Edward Mackereth on the new Civil Procedure Rules for costs. Edward Mackereth is a solicitor in the litigation department at Nicholson Graham & Jones.
The Civil Procedure Rules (CPR) have introduced two new ways that successful litigants can recover some costs without waiting for a detailed assessment.
The first procedure, Rule 44.3(8), can be employed when an order for costs is made. This procedure was used by Mr Justice Jacob in Mars (UK) Ltd v Teknowledge Ltd (No 2) in July.
Mr Justice Jacob saw no reason for making successful parties wait for recovery of their costs, and he looked to interim payments as a closer approximation to justice.
He held that in the normal run of events, an interim order should be made and the successful party should be paid an amount equivalent to that which it would almost certainly recover on the detailed assessment.
Another method the successful party can use is Rule 47.15. Under this rule an application for an interim costs certificate can be made immediately upon filing a request for a detailed assessment hearing, and an interim costs hearing is likely to take place within weeks rather than months.
The CPR advise that the court may issue an interim certificate "for such sum as it considers appropriate".
However, Costs Judge Wright, hearing an interim costs application, welcomed any submissions which might assist him.
These could include submissions as to which costs were unarguable and which ought to be left to detailed assessment, an estimate of the delay caused by waiting for a detailed assessment, and the degree of hardship that such a delay would inflict upon the applicant.
The conduct of the unsuccessful party could also be put to the Costs Judge.
Costs Judge Wright made an order that entitled the successful party to recover a significant proportion of its costs a month after filing a request for a detailed assessment hearing.
The Supreme Court Costs Office reports a steady rise in the number of Rule 47.15 applications which, together with Rule 44.3(8) will help alleviate the frustration understandably felt by successful litigants who have prevailed at court, obtained a costs order, and yet previously have had to wait many months to recover any of the costs to which they are entitled.