COSTS
COURT'S DISCRETION
court may make costs order at any time (PD 44 para 4.1)
court has discretion as to: whether costs payable, amount + when to be paid (r44.2(1))
court must have regard to all circumstances including:
conduct of parties:
before (particularly extent pre-action protocols followed) + during proceedings
whether reasonable to raise / pursue / contest allegation issue
manner party defended case / pursued particular allegation or issue
whether wholly / partly successful C exaggerated claim
whether party succeeded on case, even if only in part
admissible offer to settle (except Part 36)
BASIS OF ASSESSMENT
court will NOT allow unreasonably incurred costs OR costs unreasonable in amount (r44.3(1))
in assessing whether reasonable (+ proportionate if standard basis), court will:
give effect to any orders already made (r44.4(2))
have regard to:
conduct of parties (before + during proceedings AND settlement attempts)
amount / value of money / property
importance of matter to all parties
complexity of matter / difficulty of Qs raised
skill, effort, specialised responsibility involved
time spent on case
place + circumstances in which any work done
receiving party's last approved / agreed costs budget (r44.4(3))
Standard basis
only includes costs which are:
proportionate
bear reasonable relationship to:
sums in issue
value of non-monetary relief in issue
complexity of litigation
extra work generated by paying party's conduct
wider factors e.g. reputation (r44.4(5))
reasonably incurred
reasonable in amount
any doubt re: reasonableness / proportionality of costs resolved in favour of paying party (r44.3(2)(b))
Indemnity basis
only includes costs which are:
reasonably incurred; AND
reasonable in amount
any doubt re: reasonableness of costs resolved in favour of receiving party (r44.3(3))
time for compliance with costs order
party must comply within 14 days of:
summary assessment: date of judgment / order if states amount of costs; OR
detailed assessment: date of certificate stating amount (part 47); OR
such other date as court specifies (r44.7)
METHODS OF ASSESSMENT
Summary assessment (SA) = court determines costs immediately at end of hearing, on rough + ready basis
when is SA suitable / made
conclusion of fast-track trial (order will deal with costs of whole claim); AND
conclusion of any other hearing lasting up to 1 day e.g. interim hearing
who can make?
NOT court officer, only judge (PD 44 para 9.7)
who CANNOT get summary assessment
receiving party who is:
publicly funded
child / PP (unless their rep waives right to further costs) (PD 44 para 9.8, 9.9(1))
N.B. court may make summary assessment of costs payable by child / PP
procedure
each party intending to claim costs must:
prepare written statement of costs
show separately in schedule:
number of hours
hourly rate
grade of fee earner
amount + nature of disbursement (excluding counsel's fee for hearing)
amount of legal rep's fee for hearing
counsel's fees
VAT (PD 44 para 9.5(1), (2))
sign statement OR get legal rep to sign it
include certificate at end of form N260 unless party is
assisted person
LSC funded
entitled to civil legal services under LASPO
represented by own employee (PD 44 para 9.5(3))
file statement at court
serve copy on all parties against whom costs intended to be sought ASAP, and in any event
fast track - not less than 2 days before trial
all other hearings - not less than 24 hours before time of hearing (PD 44 para 9.5(4))
if fail to serve, proportionate response - adjourn for detailed assessment / summary assessment at later date
time for payment - party must pay within 14 days of date of judgment / order
Detailed Assessment (DA)
costs judge considers amount at assessment hearing after parties have had opportunity to set out amount claimed + points of dispute in writing
when?
generally - conclusion of proceedings
BUT court may order them to be assessed immediately (r47.1)
authorised court officer
has all powers of court when making detailed assessment except power to make:
wasted costs order
order in relation to misconduct (r44.11)
sanction for delay in commencing detailed assessment (r47.8)
detailed assessment of costs payable to a solicitor by their client (unless paid to child / PP) (r47.3(1)
if party objects to court officer assessing, court may order costs judge / DJ to make (r47.3(2))
venue for DA
must make application / request to OR file at appropriate office (r47.4(1)):
court may direct appropriate office = costs office (r47.4(3))
coco may direct appropriate office = another coco, without transferring proceedings to that court (r47.4(3), (4))
procedure for DA if costs not agreed
bill of costs - receiving party prepares
commencement - by receiving party
commence within 3 months of judgment (/ discontinuance / acceptance of part 36 offer)
if don't commence in time
paying party can apply for order requiring commencement court can disallow receiving party's costs
if don't apply for order, court may only disallow interest
commenced by receiving party serving on paying party:
notice of commencement; AND
copy of bill of costs (r47.6(1))
points of dispute - by paying party
paying party may dispute any item in bill of costs by serving points of dispute on receiving party within 21 days of service of notice of commencement
if fail to serve receiving party may file request for default costs certificate
court may set aside certificate if good reason for proceedings to continue
receiving party may serve reply within 21 days of service of points of dispute
request for DA hearing - by receiving party
receiving party must file request for DA hearing within 3 months of end of time for commencement
if don't file in time, sanctions same as failure to commence in time - disallow costs...
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