WHEN YOU ARE CHALLENGING A PROVISIONAL ASSESSMENT “BE PREPARED”: MASTER FINDS THAT COURT COSTS OFFICERS DO HAVE JURISDICTION TO CONDUCT PROVISIONAL ASSESSMENTS: THE LIMITED SCOPE OF AN APPEAL FROM A PROVISIONAL ASSESSMENT

I am grateful to my colleague Robin Dunne for sending me a copy of the decision of Master Leonard in PME -v- The Scout Association (30/07/2019).    1. JUDGMENT PME (003).  This deals with two issues (i) the jurisdiction of costs officers to conduct provisional assessments; the scope of an appeal from an oral hearing following a provisional assessment.  (After initial publication the case became available on BAILLI and is available here).

“I do not believe that there is a viable argument to the effect that authorised court officers have no jurisdiction to conduct provisional assessments. It seems to me that the clear intention of the rules is that they should, and that the Claimant’s interpretation of the rules to the contrary is insupportable.

There is no appeal from a provisional assessment, only from an oral hearing, if requested. That appeal, whether under CPR 42.21 or otherwise, will be limited to decisions made at the hearing.

In this case the Claimant accepted the authorised court officer’s provisional assessment on all but two points, and then accepted one of the remaining points at the beginning of the oral hearing. It would be contrary to the overriding objective to accept that the Claimant has the right to go back on his own decisions and restart the entire detailed assessment process through the appeal procedure.”

THE CASE

The claimant was ordered to pay the defendant’s costs. Those costs were summarily assessed by the Principal Costs Officer at the SCCO. The claimant requested an oral hearing and that hearing took place.  The only issue the claimant took at the oral hearing was hourly rates. The claimant then filed a notice of appeal. That notice sought a “de novo detailed assessment” before a costs judge.  On the day of the hearing the claimant raised a new argument that the costs officer did not have authority to conduct a provisional assessment at all.

THE MASTER’S DECISION: THE COSTS OFFICER DID HAVE JURISDICTION

The Master rejected the claimant’s argument that the costs officer did not have jurisdiction. After a lengthy review of the rules and practice directions Master Leonard concluded.

35. In short, it seems to me that the Claimant’s construction of CPR 47.15 and practice Direction 47 paragraph 14.2 is both insupportable and contrary to the overriding objective. The procedural and jurisdictional difficulties referred to by the Claimant, in my view, do not arise

36 It may well seem inconsistent that authorised court officers have jurisdiction under CPR 47.14 but not CPR 47.8, but that does not seem to me to have much bearing on the matter in hand. As for Bello v Tecle, I do not accept that in my judgment in that case, I identified any inconsistencies or anomalies in CPR 47 or in practice Direction 47. I believe I did no more than to point out that the proposition that one can appeal from a provisional assessment is inconsistent with the rules.

37. As for CPR 47.3(2), if a party objects to a particular assessment being heard by a court officer then they can (and should, if delay is to be avoided) apply for an order to that effect at the outset, without waiting for the case to be assigned. That aside, any experienced costs draftsman or costs lawyer (who tend to deal with most bills submitted to the SCCO) will know perfectly well whether an authorised court officer is likely to deal with the assessment, and if they are not sure they can ask. The suggestion that the undertaking of provisional assessments by authorised court officers in any way erodes the parties’ right to choose, seems to me to be fanciful.

THE SCOPE OF THE APPEAL

The parties did not agree as to the scope of an appeal from a provisional assessment.  The claimant argued that every aspect of the original assessment decision was open for review. The defendant submitted that the appeal was limited to those issues raised at the oral hearing. The Master agreed with the defendant.

The Scope of the Appeal: Conclusions

57. The Civil Procedure Rules do not make express provision for appeals from a provisional assessment, whether from an authorised court officer or otherwise. To my mind, that is because there is no right of appeal from a provisional assessment. If a party wishes to challenge the provisional assessment, that party must request an oral hearing.

58. To interpret the Civil Procedure Rules in any other way would be to allow a party to bypass the oral hearing procedure and go straight to appeal (presumably seeking any necessary permission from the appeal court). That would undermine the aim of the provisional assessment process, which is to save costs and court resources either by disposing of a hearing altogether or by proceeding to a hearing on limited issues.

59. It would also fall foul of the objections I identified in Bello v Tecle, when I concluded that CPR 47.21 does not confer a right to appeal from decisions made on provisional assessment. I will restate here, for ease of reference, my reasons for coming to that conclusion.

60 It cannot be intended that a party should have two rights to appeal, once on the provisional assessment and once again on any subsequent hearing.

61. Given that there is only one opportunity to appeal, it cannot be right that the time for appealing should run from the date of the provisional assessment, which remains provisional and subject to further adjustment until the time for requesting such further adjustment has expired.

62 The 21-day time limit for appealing (whether under CPR 47.21- 47.23 or CPR 52.12) run from the date of decision, and is clearly intended to run from the date of a decision known to the parties. Notice of provisional assessment may not arrive until some time after the relevant decision is made, and it does not advise the parties of the date of the decision. It would make no sense for the rules to provide that, following provisional assessment, time for appealing should run concurrently with time for requesting a hearing, but for a shorter period expiring on a date unknown to either party.

63. Nor can it be right that time for appealing runs, following provisional assessment, from the end of the 21 -day period for requesting a hearing, when the provisional assessment becomes final and binding. The prescribed 21-day period for appealing will by that point already have expired.

It follows that the time for appealing under CPR 47.21 runs from the date of an oral hearing. That appeal will be an appeal from the oral hearing and any right of appeal will lie from decisions made at the oral hearing.

65 Mr Hayman ‘s submission to the effect that a rehearing must be a rehearing of the issues, begs the question of what the “issues” actually are. The point of an appeal by way of rehearing is as I understand it is, first, that the appeal judge is not limited to considering whether the judge (or authorised court officer) below was wrong, and second that there is more scope for introducing new evidence. It remains, however, an appeal from the decisions of the court below.

66. In effect Mr Hayman is saying that an appeal by way of rehearing is a fresh hearing: a completely new start, with no reference to what has gone before. I do not think that that can be right. If it was, CPR 47.21 to 47.24 would not refer to an appeal from a decision of an authorised court officer and there would be no point in the provisions of Practice Direction 47, paragraph 20, for the obtaining of a record of the decision made by the authorised court officer. In fact the entire process of preparing a notice of appeal and supporting materials, as required by the CPR 47 and Practice Direction 47, would be a waste of time and costs. One would instead just request a new hearing.

67. That aside, I do not agree with Mr Hayman’s submission that the parties are free to raise at the oral hearing issues that were not identified in the request for that hearing, as required by CPR 47.15(8). The parties are, in my view, permitted to raise only the issues specified in the request.

68. I am unable to entertain the suggestion that the requirement, at CPR 47.15(8), that a party requesting an oral hearing define the items on the bill to be reviewed and provide a time estimate, is there only for administrative purposes. By limiting the issues to be addressed that provision embodies the key aim of provisional assessment: to save costs and court resources.

69. The limited nature of an oral hearing was recognised in Mehmi v Pincher by HHJ Wood, with whom I respectfully agree. As he put it, an oral hearing is “a detailed assessment in the old-fashioned way on the identified aspects… the hearing is limited to those items in the bill which are challenged under subparagraph (8) and thus is circumscribed...

70. It cannot be right that an oral hearing should be circumscribed (as it is) in the way described by HHJ Wood, and yet that an appeal from that oral hearing should not. Such an illogical arrangement would defeat the purpose of the provisional assessment process, which provides the parties with an opportunity to consider provisional decisions and to take forward, in an oral hearing, only the issues they choose to take forward. If they do, and are unsatisfied with an authorised court officer’s decision at the hearing, then they have an automatic right of appeal. If they do not, there is nothing to appeal.

In short, it seems to me that the Claimant cannot raise on this appeal issues he did not put to the authorised court officer, because (a) by excluding those issues from his request for an oral hearing, he terminated his right to raise them and (b) insofar as he did not, he chose not to raise them.

69. I am quite unable to accept that the Claimant’s right to judicial determination is in any way compromised by the proper application of the rules in the way I have described. The Claimant has had a choice, at every step, of what to contest and what not to contest. The process of appeal should not represent an opportunity for a party to demand a rehearing of decisions which that party has previously accepted.

73 I can find nothing in the costs provisions of CPR 47.15 to support the Claimant’s case. Nor can I see that CPR 47.24 has any relevance. Of course the court, on appeal, will make any order and give any directions it considers appropriate. That no bearing on the scope of the issues before the court.

74. I cannot accept Mr Hayman’s “exceptional circumstances” argument. The “exceptional circumstances” provisions of CPR 47.15(7), where the circumstances justify it, allowing extension of time to request an oral hearing. They do not furnish a pretext for reintroducing, on appeal, issues not raised at the oral hearing itself.

75 Nor do exceptional circumstances exist. In Bello v Tecle the paying party’s advisers, faced with provisional decisions for which no adequate reasoning was given, requested clarification on the basis that they could not advise the client as to whether to request an oral hearing. No clarification was forthcoming, and I found that sufficient to establish exceptional circumstances.

76. In this case, the Claimant did not request clarification of the authorised court officer’s decisions. On the contrary, the Claimant requested an oral hearing, and chose the issues to be addressed at that hearing. Clearly there was no difficulty in understanding the rationale for Mr Kenny’s decisions, and the “exceptional circumstances” argument being run now is, as Mr Dunne says, an afterthought, brought in an attempt to broaden the issues on appeal.

CONCLUSIONS

The judgment contains a helpful conclusion:

“Summary of Conclusions

81. I do not believe that there is a viable argument to the effect that authorised court officers have no jurisdiction to conduct provisional assessments. It seems to me that the clear intention of the rules is that they should, and that the Claimant’s interpretation of the rules to the contrary is insupportable.

82. There is no appeal from a provisional assessment, only from an oral hearing, if requested. That appeal, whether under CPR 42.21 or otherwise, will be limited to decisions made at the hearing.

83. In this case the Claimant accepted the authorised court officer’s provisional assessment on all but two points, and then accepted one of the remaining points at the beginning of the oral hearing. It would be contrary to the overriding objective to accept that the Claimant has the right to go back on his own decisions and restart the entire detailed assessment process through the appeal procedure.

84 In consequence, unless the Claimant wishes to raise before me the question of Ms Kenny’s right to summarily assess the costs of the oral hearing, which I shall not predetermine without submissions, the one issue remaining before me on the appeal is that of hourly rates.”