QUEEN'S BENCH DIVISION
ON APPEAL FROM THE SENIOR COURTS COSTS OFFICE
(MASTER LEONARD)
Strand, London, WC2A 2LL |
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B e f o r e :
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PME |
Appellant |
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- and - |
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THE SCOUT ASSOCIATION |
Respondent |
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Mr Robin Dunne (instructed by BLM Solicitors of London) for the Respondent
Hearing date: 3rd December 2019
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Crown Copyright ©
Mr Justice Stewart:
Introduction
"1. The detailed assessment will proceed to a hearing on the remaining issue of hourly rates only, with a time estimate of 2 and a half hours."
"The Master was wrong to conclude that, pursuant to CPR 47.24, the scope of the appeal before him was limited to a limited form of re-hearing of the single decision taken by the ACO in respect of hourly rates at the oral hearing on 15th August 2018 and/or that the Appellant was not entitled to a "full" re-hearing of the detailed assessment as a whole."
ACO is the abbreviation used, which I shall adopt, for an "Authorised Court Officer" whose powers are provided for, in relation to detailed assessment of costs, in CPR 47.3.
The Statutory and Procedural framework
i) The jurisdiction of an ACO is in CPR 47.3, supplemented by PD 47 paragraph 3;
ii) CPR 47.15, supplemented by paragraph 14 of PD 47, deals with provisional assessments, whether by an ACO or a judge.
iii) Appeals from ACOs are governed by CPR 47.2-47.24, supplemented by PD 47, paragraph 20.
Master Leonard's decision
Factual background
Preliminary matters
i) Provisional assessment is part of the detailed assessment procedure. It falls within CPR Part 47 which is titled "detailed assessment of costs". Detailed assessment is defined under Rule 44.1 as meaning "the procedure by which the amount of costs is decided by a Costs Officer in accordance with Part 47." A "Costs Officer" can mean a costs judge, a district judge or an ACO. Provisional assessment under Rule 47.15 applies to "any detailed assessment proceedings" which are within the financial limits set out in PD 47, paragraph 14.1. Rule 47.15 is under section IV of Part 47. This deals with "the procedure where points of dispute are served". It occurs only after a request for a detailed assessment has been filed (PD 47, paragraph 14.3).
ii) An ACO is not a judge but an appointed Civil Servant. For this reason there are a number of safeguards namely:
(1) Where a party objects to the detailed assessment being carried out by an ACO the court may order it to be made by a costs judge or a district judge (CPR 47.3(2)). If all relevant parties agree that the assessment should not be made by an ACO, the court will list the hearing before a costs judge or a district judge. (PD 47, paragraph 3.2);
(2) Unlike appeals from a costs judge or a district judge which are governed by a Part 52, there is a specific procedure for appealing the decision of an ACO. This is dealt with in CPR 47.21-47.24 and 47 PD paragraph 20. The important distinctions, reflecting the fact that an ACO is not a judge are:
a) There is a right to appeal. Permission is not required.
b) The appeal lies to a costs judge or a district judge.
c) Any further appeal from the costs judge or district judge would be a first appeal within the meaning of Part 52. It would therefore have to satisfy the lower threshold for permission provided for in CPR 52.6, rather than the more stringent threshold in CPR 52.7.
(3) An appeal against the decision of an ACO is by way of re-hearing (CPR 47.24; PD 47, paragraph 20.4). An appeal from a judge under Part 52 is, by CPR 52.21, (1) "limited to a review of the decision of the lower court", absent particular circumstances. In a Part 52 appeal, unless otherwise ordered, oral evidence which was not before the lower court will not be received by the appeal court unless otherwise ordered; also the appeal court will only allow an appeal where the decision of the lower court was wrong or unjust because of serious procedural or other irregularity in the proceedings in the lower court.
Discussion
(i) A provisional assessment is not a "hearing". A "hearing" is fixed when specific items are challenged. Therefore, a "re-hearing" is a further hearing of a "hearing" that has taken place. This is the oral hearing and not the provisional assessment on paper. There was a dispute about this. The Appellant's case was that the provisional assessment on paper was a 'hearing'. It was said that the Senior Court Costs Office Guide, at paragraph 13.1, when dealing with provisional assessments says: "the bill will be referred for provisional assessment (a hearing on paper only)….." . Further, PD47 paragraph 14.3 refers to 'when the receiving party files a request for a detailed assessment hearing' and paragraph 14.3(c) requires an additional copy of any paper bill and a statement of the costs to be filed "on the assumption that there will not be an oral hearing following the provisional assessment", thereby, it is said, distinguishing between a hearing and an oral hearing. In my judgment the paper exercise is not a 'hearing'. If it were, it would be subject to the provisions in Rule 39.2 and the general rule that hearings are to be in public, subject only to the matters in Rule 39.2(3). In fact, not only are paper provisional assessments not dealt with in public, PD47 paragraph 14.4(1) prohibits the parties from attending. The distinction between what is, and what is not, a 'hearing' can also be seen to be drawn in the separate rules concerning detailed assessment of LSC funded clients' costs and costs which are payable out of a fund other than the Community Legal Service Fund – see CPR Rules 47.18(5) and 47.19(4). The wording of PD47 paragraph 14.3, though it could perhaps be better worded, does not undermine my conclusion. I suspect that following this judgment the drafting in the SCCO Guide may need some slight revision.
(ii) PD 47 paragraph 20.5 requires, if possible, a "suitable record of the judgment appealed against", and, where reasons for the decision have been officially recorded by the court, an approved transcript. If there is no official record then the officer's comments written on the bill or advocate's notes of the reasons will be acceptable. These paragraphs envisage focus upon the decision made by (or as PD47 paragraph 20.5 says "the judgment appealed against" of ) the ACO.
i) In Tanfern Limited v Cameron-MacDonald [2001] 1 WLR 1311 Brooke LJ said:
"under the old practice, the appeal to a judge was a re-hearing in the fullest sense of the word, and the judge exercised his/her discretion afresh, while giving appropriate weight to the way the lower court had exercised its discretion in the matter…"
Later at [36]-[37] Brooke LJ referred to the fact that this type of appeal still survives the advent of the Civil Procedure Rules in relation to appeals against ACOs.
ii) In EL Du Pont De Nemours and Co v St Dupont [2006] 1 WLR 2793 Aldous LJ distinguished in the Rules of the Supreme Court, between appeals under RSC Order 55 and 59 and those from those from Masters to a judge in Chambers under RSC Order 58. In the latter:
"on those appeals the judge treated the matter as though it came before him for the first time. The parties were able to bring forward fresh evidence which had not been before the Master and constrained by restrictions applicable to the Court of Appeal. The judge hearing the appeal was able to exercise any discretion afresh."
"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."
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.
APPENDIX
Powers of an authorised court officer
47.3
(1) An authorised court officer has all the powers of the court when making a detailed assessment, except –
(a) power to make a wasted costs order as defined in rule 46.8;
(b) power to make an order under –
(i) rule 44.11 (powers in relation to misconduct);
(ii) rule 47.8 (sanction for delay in commencing detailed assessment proceedings);
(iii) paragraph (2) (objection to detailed assessment by authorised court officer); and
(c) power to make a detailed assessment of costs payable to a solicitor by that solicitor's client, unless the costs are being assessed under rule 46.4 (costs where money is payable to a child or protected party).
(2) Where a party objects to the detailed assessment of costs being made by an authorised court officer, the court may order it to be made by a costs judge or a district judge.
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Provisional Assessment
47.15
(1) This rule applies to any detailed assessment proceedings commenced in the High Court or the County Court on or after 1 April 2013 in which the costs claimed are the amount set out in paragraph 14.1 of the practice direction supplementing this Part, or less.
(2) In proceedings to which this rule applies, the parties must comply with the procedure set out in Part 47 as modified by paragraph 14 Practice Direction 47.
(3) The court will undertake a provisional assessment of the receiving party's costs on receipt of Form N258 and the relevant supporting documents specified in Practice Direction 47.
(4) The provisional assessment will be based on the information contained in the bill and supporting papers and the contentions set out in Precedent G (the points of dispute and any reply).
(5) In proceedings which do not go beyond provisional assessment, the maximum amount the court will award to any party as costs of the assessment (other than the costs of drafting the bill of costs) is £1,500 together with any VAT thereon and any court fees paid by that party.
(6) The court may at any time decide that the matter is unsuitable for a provisional assessment and may give directions for the matter to be listed for hearing. The matter will then proceed under rule 47.14 without modification.
(7) When a provisional assessment has been carried out, the court will send a copy of the bill, as provisionally assessed, to each party with a notice stating that any party who wishes to challenge any aspect of the provisional assessment must, within 21 days of the receipt of the notice, file and serve on all other parties a written request for an oral hearing. If no such request is filed and served within that period, the provisional assessment shall be binding upon the parties, save in exceptional circumstances.
(8) The written request referred to in paragraph (7) must –
(a) identify the item or items in the court's provisional assessment which are sought to be reviewed at the hearing; and
(b) provide a time estimate for the hearing.
(9) The court then will fix a date for the hearing and give at least 14 days' notice of the time and place of the hearing to all parties.
(10) Any party which has requested an oral hearing, will pay the costs of and incidental to that hearing unless –
(a) it achieves an adjustment in its own favour by 20% or more of the sum provisionally assessed; or
(b) the court otherwise orders.
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VIII APPEALS FROM AUTHORISED COURT OFFICERS IN DETAILED ASSESSMENT PROCEEDINGS
Right to appeal
47.21 Any party to detailed assessment proceedings may appeal against a decision of an authorised court officer in those proceedings.
Court to hear appeal
47.22 An appeal against a decision of an authorised court officer lies to a costs judge or a district judge of the High Court.
Appeal procedure
47.23
(1) The appellant must file an appeal notice within 21 days after the date of the decision against which it is sought to appeal.
(2) On receipt of the appeal notice, the court will –
(a) serve a copy of the notice on the parties to the detailed assessment proceedings; and
(b) give notice of the appeal hearing to those parties.
Powers of the court on appeal
47.24 On an appeal from an authorised court officer the court will –
(a) re-hear the proceedings which gave rise to the decision appealed against; and
(b) make any order and give any directions as it considers appropriate.
PRACTICE DIRECTION 47 - PROCEDURE FOR DETAILED ASSESSMENT OF COSTS AND DEFAULT PROVISIONS
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Powers of an authorised court officer: rule 47.3
3.1 The court officers authorised by the Lord Chancellor to assess costs in the Costs Office and the Principal Registry of the Family Division are authorised to deal with claims where the base costs excluding VAT do not exceed £35,000 in the case of senior executive officers, or their equivalent, and £110,000 in the case of principal officers.
3.2 Where the receiving party, paying party and any other party to the detailed assessment proceedings who has served points of dispute are agreed that the assessment should not be made by an authorised court officer, the receiving party should so inform the court when requesting a hearing date. The court will then list the hearing before a costs judge or a District Judge.
3.3 In any other case a party who objects to the assessment being made by an authorised court officer must make an application to the costs judge or District Judge under Part 23 setting out the reasons for the objection.
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Provisional assessment: rule 47.15
14.1 The amount of costs referred to in rule 47.15(1) is £75,000.
14.2 The following provisions of Part 47 and this Practice Direction will apply to cases falling within rule 47.15—
(1) rules 47.1, 47.2, 47.4 to 47.13, 47.14 (except paragraphs (6) and (7)), 47.16, 47.17, 47.20 and 47.21; and
(2) paragraphs 1, 2, 4 to 12, 13 (with the exception of paragraphs 13.4 to 13.7, 13.9, 13.11 and 13.14), 15, and 16, of this Practice Direction.
14.3 In cases falling within rule 47.15, when the receiving party files a request for a detailed assessment hearing, that party must file—
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(c) an additional copy of any paper bill and a statement of the costs, including a statement of the costs claimed in respect of the detailed assessment drawn on the assumption that there will not be an oral hearing following the provisional assessment;
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14.4
(1) On receipt of the request for detailed assessment and the supporting papers, the court will use its best endeavours to undertake a provisional assessment within 6 weeks. No party will be permitted to attend the provisional assessment.
(2) Once the provisional assessment has been carried out the court will return Precedent G (the points of dispute and any reply) with the court's decisions noted upon it. Within 14 days of receipt of Precedent G the parties must agree the total sum due to the receiving party on the basis of the court's decisions. If the parties are unable to agree the arithmetic, they must refer the dispute back to the court for a decision on the basis of written submissions.
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Appeals from authorised court officers in detailed assessment proceedings: rules 47.22 to 47.25
20.1 This Section relates only to appeals from authorised court officers in detailed assessment proceedings. All other appeals arising out of detailed assessment proceedings (and arising out of summary assessments) are dealt with in accordance with Part 52 and Practice Directions 52A to 52E. The destination of appeals is dealt with in accordance with the Access to Justice Act 1999 (Destination of Appeals) Order 2016.
20.2 In respect of appeals from authorised court officers, there is no requirement to obtain permission, or to seek written reasons.
20.3 The appellant must file a notice which should be in Form N161 (an appellant's notice).
20.4 The appeal will be heard by a costs judge or a District Judge of the High Court, and is a re-hearing.
20.5 The appellant's notice should, if possible, be accompanied by a suitable record of the judgment appealed against. Where reasons given for the decision have been officially recorded by the court an approved transcript of that record should accompany the notice. Where there is no official record the following documents will be acceptable—
(a) the officer's comments written on the bill;
(b) advocates' notes of the reasons agreed by the respondent if possible and approved by the authorised court officer.
When the appellant was unrepresented before the authorised court officer, it is the duty of any advocate for the respondent to make a note of the reasons promptly available, free of charge to the appellant where there is no official record or if the court so directs. Where the appellant was represented before the authorised court officer, it is the duty of the appellant's own former advocate to make a note available. The appellant should submit the note of the reasons to the costs judge or District Judge hearing the appeal.
20.6 Where the appellant is not able to obtain a suitable record of the authorised court officer's decision within the time in which the appellant's notice must be filed, the appellant's notice must still be completed to the best of the appellant's ability. It may however be amended subsequently with the permission of the costs judge or District Judge hearing the appeal.