John M Hayes are always thorough and meticulous in the preparation of bills but more importantly than that they are very approachable and willing to help. Dealing with them is a pleasure.
Brendan McNeany, Partner, Samuel Phillips
The Provisional Assessment Pilot Scheme, which has been running in Leeds, York and Scarborough County Courts since October 2010 and which provides for inter-partes bills with base costs of up to £25,000 to be assessed by a District Judge on paper and thereby avoiding a costly and time-consuming detailed assessment hearing, is to be extended nationally from April 2013.
On the face of it, this is not a bad thing. Since the introduction of CPR in 1999, the costs of detailed assessment proceedings have increased substantially. It is not unusual for the costs of detailed assessment, even in small matters, to run into several thousand pounds and hearings are rarely less than half a day long. This is clearly a disproportionate use of the parties’ and the court’s time. Consequently, in principle, the introduction of a much quicker and cheaper way of assessing the more modest bills is to be applauded.
There is, however, a potentially serious flaw in the proposed scheme which involves not only assessment on paper but also the introduction of simpler and more concise Points of Dispute and Replies to Points of Dispute. Whilst the serving of overly detailed Points and Replies should certainly be discouraged, surely, if it is likely that the bill is to be assessed on the basis of the submissions on paper alone, it is important that each party should be given ample opportunity to put forward its arguments. The new-style Points of Dispute and Replies do not appear to provide for this.
For instance, it is apparently envisaged that references to case law would be discouraged, but if there is a fundamental dispute over a potentially substantial item or issue it is difficult to see how, in many instances this would enable the parties to properly put forward their arguments. At the current time any reference to case law can be made at assessment. Under the new regime this will not be possible. Some assessing judges will doubtless be aware of the relevant case law but others may not. In the latter instance there is a real chance that an injustice will result.
Even if case law is not an issue, it is often necessary to elaborate where an item is in dispute. For instance, it may be necessary for a solicitor to consider a large volume of documentation in order to prepare a statement. The statement may itself be short and without further justification the preparation time may, on the face of it, appear wholly unreasonable. Without elaborating in a Reply, it could prove very difficult to recover properly claimable time.
It is also envisaged that objections to document time as a whole will be brief. In the new Precedent G, for instance, there is a six-line objection covering a document section which, it is suggested, should be reduced to 22.25 hours. Assuming that at least 30 hours have been claimed in the bill, this would mean a suggested reduction of 7.75 hours which, even at Grade C rates, would equate to a reduction of approximately £1200 plus VAT. This is a substantial sum and must surely justify more consideration than the suggested Point of Dispute would allow. It is not suggested that a line-by-line approach to a lengthy document section should be followed. There is a mid-way approach where the common issues are raised and brief references made to each date on which the issue arises together with specific objections to individual substantial items. This it is submitted, should be the favoured approach
Should any party see the above as an excuse to prepare over-elaborate Points or Replies, the proposed introduction of a limit to the fees which will be recoverable for costs of detailed assessment under the scheme should provide an adequate discouragement.
If a party is dissatisfied with the outcome of the provisional assessment there is provision for a full hearing. However, with the sanction of adverse costs consequences unless that party achieves a result at least 20% better than that allowed on provisional assessment, I suspect that few will chose to dispute the provisional assessment. This makes it all the more important that the correct decision should be made in the first place.
In theory the rolling out of the provisional assessment scheme provides a real opportunity to make the costs of assessment more reasonable, proportionate and affordable. However, the danger with the proposals as they stand, is that Provisional Assessment will effectively become Summary Assessment in all but name. This is surely not what was intended by Lord Justice Jackson.