APPEALING A PROVISIONAL ASSESSMENT IS NOT A JAMBOREE: APPELLANT HAS TO STATE WHAT THEY ARE APPEALING AND HEARING IS CONFINED TO THOSE MATTERS

In  PME v The Scout Association [2019] EWHC 3421 (QB) Mr Justice Stewart upheld the decision of Master Leonard in relation to the scope of an appeal from a costs officer.

“The consequences of the Appellant’s case are wholly undesirable. They involve potential substantial wastage of the court and the parties’ time and resources. That would be an affront to the Overriding Objective which requires a court to deal with a case justly and at proportionate cost”

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 rejected the claimant’s argument that the costs officer did not have jurisdiction.  The Master also found that the scope of the appeal was limited and not “open ended” as the claimant argued. The claimant appealed.  The case is examined in an earlier post here.

THE DECISION ON APPEAL

Mr Justice Stewart rejected the claimant’s argument that an appeal was essentially “open ended” despite the limited grounds initially put forward.

1. 1. Of some importance is CPR 47.15(10). This provides a disincentive to requesting an oral hearing (whether by judge or by an ACO) in that, unless the court otherwise orders, a party requesting an oral hearing will pay the costs of and incidental to that hearing unless achieving an improvement by 20% or more of the sum provisionally assessed. One may posit the example of a bill claimed at £50,000 where the provisional assessment was £30,000. Assume a party challenged the bill on one ground only and received only £2,000 more at an oral hearing. They would then bear the costs of an incidental to that oral hearing. If in the case of a provisional assessment and oral hearing by an ACO an Appellant could have a full appeal on all disputed bill items, what would be the costs consequence if the one item in the oral hearing still came out at £2,000, but by reason of the other challenged items the party obtained £40,000? Who would then the costs of the hearing before the ACO? The Appellant submitted that the matter would be arguable in that one party could say that they have achieved the correct result on appeal and therefore should have the costs of the hearing before the ACO as well as before the Judge, whereas the other party could say that the points should all have been taken at the oral hearing. This would be another unfortunate potential consequence of the Appellant’s stance.

   2. The Appellant accepted that the logic of his argument was that either party could ‘keep its powder dry’. Thus, for example, the receiving party may ask for an oral hearing before the ACO on, say one bill item only. After that had been decided, the paying party (as well as the receiving party) had 21 days to appeal the entire bill, even though it had not previously notified any challenge to the provisional assessment. It is not easy to see how parties could advise their client or make sensible offers if the Appellant’s submission were correct.

   3. The consequences of the Appellant’s case are wholly undesirable. They involve potential substantial wastage of the court and the parties’ time and resources. That would be an affront to the Overriding Objective which requires a court to deal with a case justly and at proportionate cost. The provisions in CPR 47.3(2) [read in conjunction with 47PD paragraphs 3.2 and 3.3] and the appeal provisions peculiar to ACOs properly cover the justice of allowing a party full access to a judge after an oral hearing. Of course if the Rules properly construed led to the conclusion that the Appellant’s case on appeal was correct, then this court would have to so decide. However, for the reasons already given, they do not.

   4. All these conclusions are consistent with drawing distinction between a provisional assessment and oral hearing before an ACO, and a provisional assessment and oral hearing before a judge. In this regard I agree entirely with the Master when he said at [72]:

“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 re-hearing of decisions which that party has previously accepted.”

1. 1. In other words:

i) At the stage of provisional assessment the parties can accept the provisional assessment or challenge it – with risk as to costs.

ii) If they challenge it they have to set out the items which are challenged. These are then determined at the oral hearing.

iii) Parties may challenge all the decisions in the provisional assessment. There is no limit.

iv) However, if they do not then they are entitled to (a) an oral determination of the issues they have identified and (b) an appeal by way of re-hearing of the decision in relation to those issues.

1. For those reasons the Master was correct and the appeal is dismissed