Provisional Assessment of Costs has been on trial in a number of Courts for some time and is going to be extended under the new Civil Procedure Rules coming into effect from 1 April 2013.

Provisional assessment is going to be covered by CPR 47.15 and applies to detailed assessment proceedings commenced in the High Court and County Court for bills of costs totalling £75,000 or less. This is 3 times higher than the figure proposed in the Jackson Report and piloted in County Courts.

The receiving party wishing to request provisional assessment will need to file N258A with supporting papers, points of dispute and replies. An additional copy of the bill also needs to be provided, on the assumption that no oral hearing will be required, a statement of costs of the detailed assessment hearing. In addition, in a sealed envelope marked ‘save as to costs of the detailed assessment proceedings’, copies of any offers made by the parties in respect of costs should be provided.

The Court will undertake to carry out a provisional assessment within 6 weeks of the filing of the relevant documents and will then returned copies of the assessed bill, points and replies to both parties. The parties then have 14 days to agree the total of the assessed bill. If the parties are unable to agree the final figure then the matter is to be returned to the Court with written submissions from both parties for a final determination.

If either party does not agree with the provisional assessment and wishes to challenge the assessment they are required to file, and serve on all other parties, a written request for an oral hearing within 21 days of the Court’s notice of assessment. If no such request is filed and served within that period the provisional assessment shall be binding upon the parties, save in exceptional circumstances. When serving the request the party is required to identify the item or items in the court’s provisional assessment which are sought to be reviewed at the hearing and provide a time estimate for the hearing. The court then will fix a date for the hearing.

It should be noted that the party requesting the oral hearing will be liable for the costs of and incidental to the hearing unless they achieve an adjustment in its own favour by 20% or more of the sum provisionally assessed.

In respect of the costs of assessment the CPR limits costs to no more that £1,500.00 in respect of the costs of the provisional assessment. This is a relatively small amount considering that the Court fee for the assessment is included within the figure. The Court fee for detailed assessment of costs between £50,000 and £100,000 is currently £980, leaving £520.00 inclusive of VAT for dealing with the assessment proceedings.

There is not a lot known about the results of provisional assessment compared with a full detailed assessment hearing and one suspects that, like detailed assessment, the outcome of a provisional assessment will largely depend on the Judge undertaking the task. The positive to take from this development is that provisional assessment should be undertaken within six weeks from the date of request, which should be an improvement on the unpredictable listing policies we experience with detailed assessments. The caveat to this positivity is whether the Court is able to manage the increased workload about to descend upon them. If the six week timescale is achievable then costs could be fully assessed within 12 weeks of service of the bill.