Provisional Assessment – Is it working?

It has been over a year now since the implementation of provisional assessments, one of the recommendations made by LJ Jackson. The aim of the reforms was to introduce a way of dealing with contested costs (in cases where the amount of costs claimed is £75,000.00 or less) quickly and efficiently for both the court and the parties… but at what cost?

Problems with Provisional Assessment

  • Delay

When the provisional assessment procedure was brought in, the accompanying practice direction stated that the court should use its best endeavours to undertake a provisional assessment within 6 weeks. However, in our experience, it has not been uncommon to see cases take up to 4 months to be listed for a hearing. A recent example, following the request for provisional assessment being submitted on 10th June 2014 at Bournemouth & Poole County Court, the hearing was scheduled for 25th September 2014.

In hindsight, it may have been wiser had the Ministry of Justice not unexpectedly decided to triple the upper limit from the pilot level of £25,000.

  • Listing Directions & Mixed Orders

The orders being returned by the courts have not in themselves been consistent. Some District Judges have made directions requesting for the entire solicitor’s file of papers, scheduling the case for a joint settlement meeting and requesting bundles, which is probably not what LJ Jackson had in mind.

  • Negotiating an assessed Bill/Requesting an Oral Hearing

The problems do not stop there as both parties must then calculate the final figure as assessed and then seek to agree a figure between them. This often involves entering into further protracted correspondence with the opposing party and moreover increases costs of costs-proceedings. This additional work is not always recoverable and where parties cannot agree the only solution is to request an oral hearing, as some District Judges will simply not consider written submissions.

So where does this leave us now?

Provisional assessment as it stands seems to be a lottery and one must question how a judge can consider the reasonableness of legal costs incurred up to the value of £75,000.00 without considering the party’s papers in great detail.

Master Peter Haworth, one of three Senior Court Costs Office masters, certainly does not think provisional assessment has been a success. He recently suggested at a costs conference that things would need to change and further commented on the relationship between budgeting and provisional assessment. Cost budgeting approaches cases in phases, existing bills list items chronologically. Master Haworth was of the opinion that the two did not link, and only through their harmonisation could this lead to a more consistent approach to civil costs. However, it could take up to 18 months to come up with a solution and all the current costs software would have to be changed.

A sensible notion from Master Haworth, though it begs the question of why these issues were not fully considered prior to the reforms. In theory, the rolling out of the provisional assessment scheme provided a real opportunity to make the costs of assessment more reasonable, proportionate and affordable. However, it seems the judiciary has not reached their goals with provisional assessment and instead we are subject to the ongoing inconsistency and delay.

Overall, proceeding to a provisional assessment hearing is not a particularly attractive proposition for the parties, given the potential for lengthy delays, increased work in complying with directions orders and that the provisional assessment is unlikely to be the end of the matter with disputes over the final amount assessed as well as provisional assessment costs. Our view at Ontime Costs is that, more than ever, the parties should engage fully in negotiations both before and during Detailed Assessment proceedings in order to reach amicable and sensible agreements without involving the court. Of course, this is not always possible and we can only hope that with time the process becomes more streamlined, cost effective and produces more uniform results across the courts.