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SECTION 21 |
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21.1 |
Introduction |
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| (a) |
CPR 44.12A sets out the procedure to be followed where, before court
proceedings are commenced, the parties to a dispute reach agreement on all issues, including
which party is to pay costs, but are unable to agree the amount of those costs.
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| (b) |
Two distinct steps are required: firstly an application under CPR Part 8 seeking
an order for costs; and secondly detailed assessment of those costs.
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| (c) |
It is not appropriate for either party to take the first step unless:
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| (i) |
the parties must have reached an agreement on all the issues, including which party is to
pay the costs;
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| (ii) |
that agreement has been made or confirmed in writing; and
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| (iii) |
no proceedings must have been started and the parties, after a proper attempt at
agreement, must have failed to agree the amount of the costs.
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21.2 |
The Application Under CPR Part 8 |
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| (a) |
Either party may start costs only proceedings. The claim should be issued in the
court in which the main proceedings would have been heard if that had been necessary.
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| (b) |
The Part 8 claim form (form N208) must: (i) identify the claim or dispute to
which the agreement to pay costs relates; (ii) state the date and terms of the agreement on which
the claimant relies; (iii) set out a draft of the order sought; (iv) state the amount of the costs
claimed; and (v) state whether costs are claimed on the standard or the indemnity basis.
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| (c) |
The evidence filed in support of the claim must include copies of the documents
relied upon to prove the agreement to pay costs.
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21.3 |
Obtaining the Order for Costs |
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| (a) |
The court may make an order in the terms of the claim without the necessity of a
hearing if:
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| (i) |
the defendant fails to file an acknowledgment of service within the time allowed to do so
and the claimant has written to the court requesting an order; or
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| (ii) |
if the defendant files an acknowledgment of service stating that he does not contest the
making of an order in the terms of the claim; or
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| (iii) |
if a consent order under CPR 40.6 is filed which is signed by or on behalf of all parties
and none of them is a litigant in person and the approval of the court is not required by
any other rule.
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| (b) |
In costs only proceedings to which CPR 45 Section II applies (ie certain road
traffic accident claims where the total amount of agreed damages does not exceed £10,000)
the court must assess the costs in the manner set out in that section (ie it should allow certain
fixed recoverable costs plus success fee and disbursements: applications for greater amounts
will be entertained only if the court considers that exceptional circumstances make it
appropriate to do so).
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| (c) |
In cases in which CPR 45 Section II does not apply, the court will dismiss the
claim without a hearing if it is opposed, ie, if the defendant files an acknowledgment of service
stating that he intends to contest the proceedings or to seek a different remedy. A claim will not
be treated as opposed and therefore dismissed merely because the defendant states in an
acknowledgment of service that he disputes the amount of the claim for costs.
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| (d) |
Standard forms of order commonly made in the SCCO under CPR 44.12A are
illustrated in the Appendix, below, para A-5.
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| (e) |
Unless all parties consent the order for costs will not include an order for a
payment of costs on account. In costs only proceedings, the only issue to be decided by the
court when making the order is whether or not there should be an assessment.
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21.4 |
Conducting the Detailed Assessment Proceedings |
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| (a) |
An order for costs made under CPR 44.12A will be treated as an order for the
amount of costs to be decided by a detailed assessment to which Part 47 applies, as to which, see
Sections 3 to 17, above.
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| (b) |
As to the receiving party's entitlement to apply for an interim costs certificate once a request for a detailed assessment hearing has been made, see para 8.5 above.
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| (c) |
In cases in which an additional liability is claimed (as to which, see Section 19,
above) the court will have regard to the time when and the extent to which the claim has been
settled and to the fact that the claim has been settled without the need to commence proceedings.
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| (d) |
CPR 45.13 and 45.14 provides that a costs penalty will be imposed upon any
claimant in proceedings governed by CPR 45 Section II who claims costs greater than the fixed
recoverable costs plus success fee and disbursements but fails to achieve an increase greater than
20% of the amount in respect of fixed recoverable costs: the claimant will be awarded only the
fixed recoverable costs (unless in fact a lower sum has been assessed), plus success fee, plus
disbursements and will be ordered to pay the defendant's costs of the proceedings.
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