THE COSTS OF PROVISIONAL ASSESSMENT: THE CAP ALWAYS FITS
In W Portsmouth and Company Ltd v Lowin  EWCA Civ 2172 the Court of Appeal held that the cap on the costs of provisional assessment continues to apply even when a receiving party has beaten their own Part 36 offer on costs.
The claimant made an offer to settle her costs in the sum of £32,000. She was awarded £32,255.35 on a provisional assessment. The one issue between the parties was whether the cap on the cost of assessment of costs of £1,500 plus VAT (& court fees) still applied when a receiving party beat their own offer.
THE HEARINGS BELOW
The Master held that the £1,500 cap remained. Master Whalan held:
“Assessment of the claimant’s costs of the assessment can properly be undertaken pursuant to CPR 36.17(4)(b)/(c) but this does not, in my judgment, dislodge the effect of CPR 47.15(5) which has the effect of capping the ‘maximum amount the court will award’ to the receiving party to £1,500 plus VAT plus court fees which in [this] case was £1,005.”
This decision was overturned by the High Court judge (sitting with an assessor). She held that the cap no longer applied.
THE COURT OF APPEAL
The Court of Appeal restored the decision of the Master.
- “CPR rule 47.20(4) provides expressly that Part 36 shall apply to the costs of a detailed assessment subject to four express modifications which are irrelevant for these purposes. No mention is made of CPR Part 47.15(5) and it is not modified in any way. It seems to me that if it had been intended that that rule was to be disapplied in the case of an assessment of costs on the indemnity basis under CPR rule 36.17(4)(b) there would have been an express reference to it in either or both of the provisions or in rule 47.20(4). There is nothing in any of those rules to suggest that rule 47.15(5) should be disapplied or modified.”
SO IS IT WORTH MAKING A PART 36 OFFER?
Remember the advantages – the receiving party receives additional interest and costs.