A solicitor has pointed out to me the surprise provisions of Practice Direction 3F – on Costs Capping. The title of the Practice Directions is deceptive. There are also mandatory provisions in relation to the filing of costs budgets at a very early stage in all cases where a party anticipates seeking costs from an estate or trust. It is an obligation that is easy to miss. Particularly for those practitioners not familiar with actions against trusts and estates.
- Where a party anticipates seeking costs out of a trust fund (including the estate of a deceased person) a costs budget has to be filed at an extremely urgent stage.
- In a Part 7 claim the costs budget has to be filed and served with the first statement of case. (This includes a defendant filing a defence).
- In a Part 8 claim the budget has to be lodged with the evidence. If a defendant does not intend to use evidence then the costs budget must be filed with the acknowledgment of service.
- The parties can, thereafter, consider applying for costs capping.
- The court can consider making a cost capping order of its own motion.
PRACTICE DIRECTION – 3F
SECTION II – COSTS CAPPING IN RELATION TO TRUST FUNDS
Costs capping orders in relation to trust funds
5.1 In this Section, ‘trust fund’ means property which is the subject of a trust, and includes the estate of a deceased person.
5.2 This Section contains additional provisions to enable –
(a) the parties to consider whether to apply for; and
(b) the court to consider whether to make of its own initiative,
a costs capping order in proceedings relating to trust funds.
5.3 This Section supplements rules 3.19 to 3.21 and Section I of this Practice Direction.
5.4 Any party to such proceedings who intends to apply for an order for the payment of costs out of the trust fund must file and serve on all other parties written notice of that intention together with a budget of the costs likely to be incurred by that party.
5.5 The documents mentioned in paragraph 5.4 must be filed and served –
(a) in a Part 7 claim, with the first statement of case; and
(b) in a Part 8 claim, with the evidence (or, if a defendant does not intend to serve and file evidence, with the acknowledgement of service).