparing for and appearing at the trial, but does not include –(i) any other disbursements; or
(ii) any value added tax payable on the fees of a party’s advocate; and(c)‘trial’ includes a hearing where the court decides an amount of money or the value of goods following a judgment under Part 12 (default judgment) or Part 14 (admissions) but does not include –
(i) the hearing of an application for summary judgment under Part 24; or
(ii) the court’s approval of a settlement or other compromise under rule 21.10.
(Part 21 deals with claims made by or on behalf of, or against, children and patients)
46.2
(1)The following table shows the amount of fast track trial costs which the court may award (whether by summary or detailed assessment).
| Value of the claim | Amount of fast track trial costs which the court may award |
|---|---|
| Up to £3,000 | £350 |
| More than £3,000 but not more than £10,000 |
£500 |
| More than £10,000 | £750 |
(2)The court may not award more or less than the amount shown in the table except where –
(a)it decides not to award any fast track trial costs; or
(b) rule 46.3 applies,
but the court may apportion the amount awarded between the parties to reflect their respective degrees of success on the issues at trial.
(3) Where the only claim is for the payment of money –
(a) for the purpose of quantifying fast track trial costs awarded to a claimant, the value of the claim is the total amount of the judgment excluding –
(i) interest and costs; and
(ii) any reduction made for contributory negligence.
(b) for the purpose of the quantifying fast track trial costs awarded to a defendant, the value of the claim is –
(i) the amount specified in the claim form (excluding interest and costs);
(ii) if no amount is specified, the maximum amount which the claimant reasonably expected to recover according to the statement of value included in the claim form under rule 16.3; or
(iii) more than £10,000, if the claim form states that the claimant cannot reasonably say how much he expects to recover.
(4)Where the claim is only for a remedy other than the payment of money the value of the claim is deemed to be more than £3,000 but not more than £10,000, unless the court orders otherwise.
(5) Where the claim includes both a claim for the payment of money and for a remedy other than the payment of money, the value of the claim is deemed to be the higher of –
(a) the value of the money claim decided in accordance with paragraph (3); or
(b) the deemed value of the other remedy decided in accordance with paragraph (4),
unless the court orders otherwise.
(6)Where –
(a) a defendant has made a counterclaim against the claimant;
(b) the counterclaim has a higher value than the claim; and
(c) the claimant succeeds at trial both on his claim and the counterclaim,
for the purpose of quantifying fast track trial costs awarded to the claimant, the value of the claim is the value of the defendant’s counterclaim calculated in accordance with this rule.
(Rule 20.4 sets out how a defendant may make a counterclaim)
Power to award more or less than the amount of fast track trial costs
46.3(1)This rule sets out when a court may award –
(a) an additional amount to the amount of fast track trial costs shown in the table in rule 46.2(1); and
(b) less than those amounts.
(2) If –
(a) in addition to the advocate, a party’s legal representative attends the trial;
(b) the court considers that it was necessary for a legal representative to attend to assist the advocate; and
(c) the court awards fast track trial costs to that party,
the court may award an additional £250 in respect of the legal representative’s attendance at the trial.
(Legal representative is defined in rule 2.3)
(2A) The court may in addition award a sum representing an additional liability.
(The requirements to provide information about a funding arrangement where a party wishes to recover any additional liability under a funding arrangement are set out in the costs practice direction)
(‘Additional liability’ is defined in rule 43.2)
(3)If the court considers that it is necessary to direct a separate trial of an issue then the court may award an additional amount in respect of the separate trial but that amount is limited in accordance with paragraph (4) of this rule.
(4) The additional amount the court may award under paragraph 3 must not exceed two-thirds of the amount payable for that claim, subject to a minimum award of £350.
(5) Where the party to whom fast track trial costs are to be awarded is a litigant in person, the court will award –
(a) if the litigant in person can prove financial loss, two-thirds of the amount that would otherwise be awarded; or
(b) if the litigant in person fails to prove financial loss, an amount in respect of the time spent reasonably doing the work at the rate specified in the costs practice direction.
(6) Where a defendant has made a counterclaim against the claimant, and –
(a) the claimant has succeeded on his claim; and
(b) the defendant has succeeded on his counterclaim,
the court will quantify the amount of the award of fast track trial costs to which –
(i) but for the counterclaim, the claimant would be entitled for succeeding on his claim; and
(ii) but for the claim, the defendant would be entitled for succeeding on his counterclaim,
and make one award of the difference, if any, to the party entitled to the higher award of costs.
(7)Where the court considers that the party to whom fast track trial costs are to be awarded has behaved unreasonably or improperly during the trial, it may award that party an amount less than would otherwise be payable for that claim, as it considers appropriate.
(8) Where the court considers that the party who is to pay the fast track trial costs has behaved improperly during the trial the court may award such additional amount to the other party as it considers appropriate.
Fast track trial costs where there is more than one claimant or defendant
46.4(1)Where the same advocate is acting for more than one party –
(a) the court may make only one award in respect of fast track trial costs payable to that advocate; and
(b) The parties for whom the advocate is acting are jointly entitled to any fast track trial costs awarded by the court.
(2) Where –
(a) The same advocate is acting for more than one claimant; and
(b) each claimant has a separate claim against the defendant,
the value of the claim, for the purpose of quantifying the award in respect of fast track trial costs is to be ascertained in accordance with paragraph (3).
(3)The value of the claim in the circumstances mentioned in paragraph (2) is –
(a) where the only claim of each claimant is for the payment of money –
(i) if the award of fast track trial costs is in favour of the claimants, the total amount of the judgment made in favour of all the claimants jointly represented; or
(ii)if the award is in favour of the defendant, the total amount claimed by the claimants,
and in either case, quantified in accordance with rule 46.2(3);
(b) where the only claim of each claimant is for a remedy other than the payment of money, deemed to be more than £3,000 but not more than £10,000; and
(c) where claims of the claimants include both a claim for the payment of money and for a remedy other than the payment of money, deemed to be –
(i) more than £3,000 but not more than £10,000; or
(ii) if greater, the value of the money claims calculated in accordance with sub paragraph (a) above.
(4)Where –
(a) there is more than one defendant; and
(b) any or all of the defendants are separately represented,
the court may award fast track trial costs to each party who is separately represented.
(5) Where –
(a) there is more than one claimant; and
(b) single defendant,
the court may make only one award to the defendant of fast track trial costs, for which the claimants are jointly and severally liable.
(6) For the purpose of quantifying the fast track trial costs awarded to the single defendant under paragraph (5), the value of the claim is to be calculated in accordance with paragraph (3) of this rule.
Costs where money is payable by or to a child or patient
48.5(1)This rule applies to any proceedings where a party is a child or patient and –
(a) money is ordered or agreed to be paid to, or for the benefit of, that party; or
(b) money is ordered to be paid by him or on his behalf.
(‘Child’ and ‘patient’ are defined in rule 2.3)
(2)The general rule is that –
(a) the court must order a detailed assessment of the costs payable by any party who is a child or patient to his solicitor; and
(b) on an assessment under paragraph (a), the court must also assess any costs payable to that party in the proceedings, unless the court has issued a default costs certificate in relation to those costs under rule 47.11.
(3) The court need not order detailed assessment of costs in the circumstances set out in the costs practice direction.
(4) Where –
(a) a claimant is a child or patient; and
(b) a detailed assessment has taken place under paragraph (2)(a), the only amount payable by the child or patient to his solicitor is the amount which the court certifies as payable.
(This rule applies to a counterclaim by or on behalf of a child or patient by virtue of rule 20.3)
Litigants in person
48.6
(1)This rule applies where the court orders (whether by summary assessment or detailed assessment) that the costs of a litigant in person are to be paid by any other person.
(2) The costs allowed under this rule must not exceed, except in the case of a disbursement, two-thirds of the amount which would have been allowed if the litigant in person had been represented by a legal representative.
(3) The litigant in person shall be allowed –
(a) costs for the same categories of –
(i) work; and
(ii) disbursements,
which would have been allowed if the work had been done or the disbursements had been made by a legal representative on the litigant in person's behalf;
(b) the payments reasonably made by him for legal services relating to the conduct of the proceedings; and
(c) the costs of obtaining expert assistance in assessing the costs claim.
(4)The amount of costs to be allowed to the litigant in person for any item of work claimed shall be –
(a) where the litigant can prove financial loss, the amount that he can prove he has lost for time reasonably spent on doing the work; or
(b) where the litigant cannot prove financial loss, an amount for the time reasonably spent on doing the work at the rate set out in the practice direction.
(5) A litigant who is allowed costs for attending at court to conduct his case is not entitled to a witness allowance in respect of such attendance in addition to those costs.
(6) For the purposes of this rule, a litigant in person includes –
(a) a company or other corporation which is acting without a legal representative; and
(b) a barrister, solicitor, solicitor’s employee or other authorised litigator (as defined in the Courts and Legal Services Act 1990 who is acting for himself.
Costs where the court has made a group litigation order
48.6A
(1)This rule applied where the court has made a Group Litigation Order (‘GLO’).
(2)In this rule –
(a) ‘individual costs’ means costs incurred in relation to an individual claim on the group register;
(b) ‘common costs’ means –
(i) costs incurred in relation to the GLO issues;
(ii) individual costs incurred in a claim while it is proceeding as a test claim, and
(iii) costs incurred by the lead solicitor in administering the group litigation; and
(c) ‘group litigant’ means a claimant or defendant, as the case may be, whose claim is entered on the group register.
(3) Unless the court orders otherwise, any order for common costs against group litigants imposes on each group litigant several liability for an equal proportion of those common costs.
(4)The general rule is that where a group litigant is the paying party, he will, in addition to any costs he is liable to pay to the receiving party, be liable for –
(a) the individual costs of his claim; and
(b) an equal proportion, together with all the other group litigants, of the common costs.
(5) Where the court makes an order about costs in relation to any application or hearing which involved –
(a) one or more GLO issues; and
(b) issues relevant only to individual claims,
the court will direct the proportion of the costs that is to relate to common costs and the proportion that is to relate to individual costs.
(6) Where common costs have been incurred before a claim is entered on the group register, the court may order the group litigant to be liable for a proportion of those costs.
(7) Where a claim is removed from the group register, the court may make an order for costs in that claim which includes a proportion of the common costs incurred up to the date on which the claim is removed from the group register. (Part 19 sets out rules about group litigation.)
Extracts from the costs practice direction Section 11
Factors to be taken into account in deciding the amount of costs: rule 44.5
11.1 In applying the test of proportionality the court will have regard to rule 1.1(2)(c). The relationship between the total of the costs incurred and the financial value of the claim may not be a reliable guide. A fixed percentage cannot be applied in all cases to the value of the claim in order to ascertain whether or not the costs are proportionate.
11.2 In any proceedings there will be costs which will inevitably be incurred and which are necessary for the successful conduct of the case. Solicitors are not required to conduct litigation at rates which are uneconomic. Thus in a modest claim the proportion of costs is likely to be higher than in a large claim, and may even equal or possibly exceed the amount in dispute.
11.3 Where a trial takes place, the time taken by the court in dealing with a particular issue may not be an accurate guide to the amount of time properly spent by the legal or other representatives in preparation for the trial of that issue.
11.4 Where a party has entered into a funding arrangement the costs claimed may, subject to rule 44.3B include an additional liability.
11.5 In deciding whether the costs claimed are reasonable and (on a standard basis assessment) proportionate, the court will consider the amount of any additional liability separately from the base costs.
11.6 In deciding whether the base costs are reasonable and (if relevant) proportionate the court will consider the factors set out in rule 44.5.
11.7Subject to paragraph 17.8(2), when the court is considering the factors to be taken into account in assessing an additional liability, it will have regard to the facts and circumstances as they reasonably appeared to the solicitor or counsel when the funding arrangement was entered into and at the time of any variation of the arrangement.
11.8
(1) In deciding whether a percentage increase is reasonable relevant factors to be
taken into account may include:
(a) the risk that the circumstances in which the costs, fees or expenses would be payable might or might not occur;
(b) the legal representative’s liability for any disbursements;
(c) what other methods of financing the costs were available to the receiving party.
(2) The court has the power, when considering whether a percentage increase is reasonable, to allow different percentages for different items of costs or for different periods during which costs were incurred.
11.9 A percentage increase will not be reduced simply on the ground that, when added to base costs which are reasonable and (where relevant) proportionate, the total appears disproportionate.
11.10In deciding whether the cost of insurance cover is reasonable, relevant factors to be taken into account include:
(1)where the insurance cover is not purchased in support of a conditional fee agreement with a success fee, how its cost compares with the likely cost of funding the case with a conditional fee agreement with a success fee and supporting insurance cover;
(2) the level and extent of the cover provided;
(3) the availability of any pre-existing insurance cover;
(4) whether any part of the premium would be rebated in the event of early settlement;
(5)the amount of commission payable to the receiving party or his legal representatives or other agents.
11.11 Where the court is considering a provision made by a membership organisation, rule 44.3B(1) (b) provides that any such provision which exceeds the likely cost to the receiving party of the premium of an insurance policy against the risk of incurring a liability to pay the costs of other parties to the proceedings is not recoverable. In such circumstances the court will, when assessing the additional liability, have regard to the factors set out in paragraph 11.10 above, in addition to the factors set out in rule 44.5.
SECTION 12 PROCEDURE FOR ASSESSING COSTS: RULE 44.7
12.1Where the court does not order fixed costs (or no fixed costs are provided for) the amount of costs payable will be assessed by the court. This rule allows the court making an order about costs either
(a) to make a summary assessment of the amount of the costs, or
(b) to order the amount to be decided in accordance with Part 47 (a detailed assessment).
12.2 An order for costs will be treated as an order for the amount of costs to be decided by a detailed assessment unless the order otherwise provides.
12.3 Whenever the court awards costs to be assessed by way of detailed assessment it should consider whether to exercise the power in rule 44.3(8) (Courts Discretion as to Costs) to order the paying party to pay such sum of money as it thinks just on account of those costs.
SECTION 13 SUMMARY ASSESSMENT: GENERAL PROVISIONS
13.1Whenever a court makes an order about costs which does not provide for fixed costs to be paid the court should consider whether to make a summary assessment of costs.
13.2 The general rule is that the court should make a summary assessment of the costs:
(1) at the conclusion of the trial of a case which has been dealt with on the fast track, in which case the order will deal with the costs of the whole claim, and
(2) at the conclusion of any other hearing, which has lasted not more than one day, in which case the order will deal with the costs of the application or matter to which the hearing related. If this hearing disposes of the claim, the order may deal with the costs of the whole claim;
(3) in hearings in the Court of Appeal to which Paragraph 14 of the Practice Direction supplementing Part 52 (Appeals) applies;
unless there is good reason not to do so e.g. where the paying party shows substantial grounds for disputing the sum claimed for costs that cannot be dealt with summarily or there is insufficient time to carry out a summary assessment.
13.3 The general rule in paragraph 13.2 does not apply to a mortgagee’s costs incurred in mortgage possession proceedings or other proceedings relating to a mortgage unless the mortgagee asks the court to make an order for his costs to be paid by another party. Paragraphs 50.3 and 50.4 deal in more detail with costs relating to mortgages.
13.4 Where an application has been made and the parties to the application agree an order by consent without any party attending, the parties should agree a figure for costs to be inserted in the consent order or agree that there should be no order for costs. If the parties cannot agree the costs position, attendance on the appointment will be necessary but, unless good reason can be shown for the failure to deal with costs as set out above, no costs will be allowed for that attendance.
13.5
(1) It is the duty of the parties and their legal representatives to assist the judge in making a summary assessment of costs in any case to which paragraph 13.2 above applies, in accordance with the following paragraphs.
(2) Each party who intends to claim costs must prepare a written statement of the costs he intends to claim showing separately in the form of a schedule:
(a) the number of hours to be claimed,
(b) the hourly rate to be claimed,
(c) the grade of fee earner;
(d) the amount and nature of any disbursement to be claimed, other than counsel’s fee for appearing at the hearing,
(e) the amount of solicitor’s costs to be claimed for attending or appearing at the hearing,
(f) the fees of counsel to be claimed in respect of the hearing, and
(g) any value added tax (VAT) to be claimed on these amounts.
(*3)The statement of costs should follow as closely as possible Form N260 and must be signed by the party or his legal representative. Where a litigant is an assisted person or is a LSC funded client or is represented by a solicitor in the litigant’s employment the statement of costs need not include the certificate appended at the end of Form N260.
(4) The statement of costs must be filed at court and copies of it must be served on any party against whom an order for payment of those costs is intended to be sought. The statement of costs should be filed and the copies of it should be served as soon as possible and in any event not less than 24 hours before the date fixed for the hearing.
(5) *Where the litigant is or may be entitled to claim an additional liability the statement filed and served need not reveal the amount of that liability.
13.6The failure by a party, without reasonable excuse, to comply with the foregoing paragraphs will be taken into account by the court in deciding what order to make about the costs of the claim, hearing or application, and about the costs of any further hearing or detailed assessment hearing that may be necessary as a result of that failure.
13.7 If the court makes a summary assessment of costs at the conclusion of proceedings the court will specify separately
(1) the base costs, and if appropriate, the additional liability allowed as solicitor’s charges, counsel’s fees, other disbursements and any VAT; and
(2) the amount which is awarded under Part 46 (Fast Track Trial Costs).
13.8 The court awarding costs cannot make an order for a summary assessment of costs by a costs officer. If a summary assessment of costs is appropriate but the court awarding costs is unable to do so on the day, the court must give directions as to a further hearing before the same judge.
13.9 * The court will not make a summary assessment of the costs of a receiving party who is an assisted person or LSC funded client.
13.10 * A summary assessment of costs payable by an assisted person or LSC funded client is not by itself a determination of that person’s liability to pay those costs (as to which see rule 44.17 and paragraphs 21.1 to 23.17 of this Practice Direction).
13.11
(1) The court will not make a summary assessment of the costs of a receiving party who is a child or patient within the meaning of Part 21 unless the solicitor acting for the child or patient has waived the right to further costs (see paragraph 51.1 below).
(2) The court may make a summary assessment of costs payable by a child or patient.
13.12
(1) Attention is drawn to rule 44.3A which prevents the court from making a summary assessment of an additional liability before the conclusion of the proceedings or the part of the proceedings to which the funding arrangement relates. Where this applies, the court should nonetheless make a summary assessment of the base costs of the hearing or application unless there is a good reason not to do so.
(2) Where the court makes a summary assessment of the base costs all statements of costs and costs estimates put before the judge will be retained on the court file.
13.13The court will not give its approval to disproportionate and unreasonable costs. Accordingly:
(a) When the amount of the costs to be paid has been agreed between the parties the order for costs must state that the order is by consent.
(b) If the judge is to make an order which is not by consent, the judge will, so far as possible, ensure that the final figure is not disproportionate and/or unreasonable having regard to Part 1 of the CPR. The judge will retain this responsibility notwithstanding the absence of challenge to individual items in the make-up of the figure sought. The fact that the paying party is not disputing the amount of costs can however be taken as some indication that the amount is proportionate and reasonable. The judge will therefore intervene only if satisfied that the costs are so disproportionate that it is right to do so.
Section 14 Summary assessment where costs claimed include an additional liability
Orders made before the conclusion of the proceedings
14.1The existence of a conditional fee agreement or other funding arrangement within the meaning of rule 43.2 is not by itself a sufficient reason for not carrying out a summary assessment.
14.2 Where a legal representative acting for the receiving party has entered into a conditional fee agreement the court may summarily assess all the costs (other than any additional liability).
14.3 Where costs have been summarily assessed an order for payment will not be made unless the court has been satisfied that in respect of the costs claimed, the receiving party is at the time liable to pay to his legal representative an amount equal to or greater than the costs claimed. A statement in the form of the certificate appended at the end of Form N260 may be sufficient proof of liability. The giving of information under rule 44.15 (where that rule applies) is not sufficient.
14.4 The court may direct that any costs, for which the receiving party may not in the event be liable, shall be paid into court to await the outcome of the case, or shall not be enforceable until further order, or it may postpone the receiving party’s right to receive payment in some other way.
Orders made at the conclusion of the proceedings
14.5Where there has been a trial of one or more issues separately from other issues, the court will not normally order detailed assessment of the additional liability until all issues have been tried unless the parties agree.
14.6 Rule 44.3A(2) sets out the ways in which the court may deal with the assessment of the costs where there is a funding arrangement. Where the court makes a summary assessment of the base costs:
(1) The order may state separately the base costs allowed as (a) solicitor’s charges, (b) counsel’s fees, (c) any other disbursements and (d) any VAT;
(2) the statements of costs upon which the judge based his summary assessment will be retained on the court file.
14.7 Where the court makes a summary assessment of an additional liability at the conclusion of proceedings, that assessment must relate to the whole of the proceedings; this will include any additional liability relating to base costs allowed by the court when making a summary assessment on a previous application or hearing.
14.8 Paragraph 13.13 applies where the parties are agreed about the total amount to be paid by way of costs, or are agreed about the amount of the base costs that will be paid. Where they disagree about the additional liability the court may summarily assess that liability or make an order for a detailed assessment.
14.9In order to facilitate the court in making a summary assessment of any additional liability at the conclusion of the proceedings the party seeking such costs must prepare and have available for the court a bundle of documents which must include –
(1) a copy of every notice of funding arrangement (Form N251) which has been filed by him;
(2) a copy of every estimate and statement of costs filed by him;
(3) a copy of the risk assessment prepared at the time any relevant funding arrangement was entered into and on the basis of which the amount of the additional liability was fixed.
Section 20 Procedure
Where legal representative wishes to reccover from his client and agreed percentage increase which has been disallowed or reduced on assessment: Rule 44.16
20.1
(1)Attention is drawn to Regulation 3(2)(b) of the Conditional Fee Agreements Regulations 2000 and to Regulation 5(2)(b) of the Collective Conditional Fee Agreements Regulations 2000, which provide that some or all of a success fee ceases to be payable in certain circumstances.
(2)Rule 44.16 allows the court to adjourn a hearing at which the legal representative acting for the receiving party applies for an order that a disallowed amount should continue to be payable under the agreement.
20.2In the following paragraphs ‘counsel’ means counsel who has acted in the case under a conditional fee agreement which provides for a success fee. A reference to counsel includes a reference to any person who appeared as an advocate in the case and who is not a partner or employee of the solicitor or firm which is conducting the claim or defence (as the case may be) on behalf of the receiving party.
Procedure following summary assessment
20.3
(1)If the court disallows any amount of a legal representative’s percentage increase, the court will, unless sub-paragraph (2) applies, give directions to enable an application to be made by the legal representative for the disallowed amount to be payable by his client, including, if appropriate, a direction that the application will be determined by a costs judge or district judge of the court dealing with the case.
(2)The court that has made the summary assessment may then and there decide the issue whether the disallowed amount should continue to be payable, if:
(a) the receiving party and all parties to the relevant agreement consent to the court doing so;
(b) the receiving party (or, if corporate, an officer) is present in court; and
(c) the court is satisfied that the issue can be fairly decided then and there.
Procedure following detailed assessment
20.4
(1)Where detailed assessment proceedings have been commenced, and the paying party serves points of dispute (as to which see Section 34 of this Practice Direction), which show that he is seeking a reduction in any percentage increase charged by counsel on his fees, the solicitor acting for the receiving party must within 3 days of service deliver to counsel a copy of the relevant points of dispute and the bill of costs or the relevant parts of the bill.
(2) Counsel must within 10 days thereafter inform the solicitor in writing whether or not he will accept the reduction sought or some other reduction. Counsel may state any points he wishes to have made in a reply to the points of dispute, and the solicitor must serve them on the paying party as or as part of a reply.
(3) Counsel who fails to inform the solicitor within the time limits set out above will be taken to accept the reduction unless the court otherwise orders.
20.5Where the paying party serves points of dispute seeking a reduction in any percentage increase charged by a legal representative acting for the receiving party, and that legal representative intends, if necessary, to apply for an order that any amount of the percentage disallowed as against the paying party shall continue to be payable by his client, the solicitor acting for the receiving party must, within 14 days of service of the points of dispute, give to his client a clear written explanation of the nature of the relevant point of dispute and the effect it will have if it is upheld in whole or in part by the court, and of the client’s right to attend any subsequent hearings at court when the matter is raised.
20.6Where the solicitor acting for a receiving party files a request for a detailed assessment hearing it must if appropriate, be accompanied by a certificate signed by him stating:
(1) that the amount of the percentage increase in respect of counsel’s fees or solicitor’s charges is disputed;
(2) whether an application will be made for an order that any amount of that increase which is disallowed should continue to be payable by his client;
(3) that he has given his client an explanation in accordance with paragraph 20.5; and,
(4) whether his client wishes to attend court when the amount of any relevant percentage increase may be decided.
20.7
(1)The solicitor acting for the receiving party must within 7 days of receiving from the court notice of the date of the assessment hearing, notify his client, and if appropriate, counsel in writing of the date, time and place of the hearing.
(2)Counsel may attend or be represented at the detailed assessment hearing and may make oral or written submissions.
20.8
(1) At the detailed assessment hearing, the court will deal with the assessment of the costs payable by one party to another, including the amount of the percentage increase, and give a certificate accordingly.
(2) The court may decide the issue whether the disallowed amount should continue to be payable under the relevant conditional fee agreement without an adjournment if:
(a) the receiving party and all parties to the relevant agreement consent to the court deciding the issue without an adjournment,
(b) the receiving party (or, if corporate, an officer or employee who has authority to consent on behalf of the receiving party) is present in court, and
(c) the court is satisfied that the issue can be fairly decided without an adjournment.
(3) In any other case the court will give directions and fix a date for the hearing of the application.
Section 52 litigants in person: Rule 48.6
52.1In order to qualify as an expert for the purpose of rule 48.6(3)(c) (expert assistance in connection with assessing the claim for costs), the person in question must be a
(1)barrister,
(2) solicitor,
(3) Fellow of the Institute of Legal Executives,
(4) Fellow of the Association of Law Costs Draftsmen,
(5) aw costs draftsman who is a member of the Academy of Experts,
(6) law costs draftsman who is a member of the Expert Witness Institute.
52.2Where a litigant in person wishes to prove that he has suffered financial loss he should produce to the court any written evidence he relies on to support that claim, and serve a copy of that evidence on any party against whom he seeks costs at least 24 hours before the hearing at which the question may be decided.
52.3 Where a litigant in person commences detailed assessment proceedings under rule 47.6 he should serve copies of that written evidence with the notice of commencement.
52.4 The amount, which may be allowed to a litigant in person under rule 46.3(5)(b) and rule 48.6(4), is £9.25 per hour.
52.5 Attention is drawn to rule 48.6(6)(b). A solicitor who, instead of acting for himself, is represented in the proceedings by his firm or by himself in his firm name, is not, for the purpose of the Civil Procedure Rules, a litigant in person.