The Right to Reply
We have recently received the following orders following a request to have Bills of Costs provisionally assessed:
It is ordered that
3. The Claimant shall file and serve an amended Precedent G incorporating a reply which complies with CPR47PD 12.1…In the event that the Claimant fails to comply with this paragraph of this order, the provisional assessment will take place on the basis of the Bill of Costs and the Points in Dispute only.
Reasons for This Order (Paragraph 3)
The Claimant’s optional reply does not comply with CPR 47PD 12.1 in that it is not confined to points of principle and concessions only, and contains prolix specific denials
It is ordered that
1.The Court notes that the Claimant does not reply to a number of Points of Dispute.
Case 1: The Replies to the Points of Dispute were not simply limited to Preliminary Points and Concessions. There were no Preliminary Points and the Claimant did not wish to make many concessions. The Claimant did however wish to exercise his right to reply (the CPR giving the Claimant an option to Reply) to the many attacks the Defendant made upon the Claimant’s costs. Specific (not general) denials were made for a reason; the Claimant fundamentally disputed the Point raised by the Defendant and wished to make the court aware of the Claimant’s position.
Case 2: The Replies to the Points of Dispute were simply limited to Preliminary Points and Concessions. The Claimant did not wish to make many concessions, however, the Claimant limited his Replies to the format prescribed by CPR 47PD12.1.
In Case 1 the District Judge considered the Replies were non-compliant with the rules.
In Case 2 the District Judge observed and recorded in the order that the Claimant did not reply to a number of the Points of Dispute. For this to be recorded in the order one would assume that the District Judge considered this to be relevant and whilst the impact of this is not yet known, the inference is that this particular District Judge considered the lack of reply to be a failing on the part of the Claimant.
The contradiction of the orders highlights the lacuna in the CPR and the receiving party’s right to respond to Points of Dispute to ensure his Article 6 Human Rights are protected.
In provisional assessments, if it is an absolute mandatory requirement that the Replies to the Points of Dispute are limited to Points of Principle and concessions, not only is the receiving party denied the opportunity to advocate their case at Court, but they are also prevented from responding to the paying party’s Points of Dispute in any way other than in reply to ‘points of principle’ or concessions.
In the absence of a Reply to anything other than points of principle, as likely in Case 2, the provisional assessment process may result in claims for costs being assessed in a way whereby a paying party’s Point of Dispute is preferred over the absence of a Reply. There is surely an issue of infringement to the Receiving Party’s right to a fair trial under article 6 of the EU Human Rights Convention.
By Nicola Brett, Associate and Costs Lawyer