Proportionality and provisional assessment

Reading Points of Dispute, particularly those which are submitted for a provisional assessment, I am struck by how frequently, I see “General Point One” pitched as a challenge to the Bill of Costs on the grounds of proportionality. Sometimes the body of the point of dispute, goes on to witter about a test of necessity.

This is all charmingly antique.

The new test of proportionality (which is now more than two years old) simply requires a costs judge to go through a bill looking at the items incurred on the basis of a test of reasonableness, and then and only then, having conducted a reasonableness based assessment, consider whether the bill should be further reduced on the grounds that the costs, although reasonable are disproportionate in relation to the subject matter of the case.

But old habits die hard, and although the new test of proportionality is conceptually clear, the rules on provisional assessment seem designed to frustrate its easy application by costs judges.

This can be demonstrated in a number of respects

The first point is to note that the courts still require the submission of a paper Bill, paper Points of Dispute and paper Replies, with space for a Costs Judge’s comments, on which he laboriously scratches his rulings in hieroglyphics.

The submission of a claim for costs in a digital spreadsheet form, incorporating three columns for both sides contentions and the courts ruling, is not currently on the horizon. The use of a spreadsheet (hardly a novel aid to efficiency) would of course, enable adjustments to hourly rates or other items to be carried through to a revised total in the bill.

The second is to note that absent some honourable exceptions in the Senior Courts Costs Office, costs judges do not work out the mathematical consequences of their rulings on reasonableness.

Hence when they have gainfully used the 40 minutes alloted to them by the court service for each provisional assessment, they do not know, what the running total of costs that they have allowed to that point actually amounts to. Without knowing what the total amount of costs assessed to be reasonable to that point is, then they simply cannot apply the test of proportionality, lacking that crucial data.

How can this problem be addressed within the current constraints of the rules? It seems to me that it could be addressed in two ways.

The first is for practitioners to recast their case on proportionality and put the proportionality point at the end of the Points of Dispute and suggest a figure, for what they contend is a proportionate sum for the total sum of costs to be allowed notwithstanding any conclusions on the reasonableness of individual items.

In effect instead of asking a costs judge to rule that costs are proportionate or disproportionate, to rule what figure would be a proportionate award of costs. In a sense, this is not only the ultimate question on assessment, it has the potential to be the only question.

The second is to specifically ask the costs judge not to rule on proportionality, until the maths has been done by the parties, on the basis of his conclusions on the reasonableness of individual items. Then and only then, will he be able to conclude whether the costs as allowed to that point are proportionate or whether a further reduction is required.

In effect to have a provisional assessment in two parts: given that the rules envisage to-ing and fro-ing for part 36 purposes, this would not run against the conceptual grain of provisional assessment.

Of course, all this presupposes that costs judges are actively engaged in provisional assessment, that they assiduously read Points of Dispute and Replies, and make findings accordingly.

If as a question of fact, they by and large ignore the documents apart from the Bill of Costs, and conduct a rough and ready summary assessment, in their alloted 40 minutes, then it may be time to rethink how costs are assessed on a more fundamental level.

Fixed costs anyone?


3 thoughts on “Proportionality and provisional assessment

  1. Quite

    No one seems capable of setting out an argument that actually interacts with this conceptual framework of the test relied on and most lengthy points fail even to put an arbitrary figure on what is proportionate even in the page long diatribe this generates

  2. A well thought-out issue.

    In regards to the average Defendant’s proportionality issues. I have seen several sets of Points which have clearly had the proportionality point pasted from a pre-jackson set.

    I have also had a few District Judges request electronic copies of my Replies so that they can type their decisions up rather than leave us to try and decipher the scrawl.

    Turning to your second suggestion. I have seen several Courts include in their Orders returning the Provisionally Assessed Bill, that once the figure has been agreed by the parties, they shall consider whether or not the total sum is proportionate at the point of opening the sealed “offers” envelope.

    So it seems that in terms of the Courts, the real issue may be spreading best practice and we can only hope this occurs at a faster pace.

    I would question though whether or not the reason that some Defendant’s are not having success is not their failure to adequately frame the point, but rather that those assessing officers outside of the SCCO may not feel comfortable determining that their item by item assessment is overly generous, and give opinion on what a total “proportionate figure” would be.

  3. I believe that costs in NIHL claims could prove fruitful territory for a proportionality based challenge. Damages tend to be low, costs are relatively high and given the influx of new entrants into industrial disease work seeking fatter profits than are now available in eg RTA litigation this is a case waiting to be brought.

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