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SECTION 10 |
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10.1 |
Receiving Party's Duty to Lodge Documents |
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| (a) |
Unless the court directs otherwise, the receiving party must file with the court
the papers in support of the bill not less than seven days before the date of a detailed
assessment hearing and not more than 14 days before that date.
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| (b) |
The CPD gives further details about "the papers in support of the bill" (see
para 8.7, above). In respect of each item of costs claimed in the bill the papers in support
include all of the papers relevant to that item, whether they are favourable to the receiving
party's case or unfavourable, or whether or not they are confidential or privileged. The
lodging of documents as required by the CPD does not amount to a waiver of any privilege in
those documents.
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10.2 |
Court's Power to Order Production of Documents |
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| (a) |
The court may direct the receiving party to produce any document which, in
the opinion of the court, is necessary to enable it to reach its decision. These documents will
in the first instance be produced to the court, but the court may ask the receiving party to
elect whether to disclose the particular document to the paying party in order to rely on the
contents of that document, or whether to decline disclosure and instead rely on other evidence
(CPD 40.14).
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| (b) |
The court's power to order production to the court of documents which the
receiving party does not wish to produce will not be used to require production of those
documents to the paying party. Because many of the documents in support of a bill are
confidential and/or privileged there is no disclosure stage in detailed assessment hearings as
there is in other civil proceedings.
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10.3 |
Deciding Points of Dispute in Favour of the Paying Party |
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If, having examined papers lodged with or produced to the court, the court makes a decision
based on those documents wholly in favour of the paying party, the court will so inform the
parties and give brief reasons therefor if necessary. The paying party has no right to see the
documents relied on by the court in reaching a decision which is wholly favourable to the
paying party.
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10.4 |
Deciding Points of Dispute in Favour of the Receiving Party |
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| (a) |
If, having examined documents lodged with or produced to the court, the court
is minded to determine a point of dispute wholly or partly in favour of the receiving party it
does not automatically follow that the paying party will have a right to see all the documents
relied on by the court in reaching that decision. The court should enquire of the paying party
whether the paying party is content to accept that ruling (subject to appeal) or whether the
paying party wishes to see the documents relied on by the court in making the ruling. In
many cases the paying party will be content to agree that the court alone should see those
documents. The alternatives (see below) may lead to additional delay and an increase in
costs.
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| (b) |
If the paying party declines to accept the court's ruling without inspecting
documents, then, save as explained in paras (f) to (h) below, the court will put the receiving
party to his election between showing the documents in question to the paying party or not
relying upon them and offering to prove the fact of which the document is evidence by some
other means. Alternatively the receiving party may decide to withdraw the claim for the costs
of it. The court may give directions enabling the receiving party to have a fair opportunity to
provide other evidence. In reaching its final decision on the issue the court will not take
account of documents which the receiving party has elected not to show to the paying party.
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| (c) |
If the receiving party elects to show the documents in question to the paying
party, the court may give directions to ensure that this is done fairly and that the paying party
is given a reasonable opportunity to consider the documents and to make observations
thereon. When showing documents to the paying party it is permissible to blank out parts of
the disclosed documents on the ground that they are irrelevant to the issue of costs.
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| (d) |
It is standard practice for the client care letter (redacted where appropriate) to
be shown to the paying party. The Court of Appeal has held that it should become usual
practice for a conditional fee agreement (redacted where appropriate) to be disclosed for the
purpose of costs proceedings in which a success fee is claimed. If a conditional fee
agreement with a success fee relates to court proceedings the Conditional Fee Agreements
Regulations 2000 state that the agreement must provide for disclosure of the reasons for
setting the percentage increase at the level stated in the agreement.
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| (e) |
No production of documents is appropriate where the court determines that the
point of dispute raised is spurious or vexatious only.
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| (f) |
No production is appropriate in respect of documents which the court did not
rely upon in reaching its decision and which the receiving party did not deploy.
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| (g) |
The court will not compel production of any documents where it is
unnecessary or disproportionate to do so.
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| (h) |
The court will exercise its discretion to put the receiving party to his election
having regard to the requirements of fairness and justice. In particular it may consider
whether the production could be made to the paying party's legal representatives only, and
whether any confidential matter which is irrelevant can be excluded from the production.
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| (i) |
If, in respect of any privileged documents, the receiving party elects to waive
its privilege by showing them to the paying party, that waiver is for the purposes of the
detailed assessment only and the privilege can be re-asserted in any subsequent context.
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10.5 |
Avoiding or Minimising the Expense and Delay of Production |
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The production of documents at a detailed assessment hearing may well cause substantial
delay to that hearing and may prejudice or embarrass any appeal made in the proceedings in
which the costs were awarded or in any similar proceedings between the same parties.
Receiving parties should therefore consider in advance what voluntary disclosure to their
opponents they are willing to make and, how such disclosure can be achieved before the
detailed assessment hearing without substantially damaging any privilege they wish to retain.
If necessary, directions can be made by consent. Directions can also be made providing split
hearing dates or times so as to facilitate the orderly disposal of the points in dispute. If
production of documents may substantially prejudice or embarrass any appeal or linked
proceedings, orders can be made adjourning the detailed assessment proceedings pending the
determination of the other proceedings and directing the payment of interim costs certificates in the meantime.
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