A party’s right to appeal from an oral hearing that follows a provisional assessment is limited to decisions made at the hearing, the High Court has ruled.
Mr Justice Stewart upheld the decision of Master Leonard in the Senior Courts Costs Office (SCCO) that allowing a party to re-open on appeal provisional assessment decisions not made at the oral hearing was contrary to the overriding objective.
In PME v The Scout Association [2019] EWHC 3421 (QB), Master Leonard dealt with the claimant’s appeal from the assessment by Ms Kenny, the SCCO’s principal costs officer.
Following her decision on paper, the hearing before Ms Kenny dealt solely with the question of hourly rates and Master Leonard’s decision was limited to that too.
CPR 47.24 provides that, on appeal from decisions of authorised court officers (ACOs) like Ms Kenny, the court will re-hear “the proceedings which give rise to the decision appealed against”. The appellant, PME, argued that those proceedings were the detailed assessment as a whole.
But Stewart J said the provisional assessment was not a hearing. Though the SCCO guide refers to it as “a hearing on paper only”, Stewart J said it did not meet the CPR criteria to be a hearing, such as the need to be in public.
“I suspect that following this judgment the drafting in the SCCO guide may need some slight revision,” he observed.
The judge continued: “Therefore, the correct construction of the ‘decision’ of an ACO in the detailed assessment proceedings (CPR 47.21), read in conjunction with 47.24, which is that the court ‘re-hear the proceedings which gave rise to the decision appealed against’, provide that the only decision which can be appealed and re-heard is the oral decision by the ACO.
“This is notwithstanding the fact that PD47 paragraph 14.4(2) refers to the results of the paper provisional assessment as ‘decisions’ and that CPR 47.21 enables a party to appeal ‘against a decision’ in the detailed assessment proceedings.
“If the wording needs to be explained, I would suggest that the words in the practice direction are infelicitously chosen.
“The provisional assessment on paper does not give rise to a ‘decision’ which can be the subject of an appeal.
“It would perhaps be better described as provisional assessment of items on the bill which either become binding on the parties if no oral hearing is requested or which, if an oral hearing is requested, gives rise to decisions capable of being appealed.”
Stewart J pointed to the costs consequences of failing to improve by 20% on the provisional assessment at the hearing, and how allowing a full appeal when only some points were taken at the hearing would have adverse consequences.
“One may posit the example of a bill claimed at £50,000 where the provisional assessment was £30,000. Assume a party challenged the bill on one ground only and received only £2,000 more at an oral hearing. They would then bear the costs of an incidental to that oral hearing.
“If in the case of a provisional assessment and oral hearing by an ACO an appellant could have a full appeal on all disputed bill items, what would be the costs consequence if the one item in the oral hearing still came out at £2,000, but by reason of the other challenged items the party obtained £40,000?
“Who would then pay the costs of the hearing before the ACO? [The argument that would ensue] would be another unfortunate potential consequence of the appellant’s stance.”
The appellant’s argument would also allow either party to “keep its powder dry”. The judge said: “It is not easy to see how parties could advise their client or make sensible offers if the appellant’s submission were correct.”
He concluded: “The consequences of the appellant’s case are wholly undesirable. They involve potential substantial wastage of the court and the parties’ time and resources.
“That would be an affront to the overriding objective which requires a court to deal with a case justly and at proportionate cost.”
He specifically agreed with Master Leonard’s comment that “the claimant has had a choice at every step, of what to contest and what not to contest. The process of appeal should not represent an opportunity for a party to demand a re-hearing of decisions which that party has previously accepted”.
Sam Hayman, head of costs at London firm Bolt Burdon Kemp, who acts for PME, said: “This judgment adds some much-needed clarity to the confused rules surrounding the role of authorised costs officers especially within the context of provisional assessment.
“Despite this, the rules as presently drafted still remain unsatisfactory and I hope if nothing else this judgment starts a conversation as to the rules pertaining to costs officers.”
Roger Mallalieu (instructed by Bolt Burdon Kemp) for the appellant, and Robin Dunne (instructed by BLM) for the respondent.