25 May 2022

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Are pre-action applications proceedings for purposes of QOCS? Rule committee to investigate

Committee also hears that Civil Justice Council consultation on broad principles of future of costs to be published soon

Sir Geoffrey Vos announced review at last year’s ACL conference

The costs sub-committee of the Civil Procedure Rule Committee (CPRC) is to consider whether pre-action applications are proceedings for the purposes of qualified one-way costs shifting (QOCS), it has emerged.

The recently released minutes of the CPRC’s 1 April meeting recorded that this issue was raised by the lacuna sub-committee, which noted that in Waterfield and ors v Dentality Ltd [2020] 11 WLUK 223 (13 November 2020), it was decided that pre-action applications for a group litigation order were not ‘proceedings’ within the meaning of CPR 44.13 and so the QOCS regime did not apply. The QOCS regime would apply to a post-issue application of the same sort.

The decision was unreported and the lacuna sub-committee said no reported decision addressed the issue. Its suggestion that the costs sub-committee should look at whether the issue needed clarifying was approved by the CPRC.

Meanwhile, at the CPRC’s annual open meeting last week, the Master of the Rolls, Sir Geoffrey Vos, said the Civil Justice Council’s holistic review of costs – which he revealed at last year’s ACL conference – would soon issue for consultation an interim report on the broader principles, rather than detailed recommendations. It will then be finalised in the autumn.

The guideline hourly rates, costs budgeting, pre-action costs and fixed costs were the main issues, he said, according to a report of the meeting by Helen Spalding, an associate in the costs team of Clarion Solicitors. Lord Justice Birss, deputy head of civil justice, is heading the review.

“It was confirmed that there may be recommendations to the CPRC following the CJC’s report as it is important to look at how these issues interact and to ensure that things are working smoothly,” she recounted.

The meeting also heard that some minor changes to the N260 were suggested during a consultation last year on the electronic statement of costs.

Ms Spalding wrote: “These fall into two categories, firstly, changes arising from the [guideline hourly rate] report involving a certificate to show where the work was carried out and, secondly, minor changes to make the form more user friendly. There is currently no time frame for those changes.”

Also, work to resolve conflicting judgments regarding the recoverability of court fees between the parties when a party has chosen not to seek a fee remission is on hold while the Ministry of Justice considers the policy implications.