Disclosure And Privilege In Detailed Costs Assessments

Lawyers who are regularly involved in detailed assessment proceedings will be familiar with the way that the Senior Courts Costs Office and other courts deal with issues of disclosure and privilege. For those less familiar with it, I start by describing the typical practice, before moving on to a round-up of recent caselaw which I hope will be of general interest.

Typical practice

The Courts do not normally follow the process of disclosure provided for by the CPR, pursuant to which all documents relevant to the issues must be disclosed. Instead, matters are usually resolved according to the principles of "election", which follows the long established Pamplin procedure. This derives its name from the decision of Hobhouse J, sitting with assessors, in Pamplin v Express Newspapers [1985] 1 WLR 689.

The issue most commonly arises, in inter partes assessments, in relation to retainer documents, where the paying party is seeking to challenge the validity of a retainer or to raise a dispute about its terms (so that, under the indemnity principle, it can take advantage of any reduction in the liability of the receiving party to its lawyers).

Guidance encourages the receiving party to disclose a redacted copy of its CFA (Hollins v Russell [2003] EWCA Civ 708, at para 220), but many resist doing so, on the basis of privilege.

The starting point is that the court should not go behind the Certificate on the Bill signed by the receiving party's lawyer, as there is a presumption of trust afforded to that signature: see Bailey v IBC Vehicles Ltd [1998] 3 AER 570.

In Hazlett v Sefton MBC [2001] 1 Costs LR 89 the Court of Appeal was concerned with criminal proceedings, but the principles have been applied to civil proceedings as well. The Court noted that there is normally a presumption that the receiving party will be personally liable for his solicitor's costs and it should not normally be necessary for him to have to adduce evidence to that effect. However, he would not be entitled to rely on the presumption if a "genuine issue" is raised by the paying party as to whether the receiving party has properly incurred costs. The case confirms, but practitioners often overlook, that merely putting the paying party to proof is not sufficient to give rise to a genuine issue.

Where the receiving party has been represented under a CFA there is normally a greater prospect of raising a genuine issue, because the technical requirements for a CFA may throw up...