Discussing UK law. Links: swarb.co.uk | law-index | Acts | Members Image galleries

Failure to file statement of costs before allocation to trac

Re: Failure to file statement of costs before allocation to

Postby atticus » Sat Feb 07, 2015 4:57 pm

What do people say to this?

If the other party had served a statement of costs, the judge would have made a summary assessment of the costs southy would have to pay. But they did not. The judge ordered a detailed assessment,which he would not have done had a costs statement been served.

Ergo, it seems to me, the judge must have taken account of the failure to serve a statement of costs.

I'd be happy to run that argument in opposing the appeal.
User avatar
atticus
 
Posts: 20656
Joined: Sun Nov 11, 2012 2:27 pm
Location: E&W

Re: Failure to file statement of costs before allocation to

Postby Smouldering Stoat » Sat Feb 07, 2015 5:17 pm

Makes sense to me. The OP is in a hole, and this would be a good time to stop digging.
Smouldering Stoat
 
Posts: 6541
Joined: Thu Nov 01, 2012 6:31 pm
Location: Near the Creek.

Re: Failure to file statement of costs before allocation to

Postby Slartibartfast » Sat Feb 07, 2015 8:49 pm

I think Atti's rebuttal indisputably shows that the Judge was cognizant of the defendant's failure to serve a statement of costs. I think it is hard to resist the corollary deduction that he is likely to have considered the significance of this, or he would not have acted as he did.

One technical question - could the defendant have predicted his defence costs before knowing whether the case would proceed, and if so by which 'track' it would be heard? If this prediction would be difficult, then I suppose the Judge has reasonably decided to attach no significance to their failure.
"Judicial tergiversation is not to be encouraged"
User avatar
Slartibartfast
 
Posts: 3745
Joined: Thu Nov 01, 2012 5:06 pm

Re: Failure to file statement of costs before allocation to

Postby south1 » Sat Feb 07, 2015 9:08 pm

1.
The judge should have explained in his judgement why he takes the unusual decision to order a detailed assessment of costs instead of the summary assessment which is usual for hearing which lasts less than one day my hearing lasted only half a hour. How parties are supposed to know. However the judge does not make any reference in his judgement to costs. The only thing which is stated at the end of the transcript is

“It is the case that there has been no allocation to the small claims or any track so far”

2.
The other question is if a judge wants to award costs should he make reference to costs in his judgement?
south1
 
Posts: 907
Joined: Sun Jan 13, 2013 6:44 pm

Re: Failure to file statement of costs before allocation to

Postby atticus » Sat Feb 07, 2015 9:10 pm

The decision on costs is made after the decision on outcome. It is rare to see costs referred to on the judgment.
User avatar
atticus
 
Posts: 20656
Joined: Sun Nov 11, 2012 2:27 pm
Location: E&W

Re: Failure to file statement of costs before allocation to

Postby Smouldering Stoat » Sat Feb 07, 2015 9:38 pm

Does a detailed assessment of costs necessarily lead to a higher award than a summary assessment?
Smouldering Stoat
 
Posts: 6541
Joined: Thu Nov 01, 2012 6:31 pm
Location: Near the Creek.

Re: Failure to file statement of costs before allocation to

Postby Slartibartfast » Sat Feb 07, 2015 9:44 pm

south1 wrote:The judge should have explained in his judgement why he takes the unusual decision to order a detailed assessment of costs instead of the summary assessment which is usual for hearing which lasts less than one day my hearing lasted only half a hour.


I wonder if the duration of the initial hearing is a reliable indication for legal costs. In some cases the defendant's lawyers might have done a great deal of work before the hearing, and the swift disposal is a result of that.
"Judicial tergiversation is not to be encouraged"
User avatar
Slartibartfast
 
Posts: 3745
Joined: Thu Nov 01, 2012 5:06 pm

Re: Failure to file statement of costs before allocation to

Postby south1 » Sat Feb 07, 2015 10:03 pm

Usually a detailed assessment leads to a higher award because on addition there is the cost of the hearing of the detailed assessment. It is why usually a detailed assessment is ordered only in complicated cases and usually I think the judge should explain why a detailed assessment is necessary. Otherwise the parties will not know

There is also the question in my case of who will pay the cost of the detailed assessment hearing because I think that it is because the defendant failed to file and serve a statement of cost that the detailed assessment was ordered. Unless the judge has another reason why he took the decision to order a detailed assessment but he did speak about it in his judgment.
south1
 
Posts: 907
Joined: Sun Jan 13, 2013 6:44 pm

Re: Failure to file statement of costs before allocation to

Postby atticus » Sat Feb 07, 2015 10:15 pm

Ask the other party to let you know what they would accept, with a view to possible agreement before costs of detailed assessment are incurred.
User avatar
atticus
 
Posts: 20656
Joined: Sun Nov 11, 2012 2:27 pm
Location: E&W

Re: Failure to file statement of costs before allocation to

Postby Lurker » Sat Feb 07, 2015 10:37 pm

south1 wrote:Usually a detailed assessment leads to a higher award because on addition there is the cost of the hearing of the detailed assessment. It is why usually a detailed assessment is ordered only in complicated cases and usually I think the judge should explain why a detailed assessment is necessary. Otherwise the parties will not know


The only way to know whether the amount awarded at summary assessment would have been greater at detailed assessment would be to appeal the summary assessment. I wouldn't say that DAs lead to higher awards than SAs. I'd also say that, at times, SAs can lead to greater percentage recovery of costs than DAs: SAs are on a broad-brush basis and done in a hurry, DAs are (generally) not.

south1 wrote:There is also the question in my case of who will pay the cost of the detailed assessment hearing because I think that it is because the defendant failed to file and serve a statement of cost that the detailed assessment was ordered. Unless the judge has another reason why he took the decision to order a detailed assessment but he did speak about it in his judgment.

CPR 47.20: the receiving party (the one getting paid) is entitled to the costs of the detailed assessment proceedings except when certain conditions are met. "Loser pays" is a fundamental part of legal costs in England & Wales. PD 19 to CPR 47.20 suggests a properly-made and appropriate-value Part 36 offer might be of help.
Lurker
 
Posts: 57
Joined: Fri Jan 09, 2015 8:10 pm

PreviousNext

Return to Costs

Who is online

Users browsing this forum: No registered users and 1 guest