Provisional assessment

Provisional assessment

Having recently attended the ACL Costs Conference in Manchester, I was interested to hear District Judge Besford’s comments on the Provisional Assessment Pilot Scheme which has been underway in Leeds, York and Scarborough County Courts since 1st October 2010 and has been extended until 31st March 2013 (after which, who knows what will happen when the new “Jackson” rules come into play?).

Legal costs draftsman advise that the scheme operates when an application for detailed assessment is made on a case where the base costs claimed are less than £25,000. If the scheme is rolled out across the country (which was originally the plan) it may be that this limit is increased to £50,000. The procedure as far as the application for assessment is concerned is similar to that for matters which fall outside of the limitation, with some additional documentation being required. However the burden is on the receiving party to alert the court staff to the fact that provisional assessment applies.

On the plus side, within six weeks of receiving the required documentation, the court must undertake a provisional assessment on the basis of the documents provided only, thus speeding up the normal process for detailed assessment. The parties will not be present and the receiving party is not required to lodge their full file of papers. Another plus point is that it is envisaged that these provisional assessments should take between 45 and 60 minutes to complete, thus saving court time.

The court may decide that the matter is not suitable for provisional assessment, in which case the receiving party will have to lodge the full file for a full assessment. If either of the parties do not agree with the assessment they can apply for an oral review on any aspect of that assessment.

Not so positive is the fact that, in order to recover any additional costs or an oral hearing, the outcome must be at least 20% better than that of the provisional assessment. This was only achieved once in the first twelve months that the pilot was running. Additional difficulties are the fact that the court will not have the full file of papers on which to base its decision, and in order for the assessment to be undertaken within the allotted time, the points of dispute and replies really need to be brief. There is also the fact that, even if the receiving party requests a detailed assessment on the basis that the matter might not be suitable for provisional assessment due to some complexities or other reason, they have no control over whether or not this will be granted.

One last – but potentially significant problem – is the fact that the more provisional assessment are requested, the more likely it becomes that the assessment will be undertaken by deputies who do not have experience in costs. This could lead to results which do not properly reflect the value of the claims for costs and may result in the receiving party losing out.

Whether the positives and negatives will matter when the new rules come into play remains to be seen, but if the pilot scheme is indeed rolled out across the country, we need to be prepared for some interesting and perhaps unfair results.