Cost Assessment

Hi,
I had a cost order seperatly on paper. As per order I will have to pay half of the finance proceedings costs to other side. Cost is subject to assessment if not agreed. Other side put forward very high cost in final hearing.
During 3 years, I was represented by solicitor for about 1.5 years and then self represented and used direct assessed barrister for my hearings. He was represented by solicitors whole time.
I want to appeal cost order or assess cost? but dont know anything and I guess again it would be more cost involved during the process.
Can someone help me to tell the process of appeal or assess the cost? help me to reduce the cost?
Thanks

The purpose of an appeal is to overturn an order on the basis of error, omission of deceit. Which do you claim? It is often the case that people want to appeal an order because they don't like it - those appeals would normally fail.

If the payment of costs is appealed you would have to look behind the reason why the order (for costs) was made in the first place. I am going to assume that either an offer was made which ought to have been accepted or litigation conduct was a factor. Does that sound relevant to your situation at all?

In relation to assessment of costs - the process varies depending upon the amount claimed. If the costs sought are below £75,000 there is a process called provisional assessment where the following procedure applies:

1. The receiving party serves a bill of costs on the paying party

2. The paying party has 21 days to serve points of dispute and make an offer of settlement

3. The receiving party has 21 days to serve (optional) replies to points of dispute.
4. If there is no settlement the receiving party will apply to the court for provisional assessment.

5. The Court will carry out an assessment of costs based upon the bill, the disputes and the replies.

6. The parties then attempt to agree the arithmetic (the judge will make reductions but won't do the arithmetic), the order for costs (the costs of the costs assessment which are capped on provisional assessments at £1500 + VAT + the court issue fee) and the interest payable.

7. If the provisional assessment is not agreed wither party can apply for a review of the assessment before the same judge who carried out the provisional assessment. The party that applies has to improve upon their position by 20% or more in order to obtain their costs of the review (which are uncapped) and, more importantly, to avoid paying the other side's costs of the review.

Finally, the Judge will have used the Form H (or Form H1 if the order was made at final hearing) to determine what a fair percentage of costs should be ordered. In this case it was 50% so this amount should be around 50% of the Form H(1) costs - that form would have been in the court bundle and served upon you by the other side.

Charles

there is some issues posting here. I have posted 2 times an also sent a private message but looks like it is disappeared from here.

Thanks for your response. I have few questions.
They have submitted Form-N260 with their cost submission on paper after judgement which shows very high cost. They are not providing their form-H of the final hearing. Looks like they planned and waited for judgement before submitting their cost. I remember judge mentioning a specific amount of their cost on judgement day, it means they must have submitted in the court.
I have their FDA, FDR’s Form-H, jump in the cost from FDR to final hearing is significant as per their N260. I suspect they have added child case legal cost to the finance to recover their cost.
As per finance settlement order they had to give me lumpsum amount by specific date which is passed and now they are saying that money will be offset from cost. I need lumpsum to rehouse myself with child.
I am not agreeing with their cost and asked their Form-H but they are directing me to N260. I also offered an amount to them to settle but they didn’t respond to that.
My questions:
1. Can I request court to provide me their submitted Form-H?
2. Who pays for provisional assessment and further assessments?
3. What might be the bases of cost dispute if solicitor/barrister itself helping him in terms of faking invoice etc? what are my chances to reduce the paying cost amount?
4. Can I ask their detailed invoice raised to their client from starting?
5. How assessment takes place and does court has standard price for each step in the finance matter e.g. divorce application cost between £2k to £3k?
6. How can I enforce finance settlement order to receive the lumpsum?

Is there any way I can talk to you directly please?

Thanks

It’s not clear what costs order has been made. Form N260 is meant to be used at the end of a case/hearing and is suitable only for the judge who dealt with the hearing.

In your case I suspect that the judge indicated that s/he was considering a costs order and directed that submissions be made on paper for further consideration. That was probably the purpose of the submissions and the N260 was submitted alongside in case the judge was minded to specify a sum to be paid towards the costs.

The judge instead decided that you pay half of the costs to be to be assessed if not agreed which means that a more detailed bill will have to be prepared. That bill take time to prepare and that will be added to the total which you will have to pay. This is one reason that the other side is inviting you to negotiate on the N260 as that has already been prepared. However, the N260 is fairly limited in detail and it’s certainly not transparent.

In relation to the costs of the Children Act case, the Form H specifically mentions that costs that do not relate to the financial matter should be excluded whereas the N260 does not. However, I would not expect those costs to have been included as the costs order does not relate to those proceedings. It is worthwhile asking the question though for certainty.

In relation to previous Forms H, I would expect a large increase between the stages. I separate costs into 4 stages – pre-issue, issue to FDA, FDA to FDR and FDR to Final hearing.

It is possible that the pre-issue stage can incur a lot of costs as it can take a while particularly when neither party wants to proceed to court. Once issued, the issue to FDA stage is fairly ‘light’ in costs. The FDR stage is usually twice as much as the FDA stage and the Final hearing stage is usually twice that of the FDR stage. That’s a general rule of thumb but it can go out of whack fairly easily e.g. if there is a private FDR or the final hearing is listed for more than one day.

In relation to your numbered questions:

1. The Form H is what is known as a pleading which is a document on the court file. Any document that is to be placed on the court file must also be available to the other parties to the proceedings. You should have been served with all Forms H submitted by the other side. Form the final hearing it is Form H1 which is a longer version.

2. In the case of costs proceedings, the receiving party would normally have their costs paid by the paying party. As you are the paying party the starting point is that you pay the costs. This changes depending upon what you have offered to settle and what the court decides must be paid.

In provisional assessment proceeding there is a cap of £1500 + VAT + the court fee* (which is based upon the amount claimed) which are ‘costs of the assessment’. If the matter goes further e.g. a review hearing, there is another payer of costs which is not capped.

3. I don’t know how to answer this. Upon what basis do you think a solicitor or barrister fake an invoice?

4. Any bill that is sent to their client is confidential. The procedure is to prepare a documents known as a ‘Bill of Costs (Detailed Assessment)’ which sets out in detail the costs that are being sought from you. Within that bill there are various certificates that have to be signed including that the bill is accurate and does not exceed the amount that has been paid by the client.

5. See 2.

6. Yes, you can make an application to the court if a party is in default of the terms of the order. Rather than waste your money, it is better to give the other side an opportunity to comply and warn them that you will make an application if the lump sum is not paid.

Unfortunately I have limited time to contribute to this site and prefer to answer open in the open forum in order to assist others. I understand if this is less than ideal.

Charles




* www.justice.gov.uk/courts/procedure-rule...led-assessment#47.15

Once again, thank you for the help!!

1. Can I request Pleading (Form H) from the court? if yes then what is the procedure?
2. I am requesting judgement hearing transcript via EX107 where judge mentioned his cost. I am wondering where I should be sending this and do I have to choose the transcript company from the given list on the form? My final hearing took place in Watford court but judgement hearing happened in some other court, so which court I should be mentioning on the form?
3. They submitted their ES1 in PTR just before final hearing which also says completely different amount then N260. Can it be evidence?
4. I am saying that they are faking the cost because I know what per hour rate, she was charging from my ex but in the Form N260 it is way higher. also they have been applying all sorts of tricks/fake docs during 3 years of proceedings.
5. They are trying to offset lumpsum with cost amount and mentioned that they will apply stay on the order to get this offset. I need lumpsum to rehouse myself plus kid and I can pay cost in installments. But just wondering what are the chances they will be successful in their stay order?
6. Is it D11 form to apply for their non-compliance?

Thanks

1. You can try - by asking by letter - but the court will probably say that whatever is on court file you should have and if you don't have it you can ask the other side.

2. Do you have permission to obtain a transcript? Normally you would require a transcript when you wish to appeal an order and you file the notice of appeal then obtain the transcript and file and serve this along with the rest of the appeal papers. You do have to choose from the list of court approved transcribers.

3. The ES1 and the N260 are used for different purposes. It would be like comparing apples with oranges. What is your purpose?

4. You will need evidence to support these assertions otherwise they will be disregarded completely. For instance, what evidence do you have that the hourly rates being charged are different from those being claimed?

5. This is a tough one. The Judge obviously decided that a costs order was merited and made this knowing that you would have to pay it within 14 days of a final costs order (unless you can persuade the court that this was not possible due to your finances). It would odd if the Court didn't consider a stay of the order given those circumstances but also the Court must have ordered the lump sum in the knowledge that you would need it to re-house. This is a matter of legal submission for which you should seek legal advice.

6. D11 is a general application which can be used to enforce a direction/order of the court. You need to consider your position carefully as a failed application is likely to increase your costs liability and a costs order is likely to be made against you in those circumstances.

Charles