DENTON DOES NOT APPLY TO DELAY IN PROVISIONAL ASSESSMENT

I am grateful to Simon Anderson of Park Square Barristers for his note of the judgment of Deputy District Judge Hill yesterday (4th March 2016) in the case of Martin -v- The Leeds Teaching Hospitals NHS Trust. This decision is important in terms of the specific rule in relation to provisional assessment and a general principle of construction.

“It is no coincidence that the time for filing and serving an application for an oral hearing is the same period as that permitted for filing and serving appeals, namely 21 days. Just as ignorance of the appeal provisions cannot be said to be a good reason for non-compliance, so too should CPR r.45.15(7) be complied with to the letter. Leaving matters to the last moment is not only a poor excuse, but makes it all the more important that the litigator should be familiar with the rules so as to ensure compliance.”

THE CASE

  • A provisional assessment had taken place and the claimant (the receiving party) filed a request for an oral hearing on the very last date allowed by the rules.
  • However the claimant failed to serve a copy of the request on the defendant.

THE FINDING

  • The claimant failed to comply with CPR 47.15. by omitting to serve the defendant.
  • The rules provide that if no request for an oral hearing was made in time the assessment is binding on the parties “save in exceptional circumstances”.
  • There were no exceptional circumstances in the current case.
  • The principles of CPR 3.9, Mitchell and Denton were of no relevance since CPR 47.15 was a self-contained rule.

THE PRACTICAL SIGNIFICANCE OF THIS

It is worth noting that this is not a random decision from a deputy district judge. Robert Hill was a full-time judge for 20 years before his retirement. He was a long-standing member of the Rules Committee and remains a member of the White Book Senior Editorial Board.

THE JUDGMENT

IN THE LEEDS COUNTY COURT CLAIM No. A45YP121
B E T W E E N:
AVRIL MARTIN Claimant
THE LEEDS TEACHING HOSPITALS NHS TRUST Defendant
ABBREVIATED NOTE OF JUDGMENT
Friday, 4 March 2016
Deputy District Judge Hill
  1. This is an application for relief from sanctions pursuant to CPR r.3.9 and 47.15(7).
  1. The Claimant suffered a minor trip and accepted an offer of £2,600 in damages. On 1st December 2015 the Court ordered the provisional assessment of costs in the amount of £4,159.10. The original claim for costs had exceeded £14,000. It is an agreed fact that the Order was received by the parties on 2nd December 2015.
  1. It accepted that on 23rd December the Claimant’s costs representatives, Kain Knight Ltd, filed a request for an oral hearing. It was filed by e-filing, fax and DX. It is the Defendant’s case that the Claimant failed to serve the request for an oral hearing in compliance with CPR 47.15. Thus the Claimant bears the onus of proving that there are exceptional circumstances that justify hearing an oral assessment.
  1. CPR 47.15 sets out the process for provisional assessment, as follows:
Provisional Assessment
47.15(1) This rule applies to any detailed assessment proceedings commenced in the High Court or a 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) The court will not award more than £1,500 to any party in respect of the costs of the provisional assessment.
(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.
  1. Part 47.15 is intended to be a both a final and proportionate form of costs assessment. It is unique in the CPR as containing both the sanction and the test for relief in the same rule. This perhaps reflects the fact that it is not concerned with the substantive claim, but solely with the issue of costs. If no such request is filed and served within that period, the provisional assessment shall be binding upon the parties, save in exceptional circumstances.
  1. There is not dispute in the present case that the application for an oral hearing was correctly filed, but that is only half of the requirement of the rule. The application was not properly served. An email was sent to the Defendant at 14:40 on 23rd December 2015. The Claimant accepts that this did not amount to valid service, which was not accepted by email. A letter was sent the same day, and was deemed served on 29th December 2015.
  1. In interpreting CPR r.45.15 I look to CPR r.1.1(2)(f) and the importance of enforcing compliance with rules, practice directions and orders. In doing so I conclude that the breach in this instance was significant, as to allow relief would be to take away the finality of the provisional assessment.
  1. The reason given for the breach of the rule is that the costs draftsman made a mistake in that the relevant rule was overlooked.
  1. Ignorance or oversight of a rule is not a good reason. As to what does and does not amount to a good reason, see paragraph 41 Mitchell v NGN Limited [2013] EWCA Civ 1537 :
“If there is a good reason for it, the court will be likely to decide that relief should be granted. For example, if the reason why a document was not filed with the court was that the party or his solicitor suffered from a debilitating illness or was involved in an accident, then, depending on the circumstances, that may constitute a good reason. Later developments in the course of the litigation process are likely to be a good reason if they show that the period for compliance originally imposed was unreasonable, although the period seemed to be reasonable at the time and could not realistically have been the subject of an appeal. But mere overlooking a deadline, whether on account of overwork or otherwise, is unlikely to be a good reason. We understand that solicitors may be under pressure and have too much work. It may be that this is what occurred in the present case. But that will rarely be a good reason. Solicitors cannot take on too much work and expect to be able to persuade a court that this is a good reason for their failure to meet deadlines. They should either delegate the work to others in their firm or, if they are unable to do this, they should not take on the work at all. This may seem harsh especially at a time when some solicitors are facing serious financial pressures. But the need to comply with rules, practice directions and court orders is essential if litigation is to be conducted in an efficient manner. If departures are tolerated, then the relaxed approach to civil litigation which the Jackson reforms were intended to change will continue…”
  1. This is not a case to which Denton [2014] EWCA Civ 943 3 applies. CPR 3.9 is concerned with the substantive claim, whereas 45.15(7) is a self-contained rule and concerns nothing more or less than the provisional assessment of costs. Therefore the 3-stage test is of no application. The Claimant must demonstrate the existence of exceptional circumstances.
  1. It is no coincidence that the time for filing and serving an application for an oral hearing is the same period as that permitted for filing and serving appeals, namely 21 days. Just as ignorance of the appeal provisions cannot be said to be a good reason for non-compliance, so too should CPR r.45.15(7) be complied with to the letter. Leaving matters to the last moment is not only a poor excuse, but makes it all the more important that the litigator should be familiar with the rules so as to ensure compliance.
  1. CPR r.45.15 “means what is says, and says what it means”. The application for an oral hearing was filed, but not correctly served, and the Claimant has failed to establish the existence of any exceptional circumstances. The preliminary assessment is therefore final and the Claimant’s application for relief shall be dismissed.

3 comments

  1. Michael Bacon · · Reply

    It is of course an interesting case but I do wish some of these barristers would recognise the doctrine of precedent – or perhaps their university lecturers did not deal with it!! However experienced a District Judge may be, his or her decisions are never binding precedent. I am sure that the decision in this case was both reasonable and correct but it would need a High Court judge at least to enable the decision to be authoritatively cited.I suggest that if reporting district judge decisions in future, a caveat as to the effect of their judgment is included in the report so no one is misled.

    1. I agree with some of what you say Michael. But this is a blog and not the law reports. I work on the principle that readers are interested in the way that these matters are being interpreted on the ground. The the main function of the blog is to warn people of risks. I am sure that virtually all the readers of the blog are familiar with the doctrine of precedent and that this is not a binding authority. It is, however, unlikely that the construction of this particular rule will ever reach a High Court judge. For the time being this case is all we have on the topic. I will let you know if there is an appeal.

  2. […] Exall gives some helpful context to Martin in his article Denton Does Not Apply to Delay in Provisional Assessment. In summary, the receiving party filed a request on the very last day allowed by the rules, but […]

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