On 13 January 2012 Lord Justice Jackson published his report on the Provisional Assessment Pilot.
Provisional assessment is a procedure whereby the court provisionally assesses costs on paper, that is without an oral hearing, and if either party is dissatisfied it can seek an oral hearing, but will pay the costs of that exercise if it does not achieve a 20% improvement upon the provisional assessment.
The idea originates from Chapter 45 of Lord Justice Jackson’s Final Report, which recommended that such a scheme should be piloted in respect of bills up to £25,000 and since 1 October 2010 a pilot has been running in Leeds,Scarboroughand York County Courts.
The report concludes that the pilot has been a success and should be rolled out nationally. The current rules are set out in Practice Direction 51E of the Civil Procedure Rules and the report suggests that these be improved in that:
(i) there should be a cap of £1,500 in relation to the costs of a provisional assessment;
(ii) when lodging documents for provisional assessment the parties should file
(a) any open offer and
(b) in a sealed envelope, any offer under CPR Part 36.
(Currently it is debatable whether the Part 36 procedure applies to detailed assessment proceedings, but it certainly will do once other Jackson-related reforms recently approved by the Rules Committee are implemented).
(iii) the Practice Direction should require any party requesting an oral hearing to specify
(a) what aspects of the provisional assessment it disputes; and
(b) a time estimate for the hearing.
(iv) the Practice Direction should require the parties to agree and then file the final costs calculation after the district judge has annotated his decision on Precedent G, with liberty to apply.
Any oral hearing will be conducted by the District Judge who made the provisional assessment on paper; an oral hearing is not an appeal but rather “a second stage of the process before the assigned district judge”.
An appeal will be to a Circuit Judge.
This reform is likely to be introduced at the same time as the other reforms stemming from the Jackson Report and the consultation on County Court reforms and the proposals contained in the Legal Aid, Sentencing and Punishment of Offenders Bill, currently limping its way through Parliament.
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