CIVIL PROCEDURE BACK TO BASICS 81: THE SUMMARY ASSESSMENT OF COSTS: AVOIDING PROBLEMS
Over the years we have seen a major difference in judicial responses to a failure to have a schedule of costs at a relevant hearing. Some judges are forgiving, some simply order no – or minimal – costs. In SRA -v-Imran  EWHC 2572 (Admin).The respondent had failed to file a schedule of costs. Rather than order a detailed assessment the judge’s response was to order a “nominal” amount of costs. How is the scenario best avoided? It is often the case that the best way of looking at these issues is to go back to basics and look directly at the Rules and Practice Directions:
The Court will normally order a summary assessment of costs at the end of a Fast Track Trial.
There is a presumption that summary assessment will take place in any case where a hearing lasts less than one day.
The bill of costs should be lodged two days in advance in the case of a fast track trial.
The bill of costs should be lodged one day in advance in all other cases.
The statement of costs should, as closely as possible, follow Form N260
LOOK AT THE RULES CPR 44.6
(1) Where the court orders a party to pay costs to another party (other than fixed costs) it may either –
(a) make a summary assessment of the costs; or
(b) order detailed assessment of the costs by a costs officer,
unless any rule, practice direction or other enactment provides otherwise.
(Practice Direction 44 – General rules about costs sets out the factors which will affect the court’s decision under paragraph (1).)
LOOK AT THE PRACTICE DIRECTION: PD 44
“Procedure for assessing costs: rule 44.6
Summary assessment: general provisions
Subject to paragraph 8.3, where the court does not order fixed costs (or no fixed costs are provided for) the amount of costs payable will be assessed by the court. Rule 44.6 allows the court making an order about costs either –
(a) to make a summary assessment of the amount of the costs; or
(b) to order the amount to be decided in accordance with Part 47 (a detailed assessment).
An order for costs will be treated as an order for the amount of costs to be decided by a detailed assessment unless the order otherwise provides.
Where a party is entitled to costs some of which are fixed costs and some of which are not, the court will assess those costs which are not fixed. For example, the court will assess the disbursements payable in accordance with rules 45.12 or 45.19. The decision whether such assessment should be summary or detailed will be made in accordance with paragraphs 9.1 to 9.10 of this Practice Direction.
When the court should consider whether to make a summary assessment
Whenever a court makes an order about costs which does not provide only for fixed costs to be paid the court should consider whether to make a summary assessment of costs.
Timing of summary assessment
The general rule is that the court should make a summary assessment of the costs –
(a) at the conclusion of the trial of a case which has been dealt with on the fast track, in which case the order will deal with the costs of the whole claim; and
b) at the conclusion of any other hearing, which has lasted not more than one day, in which case the order will deal with the costs of the application or matter to which the hearing related. If this hearing disposes of the claim, the order may deal with the costs of the whole claim,
unless there is good reason not to do so, for example where the paying party shows substantial grounds for disputing the sum claimed for costs that cannot be dealt with summarily.
Duty of parties and legal representatives
(1) It is the duty of the parties and their legal representatives to assist the judge in making a summary assessment of costs in any case to which paragraph 9.2 above applies, in accordance with the following subparagraphs.
(c) the grade of fee earner;
(d) the amount and nature of any disbursement to be claimed, other than counsel’s fee for appearing at the hearing;
(e) the amount of legal representative’s costs to be claimed for attending or appearing at the hearing;
(g) any VAT to be claimed on these amounts.
(3) The statement of costs should follow as closely as possible Form N260 and must be signed by the party or the party’s legal representative. Where a party is –
(a) an assisted person;
(b) a LSC funded client;
(c) a person for whom civil legal services (within the meaning of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012) are provided under arrangements made for the purposes of that Part of that Act; or
(d) represented by a person in the party’s employment,
the statement of costs need not include the certificate appended at the end of Form N260.
(4) The statement of costs must be filed at court and copies of it must be served on any party against whom an order for payment of those costs is intended to be sought as soon as possible and in any event –
(a) for a fast track trial, not less than 2 days before the trial; an
The failure by a party, without reasonable excuse, to comply with paragraph 9.5 will be taken into account by the court in deciding what order to make about the costs of the claim, hearing or application, and about the costs of any further hearing or detailed assessment hearing that may be necessary as a result of that failure.
- The summary assessment of costs; useful links
- The Senior- Court Costs Office Guide to summary assessment is an essential starting point
- Clarion have a succinct summary of all the key points in a summary assessment
- Legal Costs Negotiators Ltd have a summary of recent case law on summary assessment
- This article by District Judge Letham on maximising costs on summary assessment is now 12 years old, but the points are still highly relevant
- There is an explanation of summary assessment in Jackson LJ’s 8th lecture in the implementation programme.
- Litigation Futures carries a report of a case where the costs were summarily assessed at £351,000
- The New Law Journal reports a case where the judge refused to summarily assess costs which were disproportionate.
- The price to pay for the absence of a costs schedule.