Introduction
A Detailed Assessment hearing is the last resort when it comes to attempting to negotiate costs between the parties at the conclusion of the case. In most circumstances a Detailed Assessment hearing is required when there is a fundamental disagreement between the parties in respect of the costs which cannot be compromised or resolved through negotiation. By the time a Detailed Assessment is to be requested both parties will know where they stand through the service of Points of Dispute and Replies, therefore, the request can be made when both parties are clear on what the issues are that need to be resolved by the Court.
The below is a few musings on what needs to be considered once the Detailed Assessment has been listed and the steps required to prepare for and attend the Detailed Assessment hearing.
Assessment on the Standard Basis, the burden of proof and the importance of file notes and records
Where costs are to be assessed on the standard basis it is important to note that the burden of proof is placed on the receiving party to demonstrate that the costs claimed have been reasonably incurred and are reasonable and proportionate in amount (CPR 44.3(2)(a)). Furthermore, when considering the items challenged the Court will resolve any doubt it may have in the paying party’s favour (CPR 44.3(2)(b)).
The best way of rebutting this presumption is to have clear contemporaneous records of what work was done and why it was done. It is therefore essential that the file of papers that is submitted to the Court contains all file notes and correspondence to support the costs claimed within the bill. In addition to ensuring that the file of papers is complete, it is also worth bearing in mind when preparing the contemporaneous records during the life of the claim that this may end up being read by a Judge, so it is worthwhile maintaining a professional tone throughout.
It should also be noted that the Detailed Assessment bundle (containing the file of papers) has a strict window to be submitted, namely, no more than 14 days and no less than 7 days before the listed hearing (CPR 47 PD para 13.11).
From personal experience I can confirm that having an easily navigable file of papers can place you firmly in the Judge’s good books and supports the perception that the bill is accurate and that the work undertaken was reasonable and proportionate. Failure to be able to do this is likely to waste valuable court time looking for specific entries and will likely try the Judge’s patience ultimately leading to the presumption being relied upon too readily leading to items being disallowed in their entirety.
Counsel’s fees: Making it clear what Counsel has done
When considering the contents of the Detailed Assessment bundle it is important to note that the first section of documents are ‘instructions and briefs to counsel arranged in chronological order together with all advices, opinions and drafts received and response to such instructions’ (CPR 47PD para 13.12(i)). Counsel’s fees can often account for a significant sum and the involvement or reliance upon Counsel is regularly challenged by paying parties.
This was the case in the matter of Allseas Group SA, R (On the Application of) v Sultana [2023] EWHC 2731 (SCCO). It is important to bear in mind that this judgment flowed from a costs assessment following a private prosecution, and as such, technically is under similar but slightly different rules. However, the conclusions reached by Costs Judge Leonard should be considered to be a pre-emptive warning to any civil litigators going to a Detailed Assessment under the CPR. When considering the challenges made to leading and junior counsel’s fees in this matter, Costs Judge Leonard stated that ‘where a substantial conference takes place between solicitors and Counsel I would normally expect to see a detailed record of the conference itself. Without such a record an element of doubt inevitably arises’.
As mentioned above, where doubt arises it will ultimately be resolved in favour of the paying party. As such, it is important to ensure that there are clear instructions provided to Counsel setting out the issues to be addressed within the advice or at the forthcoming conference. If this can be provided to the judge at the Detailed Assessment hearing then the major part of the battle is already won.
Kris Kilsby can be contacted here.
