First of all, we need to makeone specific point. Bills in the Supreme Court are presented in Form H, whichhas become a central part of the wider litigation process.
As this style of presentingcosts was introduced some little time ago, I’m hoping that readers areincreasingly familiar with how this works. And, not surprisingly, my advice isto instruct an independent costs specialist. Indeed, the well-known Mitchell casecontained salutary lessons for us all, in that the defendants sent their budget off to independentspecialists; the claimant did not and their solicitors are then litigated withno real hope of recovering costs.
One golden rule applies whenpreparing the Bill of Costs – this must be done within three months of the dateof the order. In observing this time limit, we need to note that this is amandatory requirement, whereas in the other Courts, the only sanction is that,if you exceed the three-month limit, you lose accrued interest thereafter.
It should of course be notedthat you can only obtain an extension if this is granted within the 3-monthperiod. As a practical consideration, if you wish to make application outsideof the 3-month period, any request needs to be made using Form 2. The SupremeCourt will then consider all the circumstances listed at PD13 8.2, whenarriving at a decision whether or not to permit the extension request.
Additionally, there areseveral other significant practice differences that it is necessary to takeinto account, when dealing with the Supreme Court. Firstly, all documents aresent to the Court itself, as well as to the other parties. In this regard,please note that it is possible to correspond by email with the Supreme Court CostsClerks, who I have found to be very helpful and accommodating.
Secondly, practitioners need to note thatthere is no Notice of Commencement N252. In fact, the Points of Dispute (PODS) runfrom date of service, while the Bill and the Replies also need sending to theSupreme Court, as well as being served on all other parties. Moreover, if noPODS are served, the Court will provisionally assess the Bill at that stage.
At this stage, the partiesshould be aware that they can still amend PODS and PORS in the light of theprovisional assessment hearing, where the case proceeds to oral hearing.Moreover, if either party remains unhappy with the outcome, post-oral hearing, thatparty can appeal for a review to be heard by a single Justice.
However, the parties must beaware that any application for review will only take into account a point ofprinciple, and will not question the amount allowed at previous determination. Inorder to commence review, the application must be made within 14 days of the DAhearing. Any review must state detailed grounds for the objection.
Other differences in theSupreme Court can be summarised as follows:
There is no need to use a FormN258 to request a hearing. To do this, you need only ask the Supreme Court itself.
The Applicant needs to pay2.5% of the Bill upon service.
If the case settles less than21 days before hearing, the applicant party needs to pay the Court fee.
On another note, the agreedcosts figures following hearing and assessment must be sent to Costs clerk nolater than 1 month after the assessment. Both parties need to sign the form Hto confirm that the figures referred to are agreed.
Broadly, the assessment ofcosts in the Supreme Court is governed by the SC Rules 2009. However, incircumstances where the Supreme Court Rules and Practice Directions do notcover a particular circumstance, CPR & PD 44-47 will be applied, albeit atthe discretion of the Costs Officer.
Any DA will be heard by CostsOfficers appointed by the President of the Court. One of these will be a SeniorCosts Judge, or a Costs Judge appointed by Senior Costs Judge. PracticeDirection 13 contains details of what is usually allowed in respect ofCounsel’s fees, Solicitors hourly rates and costs of completing form H. In thisregard, it should be noted that the Supreme Court takes a strong view of anydisproportionate use of Counsel, and will usually only allow a single Counsel.
Finally, be aware that, if youare entering into a Conditional Fee Agreement or funding arrangement, there isa requirement to inform the Supreme Court as soon as possible.
JessicaSwannell
Costs Lawyer & PracticeManager
A&M Bacon Limited
- Ends -
About A&M Bacon:
A&M Bacon is the UK's leading independent firm of CostsLawyers specialising in Defendant costs. More information at www.aandmbacon.co.uk
0+
